SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
( X ) Quarterly report pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934 for the quarterly period ended
December 31, 1993 or
( ) Transition report pursuant to section
13 or 15(d) of the Securities Exchange Act of 1934 for the transition
period from _______ to _______
Commission File Number 1-7444
OAKWOOD HOMES CORPORATION
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0985879
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2225 S. Holden Road (P.O. Box 7386), Greensboro, North Carolina
(Address of principal executive offices)
27417-0386
(Zip Code)
(910) 855-2400
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed
since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No _____
Indicate the number of shares outstanding of each of the issuer's classes of
Common Stock, as of January 31, 1994.
Common Stock, Par Value $.50 Per Share . . . . . . . . . . 20,418,606
(1)
PART I. FINANCIAL INFORMATION
QUARTERLY REPORT ON FORM 10-Q
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
For the Quarter Ended December 31, 1993
OAKWOOD HOMES CORPORATION AND SUBSIDIARIES
Greensboro, North Carolina
The condensed consolidated financial statements included herein
have been prepared by the Company, without audit, pursuant to the rules
and regulations of the Securities and Exchange Commission. Certain
information and disclosures normally included in annual financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations, although the Company believes that the disclosures
contained herein are adequate to make the information presented not
misleading. These condensed consolidated financial statements should
be read in conjunction with the financial statements and the notes
thereto included in the Company's latest annual report on Form 10-K.
(2)
<PAGE>
OAKWOOD HOMES CORPORATION
AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF INCOME (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
DECEMBER 31,
(in thousands except per share data) 1992
1993
<S> <C> <C>
REVENUES
Net Sales...................................................... $71,030 $42,857
Financial Services Income...................................... 14,241 11,524
Other Income................................................... 2,403 2,047
Total Revenues............................................ 87,674 56,428
COSTS AND EXPENSES
Cost of Sales.................................................. 49,156 29,785
Selling, General and Administrative Expenses
Non-financial Services...................................... 18,897 11,492
Financial Services.......................................... 1,851 1,616
Provision for Losses on Credit Sales........................... 1,931 1,267
Interest Expense
Non-financial Services...................................... 118 580
Financial Services.......................................... 6,038 5,995
Total Costs and Expenses............................... 77,991 50,735
INCOME BEFORE INCOME TAXES....................................... 9,683 5,693
PROVISION FOR INCOME TAXES....................................... 3,369 2,000
NET INCOME....................................................... $ 6,314 $ 3,693
Earnings Per Share
Primary........................................................ $ .30 $ .25
Fully Diluted.................................................. $ .30 $ .21
Dividends Paid Per Share......................................... $ .02 $ .02
Average Shares Outstanding
Primary........................................................ 21,384 15,006
Fully Diluted.................................................. 21,403 18,311
</TABLE>
(3)
<PAGE>
OAKWOOD HOMES CORPORATION
AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET (UNAUDITED)
<TABLE>
<CAPTION>
(in thousands except per share data)
<S> <C> <C>
DECEMBER 31, SEPTEMBER 30,
ASSETS 1993 1993
Cash and Cash Equivalents....................... $ 6,835 $ 23,904
Receivables, principally installment
contracts.................................... 392,226 424,710
Inventories
Manufactured homes........................... 64,003 52,105
Work-in-process, materials and supplies...... 5,193 4,288
Land/homes under development................. 1,135 697
70,331 57,090
Manufactured housing communities.................. 4,122 4,088
Property, plant and equipment..................... 29,637 27,702
Deferred income taxes............................. 2,420 1,564
Other assets...................................... 17,343 17,970
$522,914 $ 557,028
LIABILITIES AND STOCKHOLDERS' INVESTMENT
Short-term borrowings........................... $ 8,000 $ 26,800
Notes and bonds payable......................... 242,075 255,765
Accounts payable and accrued liabilities........ 29,595 39,079
Reserve for contingent liabilities.............. 3,186 3,009
Other long-term obligations..................... 4,172 3,499
Stockholders' investment:
Common stock, $.50 par value................. 10,206 10,172
Additional paid in capital................... 143,868 143,578
Retained earnings............................ 81,812 75,905
$235,886 229,655
Less: Loan to ESOP................................ 0 (779)
Total stockholders' investment.................... 235,886 228,876
$522,914 $ 557,028
</TABLE>
(4)
<PAGE>
OAKWOOD HOMES CORPORATION
AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS
ENDED
DECEMBER 31,
(000's omitted) 1993 1992
<S> <C> <C>
OPERATING ACTIVITIES:
Net income................................................... $ 6,314 $ 3,693
Items not requiring (providing) cash:
Depreciation and amortization............................. 1,181 882
Deferred income taxes..................................... (856) (205)
Provision for losses on credit sales, net of actual
losses.................................................. 951 548
(Increase) in other receivables........................... (3,285) (2,293)
(Increase) in inventories................................. (13,241) (5,417)
(Decrease) in accounts payable and accrued liabilities.... (9,484) (5,948)
Increase (decrease) in other long-term obligations........ 673 (48)
Cash used by operations................................. (17,747) (8,788)
Installment receivables issued............................ (58,932) (31,435)
Purchase of installment loan portfolio.................... (604) 0
Sale of installment loans................................. 80,765 13,893
Receipts on installment receivables....................... 13,744 11,745
CASH PROVIDED (USED) BY OPERATING ACTIVITIES............ 17,226 (14,585)
INVESTING ACTIVITIES:
Additions to property, plant and equipment................... (2,708) (611)
Additions to manufactured housing communities................ (37) (6)
Other........................................................ 244 (1,341)
CASH USED BY INVESTING ACTIVITIES......................... (2,501) (1,958)
FINANCING ACTIVITIES:
Net repayments on short-term credit facilities............... (18,800) (3,000)
Issuance of notes and bonds payable.......................... 0 42,335
Payments on notes and bonds.................................. (12,911) (13,388)
Cash dividends............................................... (407) (265)
Proceeds from exercise of stock options...................... 324 1,762
Other........................................................ 0 15
CASH PROVIDED (USED) BY FINANCING ACTIVITIES.............. (31,794) 27,459
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS........... (17,069) 10,916
CASH AND CASH EQUIVALENTS:
BEGINNING OF PERIOD.......................................... 23,904 17,200
END OF PERIOD................................................ $ 6,835 $ 28,116
</TABLE>
(5)
OAKWOOD HOMES CORPORATION AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. The condensed consolidated financial statements reflect all
adjustments, which included only normal recurring adjustments, which are,
in the opinion of management, necessary to present fairly the results of
operations for the periods presented. Results of operations for any interim
period are not necessarily indicative of results to be expected for a full
year.
2. Effective October 1, 1993, the Company adopted prospectively Statement
of Financial Accounting Standards No. 109, "Accounting for Income Taxes,"
which requires use of an asset and liability method to account for deferred
income taxes. Prior to fiscal 1994, the Company accounted for income
taxes using the deferred method. Under the asset and liability method
prescribed by FAS 109, deferred income taxes are provided on the
temporary differences between the financial reporting and income tax
bases of the Company's assets and liabilities using enacted income tax
rates expected to be in effect when the temporary differences reverse. One
of the differences between the FAS 109 asset and liability method and the
deferred method is that changes in deferred income tax assets and
liabilities arising from changes in income tax rates are reflected in income
when the change in income tax rates is enacted, rather than over time, if at
all.
The excess of the aggregate net deferred income tax asset as of October 1,
1993, computed using the asset and liability method, over the aggregate
net deferred income tax asset as of September 30, 1993, computed using
the deferred method, was approximately $214,000 ($.01 per share) and has
been reflected as a reduction in the provision for income taxes for the
quarter ended December 31, 1993.
The temporary differences giving rise to deferred income taxes at October
1, 1993 are as follows :
Deferred income tax liabilities :
Depreciation $1,020
Financing costs 831
Discounts on acquired portfolios 600
Installment sales 627
Endorsement fee income 337
Other 1,080
Total deferred income tax liabilites 4,495
Deferred income tax assets :
Reserve for losses on credit sales (4,896)
Accrued liabilities (1,262)
Other (115)
Total deferred income tax assets (6,273)
Net deferred income tax asset ($1,778)
3. The Company is contingently liable as guarantor on installment sale
contracts sold to unrelated financial institutions on a full or limited
recourse basis. The amount of this contingent liability was approximately
$128 million at December 31, 1993.
