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EXHIBIT 10.39
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this 3rd day of October, 1996, by and between XXXXXXX X. XXXXXX, an individual
(the "Consultant"), and BALANCED CARE CORPORATION, a Delaware corporation
(together with any related, affiliated or subsidiary corporation, the
"Company").
WITNESSETH:
WHEREAS, the Company desires to engage the Consultant to provide
certain services to the Company, and the Consultant is willing to provide such
services to the Company; and
WHEREAS, because of the Consultant's existing knowledge of the plans,
operations, employees and customers of the Company, and the knowledge to be
obtained by the Consultant of the plans, operations, employees and customers of
the Company, it is important to the Company that the Consultant shall not
disclose any confidential or proprietary information of the Company during or
after the term of this Agreement; and
WHEREAS, the Consultant is willing to enter into this Agreement upon
the terms and conditions herein set forth.
NOW, THEREFORE, for the consideration set forth in this Agreement, and
intending to be legally bound hereby, the Consultant and the Company mutually
promise and agree as follows:
1. Consulting Duties, Term. The Company agrees to and does hereby
engage the Consultant in a consulting capacity as an independent contractor to
provide certain services, including but not limited to the services set forth on
Exhibit A attached hereto and incorporated herein, and the Consultant does
hereby agree to serve the Company in such capacity. Unless earlier terminated as
provided in Paragraph 4, this Agreement shall have an initial term of one (1)
year, commencing on November 1, 1996 and expiring on November 1, 1997. Unless
the Consultant or the Company has given the other party written notice of its
intention not to renew this Agreement at least ninety (90) calendar days prior
to the end of the then existing term, this Agreement shall be automatically
renewed for successive one year terms.
2. Time Required. The Consultant shall devote his best efforts
and such time as shall be reasonably necessary to perform the services pursuant
to this Agreement up to a maximum amount of twenty (20) hours per week, which
maximum amount may be adjusted from time to time upon the mutual consent of the
parties hereto.
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3. Compensation; Billing.
(a) On a monthly basis, the Consultant shall submit to the
Company an invoice, in form and content acceptable to the Company, on
or before the fifth (5th) business day of the month following the
month in which services are provided by the Consultant. In return for
the Consultant's services, the Company shall pay the Consultant an
hourly fee of One Hundred Dollars ($100.00), to be paid monthly or
according to the Company's standard payment practice.
(b) The Company will pay for the reasonable expenses
incurred by the Consultant for travel, lodging and other expenses
arising in connection with the services to be provided pursuant to
this Agreement. Such expenses shall be approved by the Chief
Executive Officer of the Company in advance. All travel arrangements
for Consultant shall be made by the appropriate Company personnel.
The compensation set forth in this Paragraph 3 shall be considered as full
payment to the Consultant for all such services.
4. Termination.
(a) Either party may terminate this Agreement without cause
by giving the other party at least sixty (60) calendar days' prior
written notice.
(b) The Company may terminate this Agreement without cause
immediately upon written notice to the Consultant upon the beach by
Consultant of any of the terms or conditions of this Agreement,
including but not limited to the confidentially and nondisclosure
provisions set forth in Paragraph 5.
(c) As of the date of termination of this Agreement, neither
party shall have any further rights or obligations hereunder except
for the rights and obligations accruing prior to the date of
termination or arising as a result of any breach of this Agreement.
Notwithstanding the foregoing, the following provisions shall survive
the termination or expiration of this Agreement, regardless of the
cause of such termination: Paragraph 5 and Paragraph 6(b).
5. Confidentiality; Nondisclosure.
(a) The Consultant recognizes and acknowledges that during
the term of this Agreement, the Consultant will have access to, be
provided with and, in some cases, will prepare and create, certain
confidential and proprietary information and trade secrets of the
Company arising in connection with the plans, operations, employees
and customers of the Company (collectively, the "Information"), all of
which is of substantial value to the Company and its business.
(b) The Consultant agrees to keep the Information
confidential and that the Information shall not, without the prior
written consent of the Company, be copied,
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divulged, disclosed, provided or otherwise made available by the
Consultant or any of Consultant's employees, contractors, agents or
representatives (collectively, the "Representatives"), and shall not be
used by the Consultant or any of the Representatives other than as
provided in this Agreement. Moreover, the Consultant agrees to transmit
the Information only to such of the Representatives who need to know
the Information for the sole purpose of assisting the Consultant in
providing the services pursuant to this Agreement, who are informed of
this Agreement and who agree to be bound by the terms hereof as if a
party hereto.
(c) The Consultant acknowledges and agrees that all of the
reports, memoranda or other materials prepared by the Consultant or
the Representatives and any other materials containing or otherwise
reflecting the Information (together with all copies of the foregoing)
are and shall be the sole and exclusive property of the Company.
(d) The Consultant agrees that, upon the Company's request,
all of the furnished Information, any reports, memoranda or other
materials prepared by the Consultant or the Representatives and any
other materials containing or otherwise reflecting the Information
(together with all copies of the foregoing), shall, at the Company's
option, be (1) returned to the Company or (2) destroyed at the
Company's direction.
