EXHIBIT 10.26
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made between PCI Holding Corp., a Delaware
corporation (the "Company"), and Xxxxxxx X'Xxxxx (the "Contractor"), effective
this 11th day of October 2002 for the purpose of setting forth the exclusive
terms and conditions by which Company desires to acquire Contractor's services
on a temporary basis.
In consideration of the mutual obligations specified in this Agreement,
and any compensation paid to Contractor for its services, the parties, intending
to be legally bound hereby, agree to the following:
1. SERVICES/TERM: The Company hereby retains Contractor, and the Contractor
hereby agrees to perform certain services assigned to the Contractor by the
Company as shall be mutually agreed upon (the "Services"). Unless terminated
earlier in accordance with Section 4 below, this Agreement shall be in effect
for the period beginning on October 11, 2002 and ending on the earliest to occur
of (i) the repayment in full of the principal under that certain Senior
Subordinated Promissory Note issued by the Company to Chemed Corporation
("Chemed"), dated as of the date hereof, a copy of which is attached hereto as
Exhibit A (the "Note"), (ii) any sale, transfer or other disposition of the Note
by Chemed, (iii) any exercise, whether in whole or in part, of that certain
Common Stock Purchase Warrant No. W-1 issued by the Company to Chemed, dated as
of the date hereof, a copy of which is attached hereto as Exhibit B, and (iv)
the termination of Contractor's employment with Chemed.
2. CONSIDERATION:
(a) In exchange for the full, prompt, and satisfactory performance of
all Services to be rendered to the Company hereunder, the Company shall provide
the Contractor, as full and complete consideration for the Services rendered
hereunder, cash compensation at the rate of Three Thousand Dollars ($3,000) per
month during the term of this Agreement. The Company shall pay such monthly
compensation to Contractor on or before the 15th day of each month.
(b) The Contractor shall not be entitled to receive any other
consideration or any benefits from the Company. Except as otherwise required by
law, the Company shall not withhold any sums from payments made to the
Contractor for Social Security or other federal, state or local tax liabilities
or contributions, and all withholdings, liabilities, and contributions shall be
solely the Contractor's responsibility. Further, the Contractor understands and
agrees that the services performed for the Company are not covered under the
unemployment insurance laws. Accordingly, the Contractor shall have sole and
exclusive responsibility for the payment of all federal, state and local income
taxes, for all employment and disability insurance and for Social Security and
other similar taxes with respect to any consideration or benefits provided by
the Company hereunder. The Company will issue Contractor an Internal Revenue
Service ("IRS") Form 1099 for the payment of the consulting fees described in
this Section at the appropriate time. The
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Contractor shall assume and accept all responsibilities which are imposed on
independent contractors by any statute, regulation, rule of law or otherwise.
3. NONDISCLOSURE OBLIGATION:
The Contractor shall not, either during the term of this Agreement or
at any time thereafter, for any reason whatsoever, reveal to any person or
entity (both commercial and non-commercial) any of the trade secrets or
confidential business information concerning the Company or any of its
affiliates: including, without limitation, its marketing plans and strategies;
pricing and costing policies; customer and supplier lists; or nonpublic
financial information of the Company or any of its affiliates so far as they
have come or may come to the Contractor's knowledge. This restriction shall not
apply to: (i) information that may be disclosed generally or is in the public
domain through no fault of the Contractor; (ii) information received from a
third party outside the Company that was disclosed without a breach of any
confidentiality obligation; (iii) information approved for release by written
authorization of the Company; or (iv) information that may be required by law or
an order of any court, agency or proceeding to be disclosed. The foregoing
restrictions shall not prevent Contractor from consulting with, being employed
by or serving as a director of other companies; provided, however, that
Contractor's obligations under this Section 3 shall not be affected by any such
consulting, employment or service.
4. TERMINATION:
This Agreement may only be terminated prior to the expiration of its
term (as set forth in Section 1 above) by either party upon thirty (30) days'
prior written notice.
5. INDEPENDENT CONTRACTOR:
The Company and the Contractor expressly agree and understand that the
Contractor is an independent contractor and nothing in this Agreement nor the
services rendered hereunder is meant to or shall be construed in any way or
manner as creating between them a relationship of employer and employee,
principal and agent, partners or any other relationship other than that of
independent parties contracting with each other solely for the purpose of
carrying out the provisions of the Agreement. The Contractor is not the agent of
the Company and is not authorized and shall not have the power or authority to
bind the Company or incur any liability or obligation, or act on behalf of the
Company.
While the Company is entitled to provide the Contractor with general
guidance to assist the Contractor in completing the scope of work to the
Company's satisfaction, the Contractor is ultimately responsible for directing
and controlling the performance of the task comprising the scope of work, in
accordance with the terms and conditions of this Agreement. The Contractor shall
use his best efforts, energy and skill in his own name and in such manner as he
sees fit.
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6. GENERAL:
(a) This Agreement may not be changed unless mutually agreed upon in
writing by both parties.
(b) The Contractor represents that his performance of all the terms of
this Agreement does not and will not breach any agreement entered into by the
Contractor with any other party, and the Contractor agrees not to enter into any
agreement, oral or written, in conflict herewith.
(c) The Contractor hereby agrees that each provision herein shall be
treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other clauses
herein. Moreover, if one or more of the provisions contained in this Agreement
shall for any reason be held to be excessively broad as to scope, activity,
subject or otherwise so as to be unenforceable at law, such provision or
provisions shall be construed by the appropriate judicial body by limiting or
reducing it or them so as to be enforceable to the maximum extent compatible
with the applicable law as it shall then appear.
(d) Section 3 shall survive the termination of this Agreement for any
reason, including expiration of the term of the Agreement.
(e) This Agreement and all aspects of the relationship between the
parties hereto shall be construed and enforced in accordance with and governed
by the internal laws of the Commonwealth of Massachusetts without regard to its
conflict of laws provisions.
(g) This instrument contains the entire agreement between the parties
hereto with respect to the transactions contemplated herein. All prior
negotiations and agreements between the parties are superseded by this Agreement
and there are no representations, warranties, understandings or agreements other
than those expressly set forth herein.
(h) This Agreement may be executed in duplicate counterparts (including
counterparts executed and delivered by facsimile, which shall be treated as
counterparts executed and delivered manually), which, when taken together, shall
constitute one instrument and each of which shall be deemed to be an original
instrument.
(i) In the event that the Contractor's employment with Chemed is
terminated (whether by the Contractor or by Chemed), the Contractor shall
promptly, but in any event within five (5) days thereafter, notify the Company
of such termination.
(j) Any notice, request or other communications to be given to any
party hereunder shall be given in writing and shall be effective when either
served by hand delivery, electronic facsimile transmission, express overnight
courier service, or by
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registered or certified mail, return receipt requested, addressed to the parties
at their respective addresses set forth above, or to such other address or
addresses as either party may later specify by written notice to the other.
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IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date first above written.
PCI HOLDING CORP. CONTRACTOR
By: /s/ Xxx Xxxxxxxxx /s/ Xxxxxxx X'Xxxxx
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Xxxxxxx X'Xxxxx
Name: Xxx Xxxxxxxxx
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Title: Executive Vice President - Finance Social Security Number: ###-##-####
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Date: 10/11/02 Date: 10/11/02
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EXHIBIT A
SENIOR SUBORDINATED PROMISSORY NOTE
EXHIBIT B
COMMON STOCK PURCHASE WARRANT