(6)
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
Total sales dollar volume increased 66%, reflecting a 45%
increase in new unit volume and increases of 5% and 12% in the
average new unit sales prices of single-section and multi-section
homes, respectively. New unit volume increased due to a 15%
increase in the weighted average number of sales centers open
during the period and a 26% increase in average new unit sales per
sales center. Total sales for sales centers open at least one year
rose 36%. The increase in the average new unit sales price reflects
price increases required to offset rising lumber prices, the effect of
the Company's entry into the Texas market where the average size
home sold is larger than in the Southeast market, and higher selling
prices in the Southeast due to a change in product mix toward
higher-end homes. The Company has been successful in recovering
increased lumber costs from its customers through higher selling
prices and does not expect fluctuating lumber prices to have a
material adverse effect on its results of operations.
Gross profit as a percentage of sales was 30.8% in the current
period compared to 30.5% in the prior year. Margins rose in the
Southeast, principally due to manufacturing efficiencies resulting
from higher production levels, partially offset by the effects of the
Company's expansion into the Southwest, where substantially all
product was sourced from third party manufacturers. During the
current period the Company operated at or near its production
capacity on a single shift basis at three of its operating plants. At
December 31, 1993, a fourth plant was operating at approximately
90% of its capacity (compared to approximately 75% at December
31, 1992) and a fifth plant acquired in January 1993 was operating
at approximately 70% of capacity. Production at the Company's new
Texas facility commenced in October, and at December 31, 1993 this
plant was operating at approximately 40% capacity. During the
quarter the Company began construction of an additional plant in
Texas and plans to begin construction of a plant in Tennessee to
further support the Company's expansion into the Southwest and
Midwest markets. Production at these facilities is expected to
commence during the third quarter of fiscal 1994. Management does
not expect a significant improvement in gross margins to be realized
from the additional manufacturing plants until fiscal 1995 because
of the start-up costs associated with bringing new production
capacity on line.
Financial services income increased 24% as a result of the
increase in the outstanding balance of installment sale contracts
from $323 million at December 31, 1992 to $377 million at
December 31, 1993, offset slightly by a decrease in the weighted
average interest rate. Credit sales represented approximately 84%
and 81% of the Company's sales dollar volume in fiscal
(7)
1994 and 1993, respectively, of which approximately 93% and 81%,
respectively, was originated by the Company's credit subsidiary.
Financial services income for the fiscal 1994 quarter also reflects
approximately $.9 million of earnings on the Company's retained interests
in REMIC securitizations consummated in July and October 1993 which were
structured as sales of receivables. The Company's earnings on its
retained interests in these REMICs are reflected as a single amount
within financial services income, as compared to presenting
interest income on the installment sale contracts conveyed to the
REMICs as interest income, and interest expense on REMIC interests
purchased by investors as interest expense, for REMIC
securitizations structured as collateralized borrowings.
Structuring REMIC securitizations as sales of receivables will cause
slower rates of growth in interest income and interest expense
compared to that which would occur if such securitizations were
structured as collateralized borrowings.
Other income increased 17%, principally due to increased
insurance commissions resulting from an improvement in the
percentage of total sales for which physical damage coverage was
written by the Company's agency and the overall increase in sales,
offset by decreases in insurance commissions from favorable loss
experience and the continuing decline in endorsement fee income
resulting from the Company's emphasis on internal financing of
credit sales.
Total selling, general and administrative expenses increased
57%, primarily as a result of higher sales volumes and increased
servicing costs associated with the increased size of the Company's
servicing portfolio.
The provision for losses on credit sales rose 52% over the
prior period. The Company provides for estimated future losses on
current period retail credit sales financed by the Company or sold to
financial institutions on a recourse basis. The amounts provided are
based on the Company's historical loss experience, current
repossession trends and costs, and management's assessment of the
current credit quality of the installment sale contract portfolio.
Accordingly, the provision for losses on credit sales is not
necessarily directly related to current period sales.
Non-financial services interest expense decreased primarily
due to the redemption or conversion of the Company's 6-1/2% and
7-1/2% convertible subordinated debentures in November and December
1992. Financial services interest expense was essentially flat
because the Company has begun structuring its REMIC
securitizations as sales of receivables instead of as collateralized
borrowings as more fully described above.
As more fully described in Note 3 to the condensed
consolidated financial statements included herein, effective October
1, 1993 the Company adopted prospectively Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes" ("FAS
109"), which requires use of an asset and
(8)
liability method to account for deferred income taxes. Adoption of
FAS 109 had the effect of reducing the provision for income taxes and
increasing net income by $214,000 ($.01 per share) for the quarter ended
December 31, 1993. Excluding the effect of adoption of FAS 109, the
Company's effective income tax rate was 37% in fiscal 1994. The
two percentage point increase over fiscal 1993 was the result of
higher state income taxes and an increase in the federal income tax
rate.
Liquidity and Capital Resources
The Company's financial position at December 31, 1993
reflects the normal seasonal increase in inventories in preparation
for the typically strong spring and summer selling season.
Receivables, which consist principally of installment sale
contracts, decreased principally as a result of the Company's
structuring of installment sale contract securitizations as sales of
receivables rather than as collateralized borrowings. During the
quarter ended December 31, 1993 the Company originated
approximately $59 million of installment sale contracts and sold
approximately $90 million of installment sale contracts, including
approximately $88.5 million of contracts via a REMIC securitization.
Investors purchased 90% of the interests in the REMIC trust for
approximately $79.6 million cash; the Company retained a 10%
interest in the trust. No gain or loss resulted from the sale of REMIC
certificates to investors. Management believes that financing for
installment sale contracts remains readily available and anticipates
completing another securitization in the third quarter of fiscal
1994. Management believes that the availability of permanent
financing for installment sale contracts, the Company's short-term
credit facilities and cash generated by operations are sufficient to
provide for the Company's short-term liquidity needs.
The Company continues to monitor the credit and equity
markets and evaluate the sources and cost of the long-term capital
required to finance the demands of both planned expansion and higher
operating levels within existing operations. The Company will seek
to raise additional equity or long-term debt based upon anticipated
business demands, management's assessment of existing and future
conditions in the capital markets, and management's assessment of
the appropriate components of the Company's capital structure.
(9)
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
At the Annual Meeting of Shareholders of the
Registrant held February 2, 1994, the following
matters were submitted to a vote of the
shareholders of the Registrant:
1) Ratification of the selection of Price
Waterhouse as independent public accountants
for the fiscal year ending September 30, 1994,
which was approved by a vote of 16,236,769
shares in favor and 52,533 shares voted
against. On such matter, there were
abstentions of 37,325 shares and broker
nonvotes of 4,024,959 shares.
2) Election of four members to the Board of
Directors of the Registrant for terms of three
years and one member to the Board of
Directors of the Registrant for a term of two
years. Mr. Ralph L. Darling was elected to the
Board by a vote of 15,933,321 shares in favor
of his election; 393,306 shares were withheld
from voting in favor of Mr. Darling's election;
and there were broker nonvotes of 4,024,959.
Mr. Kermit G. Phillips, II was elected to the
Board by a vote of 15,979,008 shares in favor
of his election; 347,619 shares were withheld
from voting in favor of Mr. Phillips' election;
and there were broker nonvotes of 4,024,959.
Mr. H. Michael Weaver was elected to the
Board by a vote of 15,978,948 shares in favor
of his election; 347,679 shares were withheld
from voting in favor of Mr. Weaver's election;
and there were broker nonvotes of 4,024,959.
Mr. Francis T. Vincent, Jr. was elected to the
Board by a vote of 15,976,747 shares in favor
of his election; 349,880 shares were withheld
from voting in favor of Mr. Vincent's election;
and there were broker nonvotes of 4,024,959.
Mr. Sabin C. Streeter was elected to the
Board by a vote of 15,930,860 shares in favor
of his election; 395,767 shares were withheld
from voting in favor of Mr. Streeter's election;
and there were broker nonvotes of 4,024,959.
(10)
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
(4) Agreement to Furnish Copies of Instruments With Respect to
Long-Term Debt
(10.1) Form of First Amendment to Employment Agreement between the
Corporation and each of Nicholas J. St. George, Robert D. Harvey,
Sr. and A. Steven Michael.
(10.2) First Amendment to Amended and Restated Executive Retirement
Benefit Employment Agreement between the Corporation and
Nicholas J. St. George.