(e) Notwithstanding anything herein to the contrary, no
obligation or liability shall accrue hereunder with respect to any of
the matters contained in the Information to the extent that such
Information (1) is or becomes publicly available other than as a
result of acts by the Consultant or the Representatives in violation
of this Agreement, (2) is in the possession of the Consultant or the
Representatives prior to disclosure by the Company or (3) is, on the
advice of counsel, required to be disclosed by law.
(f) The Consultant acknowledges and agrees that the
Information is a valuable and unique asset of the Company and that the
provisions of this Agreement are made for the benefit of the
Consultant and for the benefit of the Company, and that in the event
of any breach of this Agreement, the Company will be harmed and unable
to be made whole by monetary damages. It is accordingly agreed that
the Company, in addition to any other remedy to which it may be
entitled in law or at equity, shall be entitled to an injunction or
injunctions to remedy breaches of this Agreement and/or compel
specific performance of this Agreement.
The provisions of this Paragraph 5 shall survive termination or expiration of
this Agreement and shall remain in full force and effect until the expiration
of two (2) years following the date of termination or expiration, as the case
may be.
6. Independent Contractor. The Consultant is and shall at all
times be an independent contractor and shall not hold himself out as an
employee of the Company. Nothing in this Agreement is intended, nor shall it
be construed, to create an employer/employee relationship, a joint venture
relationship, a lease or landlord/tenant relationship, or to allow the Company
to exercise control over the manner or method by which the Consultant performs
the
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services which are the subject of this Agreement, except that the Company shall
have an interest in ensuring that the Consultant's services shall be performed
in a competent, efficient and satisfactory manner. Furthermore:
(a) The Consultant shall be liable for his own debts,
obligations, acts and omissions, including the payment of all required
withholding, social security, income tax, unemployment insurance and
other taxes or benefits pursuant to any law or requirement of any
governmental body.
(b) The Company shall not withhold on behalf of the
Consultant any sums for income tax, unemployment insurance, social
security or other withholding or benefit pursuant to any law or
regulation of any governmental body. The Consultant will indemnify and
hold harmless the Company from any loss or liability arising from the
Company's failure to make such payments or withholdings. The
provisions of this Paragraph 6(b) shall survive termination or
expiration of this Agreement.
(c) If the Internal Revenue Service or any other governmental
body shall, at any time, question or challenge the independent
contractor status of the Contractor, the Company and/or the
Consultant, upon receipt by either of them of notice from the Internal
Revenue Service or any other governmental body, shall promptly notify
the other party and afford the other party the opportunity to
participate in any discussions or negotiations with the party that
received notice from the Internal Revenue Service or other
governmental body as such party that received notice may reasonably
request. Each party shall bear its respective costs in the event of
such inquiry.
(d) The Consultant hereby agrees that the Company shall not
be obligated to provide the Consultant with vacation pay, health and
disability insurance or workers' compensation insurance; provided,
however, if the Consultant requests that he be provided with health
and disability insurance coverage similar to the benefits being
provided by the Company to its employees, the Company will use its
best efforts to obtain said health and disability insurance for
Consultant within seven business (7) days of the Consultant's request.
Health and disability insurance so obtained will be at Consultant's
expense.
7. Scope. The event that any provision of this Agreement is
deemed by a court of competent jurisdiction to be excessively broad as to
duration, scope, activity or subject, such provision shall be construed and
enforced to the fullest extent permitted by law.
8. Notices. All notices, requests, demands or other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been given at the time when personally delivered, or mailed in a
registered or certified prepaid envelope, return receipt requested, or sent by
overnight courier that regularly provides receipts and is addressed to the
address below:
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If to the Consultant to:
Xxxxxxx X. Xxxxxx
0000 Xxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxx, XX 00000
If to the Company to:
Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx, President and CEO
or at such other address as hereafter may be notified in writing by one party
to the other.
9. Entire Agreement. This Agreement contains the entire
agreement of the parties with respect to the subject matter hereof and shall
not be modified or changed in any respect except in writing duly signed by the
parties hereto.
10. Interpretation of Provisions. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
11. Captions. Captions in this Agreement are solely for purposes
of identification and shall not in any manner alter or vary the interpretation
or construction of this Agreement.
12. Assignment All the terms and provisions of this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, personal representatives, transferees, successors and
assigns. This Agreement shall be assignable by the Company to a subsidiary,
affiliate or successor corporation. The Consultant shall not have the right to
assign this Agreement without the prior written consent of the Company, which
consent may be withheld in the Company's sole discretion.
13. Counterparts. This Agreement may be executed in one (1) or
more counterparts. Each full counterpart shall be deemed an original, but all
such counterparts together shall constitute one and the same instrument
14. Governing Law. This Agreement shall be governed by,
interpreted, construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, including its statutes of limitation but without
regard to its conflict of laws rules.
IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto have executed and delivered this Agreement on the date first above
written.
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WITNESS: CONSULTANT
/s/ Xxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx
ATTEST/WITNESS: BALANCED CARE CORPORATION, a
Delaware corporation
/s/ Xxxxx X. Xxxxxx
------------------------------- By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name, Title
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