(10.3) First Amendment to Executive Retirement Benefit Employment
Agreement between the Corporation and Robert D. Harvey, Sr.
(10.4) First Amendment to Executive Retirement Benefit Employment
Agreement between the Corporation and A. Steven Michael.
(10.5) First Amendment to Amended and Restated Executive Disability
Benefit Agreement between the Corporation and Nicholas J. St.
George.
(10.6) First Amendment to Executive Disability Benefit Agreement
between the Corporation and Robert D. Harvey, Sr.
(10.7) Form of Executive Retirement Benefit Agreement between the
Corporation and each of James D. Casterline, Larry T. Gilmore, C.
Michael Kilbourne, J. Michael Stidham and Larry M. Walker.
(10.8) Schedule identifying omitted Executive Retirement Benefit
Employment Agreements which are substantially identical to the
Form of Executive Retirement Benefit Agreement in Exhibit 10.7
and payment schedules under Executive Retirement Benefit
Employment Agreements.
(11) Calculation of Fully Diluted Earnings Per Share.
b) Reports on Form 8-K
No reports on Form 8-K were filed for the quarter ended December 31,
1993.
Items 1, 2, 3 and 5 are inapplicable and are omitted.
(11)
OAKWOOD HOMES CORPORATION AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
Date: February 11, 1994
OAKWOOD HOMES CORPORATION
BY: s/Nicholas J. St. George
________________________
Nicholas J. St. George
President and
Chief Executive Officer
BY: s/C. Michael Kilbourne
_______________________
C. Michael Kilbourne
Vice President
(Principal Financial Officer)
(12)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
ITEM 6(a)
FORM 10-Q
QUARTERLY REPORT
For the quarter ended Commission File Number
December 31, 1993 1-7444
OAKWOOD HOMES CORPORATION
EXHIBIT INDEX
Exhibit No. Exhibit Description
4 Agreement to Furnish Copies of Instruments with respect to Long-
Term Debt (page 14 of the sequentially numbered pages)
10.1 Form of First Amendment to Employment Agreement between the
Corporation and each of Nicholas J. St. George, Robert D. Harvey,
Sr. and A. Steven Michael (page __ of the sequentially numbered
pages)
10.2 First Amendment to Amended and Restated Executive Retirement
Benefit Employment Agreement between the Corporation and
Nicholas J. St. George (page __ of the sequentially numbered
pages)
10.3 First Amendment to Executive Retirement Benefit Employment
Agreement between the Corporation and Robert D. Harvey, Sr.
(page __ of the sequentially numbered pages)
10.4 First Amendment to Executive Retirement Benefit Employment
Agreement between the Corporation and A. Steven Michael (page
__ of the sequentially numbered pages)
10.5 First Amendment to Amended and Restated Executive Disability
Benefit Agreement between the Corporation and Nicholas J. St.
George (page __ of the sequentially numbered pages)
10.6 First Amendment to Executive Disability Benefit Agreement
between the Corporation and Robert D. Harvey, Sr. (page __ of the
sequentially numbered pages)
10.7 Form of Executive Retirement Benefit Agreement between the
Corporation and each of James D. Casterline, Larry T. Gilmore, C.
Michael Kilbourne, J. Michael Stidham and Larry M. Walker (page
__ of the sequentially numbered pages)
10.8 Schedule identifying omitted Executive Retirement Benefit
Employment Agreements which are substantially identical to the
Form of Executive Retirement Benefit Agreement in Exhibit 10.7
and payment schedules under Executive Retirement Benefit
Employment Agreements (page __ of the sequentially numbered
pages)
11 Calculation of Fully Diluted Earnings Per Share (page __ of the
sequentially numbered pages)
EXHIBIT 4
AGREEMENT TO FURNISH COPIES OF INSTRUMENTS
WITH RESPECT TO LONG-TERM DEBT
The Registrant has entered into certain agreements with
respect to long-term indebtedness which do not exceed ten percent
of the total assets of the Registrant and its subsidiaries on a
consolidated basis. The Registrant hereby agrees to furnish a copy
of such agreements to the Commission upon request of the
Commission.
OAKWOOD HOMES CORPORATION
By: s/C. Michael Kilbourne
______________________
C. Michael Kilbourne
Vice President
( )
FIRST AMENDMENT
to
EMPLOYMENT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the EMPLOY-
MENT AGREEMENT dated as of November 16, 1990 (the "Employment
Agreement") by and between OAKWOOD HOMES CORPORATION, a North
Carolina corporation with its principal executive offices at
Greensboro, North Carolina (the "Company"), and _________________,
an individual residing at Greensboro, North Carolina (the "Execu-
tive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Employment
Agreement to provide that in the event the Executive receives an
arbitration award as a result of a dispute arising under the
Employment Agreement, the Corporation shall reimburse the Executive
the reasonable fees and disbursements of his counsel.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Arbitration; Fees. The Company and the Executive hereby
acknowledge and agree that Section 15 of the Employment Agreement
is hereby amended by deleting such Section in its entirety and
substituting in its place and stead a new Section 15 to read in its
entirety as follows:
"15. Arbitration; Fees. (a)Any dis-
putes between the Company and the Executive
concerning this Agreement will be settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association, by a panel of three arbitrators,
one selected by the Executive, one selected by
the Company and the other selected by the two
so chosen. Judgment upon the arbitration
award rendered by the arbitrators shall be
binding and conclusive and may be entered in
any court having jurisdiction thereof. The
costs of the arbitration shall be borne by the
Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the presentation
of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees
and disbursements of counsel incurred in
connection with such arbitration or the col-
lection of any amounts awarded the Executive
pursuant thereto."
2. References. Each reference in the Employment Agreement
to the terms "this Agreement", "herein", "hereof", "hereunder" and
other similar terms referring to the Employment Agreement are
hereby deemed to be a reference to the Employment Agreement as
amended hereby.
3. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Employment Agreement shall
remain in full force and effect, and are hereby ratified and
confirmed in all respects.
4. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year first
above set forth.
OAKWOOD HOMES CORPORATION
[CORPORATE SEAL]
ATTEST: By:_______________________
Name:
Title:
_________________________
______________________
_______________________
2
FIRST AMENDMENT
to
AMENDED AND RESTATED EXECUTIVE
RETIREMENT BENEFIT EMPLOYMENT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the AMENDED
AND RESTATED EXECUTIVE RETIREMENT BENEFIT EMPLOYMENT AGREEMENT
dated as of December 31, 1991 (the "Retirement Benefit Employment
Agreement") by and between OAKWOOD HOMES CORPORATION, a North
Carolina corporation with its principal executive offices at
Greensboro, North Carolina (the "Company"), and NICHOLAS J. ST.
GEORGE, an individual residing at Greensboro, North Carolina (the
"Executive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Retirement
Benefit Employment Agreement to provide that in the event the
Executive receives an arbitration award as a result of a dispute
arising under the Retirement Benefit Employment Agreement, the
Corporation shall reimburse the Executive the reasonable fees and
disbursements of his counsel.
NOW, THEREFORE, the Company and the Executive hereby agree
as follows:
1. Arbitration; Fees. The Company and the Executive
hereby acknowledge and agree that Section 15 of the Retirement
Benefit Employment Agreement is hereby amended by deleting such
Section in its entirety and substituting in its place and stead a
new Section 15 to read in its entirety as follows:
"15. Arbitration; Fees. (a)Any
disputes between the Company and the
Executive concerning this Agreement will be
settled by arbitration in accordance with the
Commercial Arbitration Rules of the American
Arbitration Association, by a panel of three
arbitrators, one selected by the Executive,
one selected by the Company and the other
selected by the two so chosen. Judgment upon
the arbitration award rendered by the
arbitrators shall be binding and conclusive
and may be entered in any court having
jurisdiction thereof. The costs of the
arbitration shall be borne by the Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the
presentation of proper receipts or invoices
therefor, reimburse the Executive the
reasonable fees and disbursements of counsel
incurred in connection with such arbitration
or the collection of any amounts awarded the
Executive pursuant thereto."
2. References. Each reference in the Retirement Benefit
Employment Agreement to the terms "this Agreement", "herein",
"hereof", "hereunder" and other similar terms referring to the
Retirement Benefit Employment Agreement are hereby deemed to be a
reference to the Retirement Benefit Employment Agreement as
amended hereby.
3. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Retirement Benefit Employment
Agreement shall remain in full force and effect, and are hereby
ratified and confirmed in all respects.
4. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year
first above set forth.
ATTEST: OAKWOOD HOMES CORPORATION
_____________________ By:_______________________
Name:
Title:
___________________________
Nicholas J. St. George
2
FIRST AMENDMENT
to
EXECUTIVE RETIREMENT BENEFIT
EMPLOYMENT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the EXECUTIVE
RETIREMENT BENEFIT EMPLOYMENT AGREEMENT dated as of August 15, 1984
(the "Retirement Benefit Employment Agreement") by and between
OAKWOOD HOMES CORPORATION, a North Carolina corporation with its
principal executive offices at Greensboro, North Carolina (the
"Company"), and ROBERT D. HARVEY, SR., an individual residing at
Greensboro, North Carolina (the "Executive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Retirement
Benefit Employment Agreement (i) to provide that in the event the
Executive receives an arbitration award as a result of a dispute
arising under the Retirement Benefit Employment Agreement, the
Corporation shall reimburse the Executive the reasonable fees and
disbursements of his counsel and (ii) to clarify and update certain
other provisions thereof.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Definitions. The Company and the Executive hereby
acknowledge and agree that Section 1(a) of the Retirement Benefit
Employment Agreement is hereby amended by deleting such subsection
in its entirety and substituting in its place and stead a new
Section 1(a) to read in its entirety as follows:
"(a) Retirement means the termination of
Executive's employment with the Company, its
subsidiaries and any parent (1) at any time
during or after the calendar month in which
Executive attains the age of 65 years, or (2)
at Executive's option, the last day of the
calendar month in which Executive elects to
make such termination effective, provided that
Executive has attained the age of 60 years (or
such earlier age as is approved by the Board
of Directors) at the effective date of termi-
nation and has given the Company 180 days
written notice of such election."
2. Benefit Payments. The Company and the Executive hereby
acknowledge and agree that Section 3 of the Retirement Benefit
Employment Agreement is hereby amended as follows:
(a) The first sentence of Section 3(b) is hereby amended
by deleting such sentence in its entirety and substituting in
its place and stead a new first sentence to read as follows:
"Subject to the provisions of Section 4
hereof, and in addition to any benefits pay-
able under Section 4(c) of this Agreement, in
the event that Executive's employment is
terminated without his consent and without
Cause after a Change of Control in the Company
and prior to Executive reaching 55 years of
age, the Company agrees to pay Executive
Change of Control Benefits in the amount and
in accordance with the payment schedule set
out in Schedule B attached hereto."
(b) The first sentence of Section 3(c) is hereby amended
by deleting such sentence in its entirety and substituting in
its place and stead a new first sentence to read as follows:
"Subject to the provisions of Section 4
hereof, in the event of Executive's death
prior to Retirement or prior to the commence-
ment of the Payment Period set forth in Sec-
tions 3(a), 3(b), 4(c) or 4(d) hereof, the
Company agrees to pay beneficiaries designated
by Executive pursuant to Section 3(d) hereof
Death Benefits in the amount and in accordance
with the payment schedule set out in Schedule
C attached hereto."
3. Restrictions, Termination and Forfeiture. The Company
and the Executive hereby acknowledge and agree that Section 4(c) of
the Retirement Benefit Employment Agreement is hereby amended by
deleting the first sentence in its entirety and substituting in its
place and stead a new first sentence to read as follows:
"In addition to any payments under Sec-
tion 3(b) hereof, if applicable, in the event
Executive's employment with the Company is
terminated without his consent and without
Cause (other than by death) after Executive
has reached 50 years of age and prior to his
Retirement, Executive shall receive payments
in the amount and in accordance with the
payment schedule set out in Schedule D at-
tached hereto."
4. Participation and Other Employee Benefits. The Company
and the Executive hereby acknowledge and agree that Section 5(b) of
the Retirement Benefit Employment Agreement is hereby amended by
2
deleting such section in its entirety and substituting in its place
and stead a new Section 5(b) to read in its entirety as follows:
"(b) Nothing contained in this Agreement
shall affect the rights of Executive under the
Employment Agreement dated November 16, 1990."
5. Arbitration; Fees. The Company and the Executive hereby
acknowledge and agree that Section 15 of the Retirement Benefit
Employment Agreement is hereby amended by deleting such Section in
its entirety and substituting in its place and stead a new Section
15 to read in its entirety as follows:
"15. Arbitration; Fees. (a)Any dis-
putes between the Company and the Executive
concerning this Agreement will be settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association, by a panel of three arbitrators,
one selected by the Executive, one selected by
the Company and the other selected by the two
so chosen. Judgment upon the arbitration
award rendered by the arbitrators shall be
binding and conclusive and may be entered in
any court having jurisdiction thereof. The
costs of the arbitration shall be borne by the
Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the presentation
of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees
and disbursements of counsel incurred in
connection with such arbitration or the col-
lection of any amounts awarded the Executive
pursuant thereto."
6. References. Each reference in the Retirement Benefit
Employment Agreement to the terms "this Agreement", "herein",
"hereof", "hereunder" and other similar terms referring to the
Retirement Benefit Employment Agreement are hereby deemed to be a
reference to the Retirement Benefit Employment Agreement as amended
hereby.
7. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Retirement Benefit Employment
Agreement shall remain in full force and effect, and are hereby
ratified and confirmed in all respects.
3
8. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year first
above set forth.
OAKWOOD HOMES CORPORATION
[CORPORATE SEAL]
ATTEST: By:____________________________
Name:
Title:
________________________
______________________
Robert D. Harvey, Sr.
4
FIRST AMENDMENT
to
EXECUTIVE RETIREMENT BENEFIT
EMPLOYMENT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the EXECUTIVE
RETIREMENT BENEFIT EMPLOYMENT AGREEMENT dated as of June 3, 1993
(the "Retirement Benefit Employment Agreement") by and between
OAKWOOD HOMES CORPORATION, a North Carolina corporation with its
principal executive offices at Greensboro, North Carolina (the
"Company"), and A. STEVEN MICHAEL, an individual residing at
Greensboro, North Carolina (the "Executive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Retirement
Benefit Employment Agreement to provide that in the event the
Executive receives an arbitration award as a result of a dispute
arising under the Retirement Benefit Employment Agreement, the
Corporation shall reimburse the Executive the reasonable fees and
disbursements of his counsel.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Arbitration; Fees. The Company and the Executive hereby
acknowledge and agree that Section 15 of the Retirement Benefit
Employment Agreement is hereby amended by deleting such Section in
its entirety and substituting in its place and stead a new Section
15 to read in its entirety as follows:
"15. Arbitration; Fees. (a)Any dis-
putes between the Company and the Executive
concerning this Agreement will be settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association, by a panel of three arbitrators,
one selected by the Executive, one selected by
the Company and the other selected by the two
so chosen. Judgment upon the arbitration
award rendered by the arbitrators shall be
binding and conclusive and may be entered in
any court having jurisdiction thereof. The
costs of the arbitration shall be borne by the
Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the presentation
of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees
and disbursements of counsel incurred in
connection with such arbitration or the col-
lection of any amounts awarded the Executive
pursuant thereto."
2. References. Each reference in the Retirement Benefit
Employment Agreement to the terms "this Agreement", "herein",
"hereof", "hereunder" and other similar terms referring to the
Retirement Benefit Employment Agreement are hereby deemed to be a
reference to the Retirement Benefit Employment Agreement as amended
hereby.
3. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Retirement Benefit Employment
Agreement shall remain in full force and effect, and are hereby
ratified and confirmed in all respects.
4. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year first
above set forth.
ATTEST: OAKWOOD HOMES CORPORATION
_____________________ By:__________________________
Name:
Title:
______________________________
A. Steven Michael
2
FIRST AMENDMENT
to
AMENDED AND RESTATED
EXECUTIVE DISABILITY BENEFIT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the AMENDED
AND RESTATED EXECUTIVE DISABILITY BENEFIT AGREEMENT dated as of
December 31, 1991 (the "Disability Benefit Agreement") by and
between OAKWOOD HOMES CORPORATION, a North Carolina corporation
with its principal executive offices at Greensboro, North Carolina
(the "Company"), and NICHOLAS J. ST. GEORGE, an individual residing
at Greensboro, North Carolina (the "Executive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Disability
Benefit Agreement to provide that in the event the Executive
receives an arbitration award as a result of a dispute arising
under the Disability Benefit Agreement, the Corporation shall
reimburse the Executive the reasonable fees and disbursements of
his counsel.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Arbitration; Fees. The Company and the Executive hereby
acknowledge and agree that Section 16 of the Disability Benefit
Agreement is hereby amended by deleting such Section in its
entirety and substituting in its place and stead a new Section 16
to read in its entirety as follows:
"16. Arbitration; Fees. (a)Any dis-
putes between the Company and the Executive
concerning this Agreement will be settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association, by a panel of three arbitrators,
one selected by the Executive, one selected by
the Company and the other selected by the two
so chosen. Judgment upon the arbitration
award rendered by the arbitrators shall be
binding and conclusive and may be entered in
any court having jurisdiction thereof. The
costs of the arbitration shall be borne by the
Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the presentation
of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees
and disbursements of counsel incurred in
connection with such arbitration or the col-
lection of any amounts awarded the Executive
pursuant thereto."
2. References. Each reference in the Disability Benefit
Agreement to the terms "this Agreement", "herein", "hereof",
"hereunder" and other similar terms referring to the Disability
Benefit Agreement are hereby deemed to be a reference to the
Disability Benefit Agreement as amended hereby.
3. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Disability Benefit Agreement
shall remain in full force and effect, and are hereby ratified and
confirmed in all respects.
4. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year first
above set forth.
ATTEST: OAKWOOD HOMES CORPORATION
_____________________ By:_______________________
Name:
Title:
___________________________
Nicholas J. St. George
2
FIRST AMENDMENT
to
EXECUTIVE DISABILITY BENEFIT AGREEMENT
FIRST AMENDMENT dated as of November 16, 1993 to the EXECUTIVE
DISABILITY BENEFIT AGREEMENT dated as of August 15, 1984 (the
"Disability Benefit Agreement") by and between OAKWOOD HOMES
CORPORATION, a North Carolina corporation with its principal
executive offices at Greensboro, North Carolina (the "Company"),
and ROBERT D. HARVEY, SR., an individual residing at Greensboro,
North Carolina (the "Executive").
STATEMENT OF PURPOSE
The Executive is a valued key employee of the Company whose
present and future contributions to the success and growth of the
Company are significant. The Company believes that it is in the
best interest of it and its shareholders to amend the Disability
Benefit Agreement to provide that in the event the Executive
receives an arbitration award as a result of a dispute arising
under the Disability Benefit Agreement, the Corporation shall
reimburse the Executive the reasonable fees and disbursements of
his counsel.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Arbitration; Fees. The Company and the Executive hereby
acknowledge and agree that Section 16 of the Disability Benefit
Agreement is hereby amended by deleting such Section in its
entirety and substituting in its place and stead a new Section 16
to read in its entirety as follows:
"16. Arbitration; Fees. (a)Any dis-
putes between the Company and the Executive
concerning this Agreement will be settled by
arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association, by a panel of three arbitrators,
one selected by the Executive, one selected by
the Company and the other selected by the two
so chosen. Judgment upon the arbitration
award rendered by the arbitrators shall be
binding and conclusive and may be entered in
any court having jurisdiction thereof. The
costs of the arbitration shall be borne by the
Company.
(b)In the event that the Executive
receives an arbitration award pursuant to
subsection (a) above, the Company shall,
within thirty (30) days after the presentation
of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees
and disbursements of counsel incurred in
connection with such arbitration or the col-
lection of any amounts awarded the Executive
pursuant thereto."
2. References. Each reference in the Disability Benefit
Agreement to the terms "this Agreement", "herein", "hereof",
"hereunder" and other similar terms referring to the Disability
Benefit Agreement are hereby deemed to be a reference to the
Disability Benefit Agreement as amended hereby.
3. Ratification; Confirmation. Except as amended hereby,
all the terms and conditions of the Disability Benefit Agreement
shall remain in full force and effect, and are hereby ratified and
confirmed in all respects.
4. Counterparts. This First Amendment may be executed in
any one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Amendment to be executed and delivered as of the day and year first
above set forth.
ATTEST: OAKWOOD HOMES CORPORATION
_____________________ By:__________________________
Name:
Title:
______________________________
Robert D. Harvey, Sr.
2
STATE OF NORTH CAROLINA
COUNTY OF GUILFORD EXECUTIVE RETIREMENT BENEFIT
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of this day of December,
1993, by and between OAKWOOD HOMES CORPORATION, a North Carolina
corporation with its principal executive offices in Greensboro,
North Carolina (the "Company"), and ________________, residing at
______________________________________________________ ("Execu-
tive");
W I T N E S S E T H:
WHEREAS, Executive is an employee with the Company or a wholly
owned subsidiary thereof, currently serving as ____________________
of ________________________________ the __________________ of the
Company; and
WHEREAS, Executive has contributed materially to the success-
ful operation of the Company's business and has rendered valuable
services to the Company; and
WHEREAS, Executive possesses a thorough knowledge of the
business in which the Company is engaged and has extensive
knowledge of the Company, its operating methods, manufacturing and
sales processes, personnel and products; and
WHEREAS, it is important to the continued success of the
Company that the Company continue to have the benefit of
Executive's advice, counsel and services; and
WHEREAS, the Company and Executive mutually desire to enter
into this Agreement;
NOW THEREFORE, the Company and Executive, in consideration of
the mutual covenants and agreements hereinafter set forth and other
valuable considerations, do hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms have the
following meanings:
(a) Retirement means the termination of Executive's employ-
ment with the Company, its subsidiaries and any parent (1) at any
time after the last day of the calendar month immediately preceding
the calendar month in which Executive attains the age of 65 years,
or (2) at Executive's option, the last day of the calendar month
immediately preceding the calendar month in which Executive elects
to make such termination effective, provided that Executive has
attained the age of 60 years (or such earlier age, beginning at age
50, as is expressly approved by the Board of Directors) at the
effective date of termination and has given the Company 180 days
written notice of such election.
(b) Change of Control shall be deemed to have occurred in the
event that any person, corporation or other entity and its
affiliates acquires or contracts to acquire or otherwise controls
in excess of 50% of the then outstanding equity securities of the
Company without the express approval of the Board of Directors in
office prior to such action.
(c) Payment Period means the time beginning on the first day
of the calendar month in which Executive or his beneficiary(ies)
first receives, or should receive, a benefit payment under this
Agreement and ending on the last day of the calendar month
immediately preceding the fifteenth (15th) anniversary of the
receipt of said initial payment.
(d) Cause means:
(i) A material and willful breach of any of Executive's
obligations under this Agreement or of Executive's
fiduciary duties to the Company or its sharehold-
ers; or
(ii) In connection with the discharge of Executive's
duties with the Company, one or more material acts
of fraud or dishonesty or gross abuse of authority;
or
(iii) Executive's commission of any willful act involving
moral turpitude that materially and adversely
affects the name and good will of the Company or
the Company's relationship with its employees,
customers or suppliers; or
(iv) Executive's habitual and intemperate use of alcohol
or drugs to the extent that the same materially
interferes with Executive's ability to competently,
diligently and substantially perform the duties of
his employment.
(e) Board of Directors means the Board of Directors of the
Company.
2. Employment.
Until his Retirement or termination as described herein,
Executive will devote his best efforts and substantially all of his
time during customary business hours to the performance of his
current duties (or the duties of such other executive position to
which he shall be elected or appointed by the Board of Directors),
except reasonable vacation periods and periods of illness or other
2
incapacity, but nothing in this Agreement shall preclude Executive
from devoting reasonable time to serving as a director or member of
a committee of one or more organizations (business, charitable,
civic, religious or otherwise), involving no conflict with the
interest of the Company.
3. Benefit Payments.
(a) Retirement Benefit Payments. Subject to the provisions
of Section 4 hereof, following Executive's Retirement, the Company
agrees to pay Executive Retirement Benefits in the amount and in
accordance with the payment schedule set out in Schedule A attached
hereto, said payments to commence on the last day of the calendar
month following Executive's Retirement and to end with the
expiration of the Payment Period. Retirement Benefits shall be
paid at the end of each month. In the event that Executive dies
during the Payment Period, beneficiaries designated by Executive
pursuant to Section 3(d) hereof shall receive the amount due
hereunder.
(b) Change of Control Benefit Payments. Subject to the
provisions of Section 4 hereof, and in addition to any benefits
payable under Section 4(c) of this Agreement, in the event that
Executive's employment is terminated without Cause after a Change
of Control in the Company, the Company agrees to pay Executive
Change of Control Benefits in the amount and in accordance with the
payment schedule set out in Schedule B attached hereto. Said
payments shall commence on the later of the last day of the
calendar month immediately following the calendar month (i) in
which Executive attains the age of 60 years, or (ii) in which
termination under this Section 3(b) occurs. Change of Control
Benefits shall be paid at the end of each month thereafter and
shall end with the expiration of the Payment Period. In the event
that Executive dies during the Payment Period, beneficiaries
designated by Executive pursuant to Section 3(d) hereof shall
receive the amount due hereunder. In the event that Executive dies
after termination under this Section 3(b) and prior to the
commencement of the Payment Period, Executive's benefits shall be
limited to those Death Benefits specified in Section 3(c) hereof
and Schedule C attached hereto.
(c) Death Benefit Payments. Subject to the provisions of
Section 4 hereof, in the event of Executive's death prior to
Retirement or prior to the commencement of the Payment Period set
forth in Sections 3(a) or 4(c) hereof, the Company agrees to pay
beneficiaries designated by Executive pursuant to Section 3(c)
hereof Death Benefits in the amount and in accordance with the
payment schedule set out in Schedule C attached hereto, said
payments to commence on the last day of the calendar month
following Executive's death and end with the expiration of the
Payment Period. Death Benefits shall be paid at the end of each
month.
3
(d) Designation of Beneficiary. Executive may designate one
or more beneficiaries to receive payments payable hereunder after
his death by filing with the Company a beneficiary designation on
a form approved by the Company, bearing the name(s), address(es)
and relationship of the beneficiary(ies), which beneficiary
designation form shall be acknowledged by Executive before a Notary
Public or other officer authorized to administer oaths and shall be
in such other form and shall contain such other related information
as shall be satisfactory to the Company. The beneficiary(ies) may
be changed by Executive at any time by filing a new beneficiary
designation form with the Company, said new beneficiary designation
form to comply with the provisions of this Section 3(d). If
Executive shall not be survived by any one of the beneficiaries
designated in accordance with the provisions herein set forth, or
if Executive has not designated a beneficiary as provided in this
Section 3(d), then upon Executive's death, any and all amounts that
would have been payable to Executive's beneficiary(ies) shall be
paid to Executive's estate. If Executive shall be survived by any
one of the beneficiary(ies) designated as provided herein and such
beneficiary(ies) shall die prior to receiving all amounts payable
hereunder to such deceased beneficiary(ies) if such beneficia-
ry(ies) had lived, then all remaining amounts shall be paid to the
estate of such deceased beneficiary(ies). In any case where
payments hereunder are to be made to an estate (either the estate
of Executive or the estate of a deceased beneficiary), the Company
in its sole discretion may make all remaining payments due said
estate in one (1) lump sum payment without discount.
4. Restrictions, Termination and Forfeiture.
(a) Restrictions. Except in the event that Executive's
employment with the Company is involuntarily terminated without
Cause, Executive agrees that so long as he is entitled to receive
any payment pursuant to this Agreement, he will not:
(i) become an employee, officer, director, agent or
consultant of a corporation; or
(ii) become an employee, agent, consultant, or member of
a business, firm or partnership; or
(iii) own directly or indirectly, a proprietary interest
in a business, firm or partnership; or
(iv) own directly or indirectly any stock in a corporation,
that conducts a business competing with that of the Company or any
of its affiliates or subsidiaries, in any area in which the
Company, its affiliates or subsidiaries, does business; provided,
however, that Executive may own not in excess of five percent (5%)
of the total outstanding stock in any such competing corporation
4
that is actively traded in the over-the-counter market or is listed
and traded on a national securities exchange.
(b) Termination and Forfeiture of Payments. All payments
under this Agreement shall immediately and forever terminate and
the right to receive said payments shall be forever forfeited if:
(i) Executive voluntarily terminates his employment
with the Company before reaching sixty years of age
without the approval of the Board of Directors; or
(ii) Executive is involuntarily terminated by the Compa-
ny for Cause prior to Retirement: or
(iii) After Executive's Retirement or termination, this
Agreement is terminated by the Company as a result
of Executive's having committed an act of embezzle-
ment or larceny of money or other property from the
Company that would constitute a felony; or
(iv) Executive materially and willfully breaches any
provision of this Agreement.
(c) Termination Without Cause. Except for termination
pursuant to Section 3(b) hereof, in the event Executive's employ-
ment with the Company is involuntarily terminated by the Company
without Cause after Executive has reached fifty years of age and
prior to his Retirement, Executive shall receive payments in the
amount and in accordance with the payment schedule set out in
Schedule D attached hereto, said payments to commence on the later
of the last day of the calendar month immediately following the
calendar month (i) in which Executive attains 60 years of age, or
(ii) in which termination under this Section 4(c) occurs. For
purposes of this Section 4(c), termination due to disability shall
be deemed termination without Cause. Payments shall be made at the
end of each month thereafter and shall end with the expiration of
the Payment Period. In the event that Executive dies during the
Payment Period, beneficiaries designated by Executive pursuant to
Section 3(d) hereof shall receive the amount due hereunder. In the
event that Executive dies after termination under this Section 4(c)
and prior to the commencement of the Payment Period, Executive's
benefits shall be limited to those Death Benefits specified in
Section 3(b) hereof and Schedule B attached hereto.
(d) Approved Voluntary Termination. In the event Executive
voluntarily terminates his employment with the Company after
reaching 50 years of age but prior to reaching 60 years of age, and
said termination is expressly approved by the Board of Directors
("Approved Voluntary Termination"), Executive shall receive
payments in the amount and in accordance with the payment schedule
set out in Schedule E attached hereto; provided that Executive
shall give the Company 180 days written notice of said termination.
5
Payments shall commence on the last day of the calendar month in
which Executive attains 60 years of age, shall be made at the end
of each month thereafter and shall end with the expiration of the
Payment Period. In the event that Executive dies after his
Approved Voluntary Termination and prior to the expiration of the
Payment Period, beneficiaries designated by Executive pursuant to
Section 3(d) hereof shall receive the amount due under this Section
4(d). Payments under this Section 4(d) shall be in lieu of any and
all other payments to which Executive may otherwise have been
entitled under this Agreement.
(e) Determination of Forfeiture. Any determination that
Executive has breached this Agreement or otherwise forfeited the
right to further payments under this Agreement must be made by the
Board of Directors of the Company acting in good faith and must be
based on and supported by clear and convincing evidence.
5. Participation in Other Employee Benefits.
Nothing contained in this Agreement shall affect the right of
Executive to participate or continue to participate in the Oakwood
Employee Stock Ownership, Profit-Sharing and Savings Plan in
accordance with its terms, the Company's group life insurance plan
or any other employee or executive benefit plan or arrangement of
the Company; nor shall anything in this Agreement affect
Executive's eligibility to participate in any bonus, profit
sharing, pension, insurance, incentive or other supplemental or
special compensation plan or arrangement that may be adopted or
established by the Company after the execution of this Agreement.
Nothing in this Agreement shall affect the Company's right and
discretion to decide whether the Executive shall participate in any
such other plans or arrangements, whether now in effect or
hereafter adopted.
6. Funding.
(a) The Company's obligations under this Agreement shall be
an unfunded and unsecured promise to pay. The Company shall not be
obligated to fund its obligations under this Agreement, but may at
its sole and exclusive option informally fund this Agreement in
whole or in part. If the Company shall determine to informally
fund this Agreement, the manner of such funding, and the continu-
ance or discontinuance thereof, shall be the sole and exclusive
decision of the Company. If such funding shall be accomplished by
procuring, as owner, life insurance for its own benefit on the life
of Executive, the form of such insurance and the amounts shall be
the sole and exclusive decision of the Company. Executive hereby
agrees to submit to medical examinations, supply such information,
and execute such documents as may be required by the companies to
whom the Company may have applied for such insurance.
6
(b) The rights of Executive, any designated beneficiary of
Executive or any other person claiming through Executive under this
Agreement shall be solely those of an unsecured general creditor of
the Company. Such persons shall have only the right to receive
from the Company those payments as specified under this Agreement.
Executive agrees that he, his designated beneficiary or any other
person claiming through him shall have no rights or interest in any
asset of the Company, including any insurance policies or contracts
that the Company may possess or obtain to informally fund this
Agreement. Any asset used or acquired by the Company in connection
with the liabilities that it has assumed under this Agreement shall
not be deemed to be held under trust for the benefit of Executive
or those persons claiming through Executive, nor shall it be
considered security for the performance of the obligations of the
Company.
7. Assignment of this Agreement or Benefits Hereunder.
(a) Assignment by Company. The benefits hereunder with
respect to the rights of the Company to the services and advice of
Executive may be assigned by the Company to any other corporation
acquiring all or substantially all of the assets of the Company or
to any other corporation into or with which the Company may be
merged or consolidated. The rights of the Company under this
Agreement, as well as the obligations and liabilities of the
Company hereunder, shall inure to and be binding upon any succes-
sors in interest or transferee of the business or assets of the
Company.
(b) Assignment by Executive. Neither Executive, any
designated beneficiary, his heirs, his estate, his administrators,
or other personal representative, nor any other person claiming by,
through or under him shall have any right to commute, encumber,
mortgage, hypothecate, pledge, assign, give or dispose of the
rights to receive any payment or payments hereunder, all of which
payments and the right thereto are expressly declared to be
nonassignable.
8. No Right to Continued Employment. This Agreement shall
not confer upon Executive any right with respect to the continuance
of employment by the Company, nor shall it interfere in any way
with the right of the Company to terminate Executive's employment
at any time, including termination due to disability.
9. Notices.
For the purposes of this Agreement, notice and all other
communications provided for herein shall be in writing and shall be
deemed to have been duly given when delivered or mailed by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
7
If to Executive: __________________________
__________________________
__________________________
If to Company: Oakwood Homes Corporation
Post Office Box 7386
Greensboro, North Carolina 27417
Attention: Secretary
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
10. Effect and Construction of This Agreement.
Subject to Section 5 hereof, this Agreement represents the
entire understanding and agreement between the Company and
Executive with regard to the subject matter contained herein and
supersedes any and all prior or contemporaneous oral or written
agreements or understandings with respect to the subject matter
herein.
11. Governing Law.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of North
Carolina.
12. Miscellaneous.
No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed
to in writing signed by Executive and the Company. No waiver by
either party of any breach of this Agreement shall be deemed a
waiver of any prior or subsequent breach. No agreements or
representations, oral or otherwise, with respect to the subject
matter hereof have been made by either party which are not set
forth expressly in this Agreement.
13. Severability.
The invalidity or unenforceability of any provisions of this
Agreement shall not affect the validity or enforceability of any
other provision of this Agreement, which shall remain in full force
and effect.
14. Execution.
This Agreement is hereby executed in duplicate originals, one
of which is being retained by each of the parties hereto.
8
15. Arbitration; Fees. (a) Any disputes between the Company
and the Executive concerning this Agreement will be settled by
arbitration in accordance with the Commercial Arbitration Rules of
the American Arbitration Association, by a panel of three arbitra-
tors, one selected by the Executive, one selected by the Company
and the other selected by the two so chosen. Judgment upon the
arbitration award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. The costs of the arbitration
shall be borne by the Company.
(b)In the event that the Executive receives
an arbitration award pursuant to subsection (a) above,
the Company shall, within thirty (30) days after the
presentation of proper receipts or invoices therefor,
reimburse the Executive the reasonable fees and disburse-
ments of counsel incurred in connection with such
arbitration or the collection of any amounts awarded the
Executive pursuant thereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the day and year first above set
forth.
OAKWOOD HOMES CORPORATION
By:_________________________________
Nicholas J. St. George, President
[CORPORATE SEAL]
ATTEST:
_____________________________
Secretary
________________________[Seal]
________________________
9
EXHIBIT 10.8
SCHEDULE IDENTIFYING OMITTED EXECUTIVE
RETIREMENT BENEFIT EMPLOYMENT AGREEMENTS
WHICH ARE SUBSTANTIALLY IDENTICAL TO THE
FORM OF RETIREMENT AGREEMENT IN EXHIBIT 10.7
AND PAYMENT SCHEDULES UNDER EXECUTIVE
RETIREMENT BENEFIT EMPLOYMENT AGREEMENTS
The Registrant entered into Executive Retirement Benefit Employment
Agreements, which are identical in all material details with the form of
Executive Retirement Benefit Employment Agreement in Exhibit 10.7, as of
December 18, 1993 with the following employees of the Registrant:
James D. Casterline
Larry T. Gilmore
C. Michael Kilbourne
J. Michael Stidham
Larry M. Walker
The retirement benefit payment schedules to be paid under
the Executive Retirement Benefit Employment Agreements to Messrs. Casterline,
Gilmore, Kilbourne, Stidham and Walker are attached hereto as Appendices
A, B, C, D and E, respectively.
APPENDIX A
SCHEDULE A
RETIREMENT BENEFIT PAYMENT SCHEDULE
JAMES D. CASTERLINE
AGE ON THE LAST DAY OF THE MONTH
IN WHICH RETIREMENT OCCURS MONTHLY BENEFIT
65 $9,124.19
64 $8,448.32
63 $7,822.52
62 $7,243.07
61 $6,706.55
60 $6,209.77
SCHEDULE B
CHANGE OF CONTROL BENEFIT PAYMENT SCHEDULE
JAMES D. CASTERLINE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
54 $620.98
53 $1,241.95
52 $1,862.93
51 $2,483.91
50 $3,104.89
PRIOR TO 50 $6,209.77
SCHEDULE C
DEATH BENEFIT PAYMENT SCHEDULE
JAMES D. CASTERLINE
DEATH DURING THE YEAR
BEGINNING JANUARY 1 MONTHLY BENEFIT
2017 $9,124.19
2016 $8,773.26
2015 $8,435.82
2014 $8,111.37
2013 $7,799.39
2012 $7,499.42
2011 $7,210.98
2010 $6,933.63
2009 $6,666.95
2008 $6,410.53
2007 $6,163.97
2006 $5,926.90
2005 $5,698.94
2004 $5,479.75
2003 $5,268.99
2002 $5,066.34
2001 $4,871.48
2000 $4,684.11
1999 $4,503.96
1998 $4,330.73
1997 $4,164.16
1996 $4,004.00
1995 $3,850.00
1994 $3,701.92
SCHEDULE D
TERMINATION WITHOUT CAUSE PAYMENT SCHEDULE
JAMES D. CASTERLINE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
65 $9,124.19
64 $8,448.32
63 $7,822.52
62 $7,243.07
61 $6,706.55
60 $6,209.77
59 $6,209.77
58 $6,209.77
57 $6,209.77
56 $6,209.77
55 $6,209.77
54 $5,588.79
53 $4,967.81
52 $4,346.84
51 $3,725.86
50 $3,104.88
SCHEDULE E
APPROVED VOLUNTARY TERMINATION PAYMENT SCHEDULE
JAMES D. CASTERLINE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
59 $6,209.77
58 $6,209.77
57 $6,209.77
56 $6,209.77
55 $6,209.77
54 $5,588.79
53 $4,967.81
52 $4,346.84
51 $3,725.86
50 $3,104.88
APPENDIX B
SCHEDULE A
RETIREMENT BENEFIT PAYMENT SCHEDULE
LARRY T. GILMORE
AGE ON THE LAST DAY OF THE MONTH
IN WHICH RETIREMENT OCCURS MONTHLY BENEFIT
65 $7,524.85
64 $6,967.46
63 $6,451.35
62 $5,973.47
61 $5,530.99
60 $5,121.29
SCHEDULE B
CHANGE OF CONTROL BENEFIT PAYMENT SCHEDULE
LARRY T. GILMORE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
54 $512.13
53 $1,024.26
52 $1,536.39
SCHEDULE C
DEATH BENEFIT PAYMENT SCHEDULE
LARRY T. GILMORE
DEATH DURING THE YEAR
BEGINNING JANUARY 1 MONTHLY BENEFIT
2007 $7,524.85
2006 $7,235.43
2005 $6,957.15
2004 $6,689.57
2003 $6,432.27
2002 $6,184.88
2001 $5,947.00
2000 $5,718.27
1999 $5,498.34
1998 $5,286.86
1997 $5,083.52
1996 $4,888.00
1995 $4,700.00
1994 $4,519.23
SCHEDULE D
TERMINATION WITHOUT CAUSE PAYMENT SCHEDULE
LARRY T. GILMORE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
65 $7,524.85
64 $6,967.46
63 $6,451.35
62 $5,973.47
61 $5,530.99
60 $5,121.29
59 $5,121.29
58 $5,121.29
57 $5,121.29
56 $5,121.29
55 $5,121.29
54 $4,609.16
53 $4,097.03
52 $3,584.90
SCHEDULE E
APPROVED VOLUNTARY TERMINATION PAYMENT SCHEDULE
LARRY T. GILMORE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
59 $5,121.29
58 $5,121.29
57 $5,121.29
56 $5,121.29
55 $5,121.29
54 $4,609.16
53 $4,097.03
52 $3,584.90
APPENDIX C
SCHEDULE A
RETIREMENT BENEFIT PAYMENT SCHEDULE
C. MICHAEL KILBOURNE
AGE ON THE LAST DAY OF THE MONTH
IN WHICH RETIREMENT OCCURS MONTHLY BENEFIT
65 $12,533.22
64 $11,604.84
63 $10,745.22
62 $9,949.28
61 $9,212.29
60 $8,529.90
SCHEDULE B
CHANGE OF CONTROL BENEFIT PAYMENT SCHEDULE
C. MICHAEL KILBOURNE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
54 $852.99
53 $1,705.98
52 $2,558.97
51 $3,411.96
50 $4,264.95
PRIOR TO 50 $8,529.90
SCHEDULE C
DEATH BENEFIT PAYMENT SCHEDULE
C. MICHAEL KILBOURNE
DEATH DURING THE YEAR
BEGINNING JANUARY 1 MONTHLY BENEFIT
2016 $12,533.22
2015 $12,051.18
2014 $11,587.67
2013 $11,141.99
2012 $10,713.45
2011 $10,301.40
2010 $9,905.19
2009 $9,524.22
2008 $9,157.90
2007 $8,805.68
2006 $8,467.00
2005 $8,141.34
2004 $7,828.21
2003 $7,527.13
2002 $7,237.62
2001 $6,959.25
2000 $6,691.59
1999 $6,434.22
1998 $6,186.75
1997 $5,948.80
1996 $5,720.00
1995 $5,500.00
1994 $5,288.46
SCHEDULE D
TERMINATION WITHOUT CAUSE PAYMENT SCHEDULE
C. MICHAEL KILBOURNE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
65 $12,533.22
64 $11,604.84
63 $10,745.22
62 $9,949.28
61 $9,212.29
60 $8,529.90
59 $8,529.90
58 $8,529.90
57 $8,529.90
56 $8,529.90
55 $8,529.90
54 $7,676.91
53 $6,823.92
52 $5,970.93
51 $5,117.94
50 $4,264.95
SCHEDULE E
APPROVED VOLUNTARY TERMINATION PAYMENT SCHEDULE
C. MICHAEL KILBOURNE
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
59 $8,529.90
58 $8,529.90
57 $8,529.90
56 $8,529.90
55 $8,529.90
54 $7,676.91
53 $6,823.92
52 $5,970.93
51 $5,117.94
50 $4,264.95
APPENDIX D
SCHEDULE A
RETIREMENT BENEFIT PAYMENT SCHEDULE
MICHAEL STIDHAM
AGE ON THE LAST DAY OF THE MONTH
IN WHICH RETIREMENT OCCURS MONTHLY BENEFIT
65 $12,688.36
64 $11,748.48
63 $10,878.22
62 $10,072.43
61 $9,326.32
60 $8,635.48
SCHEDULE B
CHANGE OF CONTROL BENEFIT PAYMENT SCHEDULE
MICHAEL STIDHAM
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
54 $863.55
53 $1,727.10
52 $2,590.64
51 $3,454.19
50 $4,317.74
PRIOR TO 50 $8,635.48
SCHEDULE C
DEATH BENEFIT PAYMENT SCHEDULE
MICHAEL STIDHAM
DEATH DURING THE YEAR
BEGINNING JANUARY 1 MONTHLY BENEFIT
2019 $12,688.36
2018 $12,200.34
2017 $11,731.10
2016 $11,279.90
2015 $10,846.06
2014 $10,428.90
2013 $10,027.79
2012 $9,642.11
2011 $9,271.26
2010 $8,914.67
2009 $8,571.80
2008 $8,242.11
2007 $7,925.11
2006 $7,620.30
2005 $7,327.21
2004 $7,045.39
2003 $6,774.42
2002 $6,513.86
2001 $6,263.33
2000 $6,022.43
1999 $5,790.80
1998 $5,568.08
1997 $5,353.92
1996 $5,148.00
1995 $4,950.00
1994 $4,759.62
SCHEDULE D
TERMINATION WITHOUT CAUSE PAYMENT SCHEDULE
MICHAEL STIDHAM
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
65 $12,688.36
64 $11,748.48
63 $10,878.22
62 $10,072.43
61 $9,326.32
60 $8,635.48
59 $8,635.48
58 $8,635.48
57 $8,635.48
56 $8,635.48
55 $8,635.48
54 $7,771.93
53 $6,908.39
52 $6,044.84
51 $5,181.29
50 $4,317.74
SCHEDULE E
APPROVED VOLUNTARY TERMINATION PAYMENT SCHEDULE
MICHAEL STIDHAM
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
59 $8,635.48
58 $8,635.48
57 $8,635.48
56 $8,635.48
55 $8,635.48
54 $7,771.93
53 $6,908.39
52 $6,044.84
51 $5,181.29
50 $4,317.74
APPENDIX E
SCHEDULE A
RETIREMENT BENEFIT PAYMENT SCHEDULE
LARRY M. WALKER
AGE ON THE LAST DAY OF THE MONTH
IN WHICH RETIREMENT OCCURS MONTHLY BENEFIT
65 $11,505.75
64 $10,653.47
63 $9,864.33
62 $9,133.63
61 $8,457.07
60 $7,830.62
SCHEDULE B
CHANGE OF CONTROL BENEFIT PAYMENT SCHEDULE
LARRY M. WALKER
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
54 $783.06
53 $1,566.12
52 $2,349.19
51 $3,132.25
50 $3,915.31
PRIOR TO 50 $7,830.62
SCHEDULE C
DEATH BENEFIT PAYMENT SCHEDULE
LARRY M. WALKER
DEATH DURING THE YEAR
BEGINNING JANUARY 1 MONTHLY BENEFIT
2021 $11,505.75
2020 $11,063.22
2019 $10,637.71
2018 $10,228.57
2017 $9,835.16
2016 $9,456.89
2015 $9,093.16
2014 $8,743.42
2013 $8,407.14
2012 $8,083.79
2011 $7,772.87
2010 $7,473.92
2009 $7,186.46
2008 $6,910.06
2007 $6,644.28
2006 $6,388.73
2005 $6,143.01
2004 $5,906.74
2003 $5,679.56
2002 $5,461.12
2001 $5,251.07
2000 $5,049.11
1999 $4,854.91
1998 $4,668.19
1997 $4,488.64
1996 $4,316.00
1995 $4,150.00
1994 $3,990.38
SCHEDULE D
TERMINATION WITHOUT CAUSE PAYMENT SCHEDULE
LARRY M. WALKER
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
65 $11,505.75
64 $10,653.47
63 $9,864.33
62 $9,133.63
61 $8,457.07
60 $7,830.62
59 $7,830.62
58 $7,830.62
57 $7,830.62
56 $7,830.62
55 $7,830.62
54 $7,047.56
53 $6,264.50
52 $5,481.43
51 $4,698.37
50 $3,915.31
SCHEDULE E
APPROVED VOLUNTARY TERMINATION PAYMENT SCHEDULE
LARRY M. WALKER
AGE ON DATE OF TERMINATION MONTHLY BENEFIT
59 $7,830.62
58 $7,830.62
57 $7,830.62
56 $7,830.62
55 $7,830.62
54 $7,047.56
53 $6,264.50
52 $5,481.43
51 $4,698.37
50 $3,915.31
EXHIBIT 11
OAKWOOD HOMES CORPORATION
CALCULATION OF FULLY DILUTED EARNINGS PER SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
Three months ended
December 31,
1993 1992
Net Income $6,314 $3,693
Add :
Reduction in interest on debt
assumed converted, net of tax 0 236
Adjusted net income $6,314 $3,929
Fully diluted net income per
common share $ .30 $ .21
Weighted average common shares
outstanding, including common stock
equivalents and assumed conversion
of debentures 21,403 18,311
( )
