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Exhibit 10.165
CONSULTING AGREEMENT
THIS AGREEMENT dated as of the 16th day of July, 2001 between BALANCED CARE
CORPORATION, a corporation incorporated under the laws of the State of Delaware
("BCC") and RETIREMENT RESIDENCES ADVISOR INC., a corporation incorporated under
the laws of the Province of Ontario (the "Consultant").
WHEREAS the Consultant has certain expertise in the management and operation of
assisted living facilities;
AND WHEREAS BCC wishes to develop and implement a service model similar to that
utilized by the Consultant or its affiliates;
AND WHEREAS BCC has requested that the Consultant provide advice and assistance
to BCC pursuant to this Consulting Agreement;
NOW THEREFORE IN CONSIDERATION of the mutual covenants herein contained, the
parties agree as follows:
Article I - CONSULTING SERVICES
1.1 BCC hereby engages the Consultant to provide and the Consultant shall
provide, during the term of this Consulting Agreement, the services set
forth in Schedule "A" hereto.
1.2 For greater certainty, the parties acknowledge and agree that all
decisions regarding strategic matters and operations of BCC shall be
determined by BCC's board of directors in their sole discretion.
Article II - FEES and EXPENSES
2.1 BCC shall pay to the Consultant, as compensation for the services
rendered to BCC pursuant to this Consulting Agreement, a monthly
consulting fee of US$35,000 payable in arrears on the last business day
of each month during the term of this Consulting Agreement.
2.2 In addition to the Consulting fee payable pursuant to Section 2.1, BCC
hereby agrees to reimburse the Consultant for all reasonable
out-of-pocket travel expenses incurred by the Consultant or its
officers and employees in performing any services under this
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Consulting Agreement. Such travel expenses shall be paid in accordance
with BCC's reimbursement policy.
Article III - INFORMATION and indemnity
3.1 In order to enable the Consultant to perform its services pursuant to
this Consulting Agreement, BCC shall provide such information as is
reasonably requested from the Consultant from time to time during the
term of this Consulting Agreement.
3.2 Provided that the Consultant acts in good faith, BCC shall indemnify
and save the Consultant and its employees, agents, officers, directors
and direct and indirect shareholders harmless from all liabilities,
actions, causes of action, claims, demands, suits, proceedings, losses,
costs and damages whatsoever arising out of or in connection with its
services pursuant to the Consulting Agreement or otherwise on behalf of
BCC.
Article IV - TERM AND TERMINATION
4.1 This Consulting Agreement shall become effective as of the date first
written above and shall continue in effect for a period of 120 days
therefrom. Unless the Consulting Agreement is terminated in accordance
with Section 4.2, the term of this Consulting Agreement shall be
automatically renewed for additional 120 day terms.
4.2 This Consulting Agreement may be terminated as follows:
(a) by BCC forthwith upon notice to the Consultant if proceedings are
commenced and not diligently contested in good faith for the
bankruptcy, receivership, dissolution, liquidation or winding up of the
Consultant; or
(b) by either party, upon not less than 30 days' prior written notice to
the other.
Article V - NOTICE
5.1 Any notice or other communication required or permitted to be given
hereunder shall be in writing unless some
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other method of giving such notice or other communication is expressly
accepted by the party to whom it is given, and may be given in writing
by personal delivery, electronic messaging or by telecopier addressed
follows:
(a) To BCC:
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier: 000-000-0000
E-Mail: xxxxxxx@xxxxxxx.xxx
(b) To the Consultant:
South Tower, Suite 601
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: President
Telecopier: 000-000-0000
E-Mail: xxxxxxx@xxxxxxxx.xxx
or at such other address as may be given by either of them to the other in
writing from time to time.
Article VI - ADDITIONAL COVENANTS
6.1 During the term of this Consulting Agreement, the Consultant agrees to
provide BCC with such information as is necessary to enable BCC to
comply with the securities laws of the United States, including without
limitation, the requirements under the Securities Exchange Act of 1934,
as amended. The Consultant further acknowledges and agrees that under
certain circumstances, this Consulting Agreement and the terms and
conditions thereof, may need to be disclosed.
6.2 In connection with the Consultant's agreement to provide services under
this Consulting Agreement, BCC will be furnishing certain confidential
and/or proprietary information about BCC to the Consultant
(collectively, the "Information"). The Consultant agrees that it will
keep the information confidential and that the information shall not,
without the prior written consent of BCC, be disclosed by the
Consultant or any of its affiliates, subsidiaries, partners, agents or
employees (collectively, the
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"Representatives") and shall not be used by the Consultant or any of
its Representatives other than in connection with rendering the
services to be provided under the Agreement. Notwithstanding anything
herein to the contrary, no obligation or liability shall accrue under
this Section 6.2 with respect to any of the information 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
its Representatives in violation of this Agreement, (2) is in the
possession of the Consultant or its Representatives prior to disclosure
by BCC or (3) is, on the advice of counsel, required to be disclosed by
law.
6.3 The Consultant acknowledges and agrees that United States securities
laws prohibit any person or entity that has material non-public
information ("Material Information") about a company from trading in
the securities of such company or from communicating such Material
Information to any other third party under circumstances in which it is
reasonably foreseeable that such third party is likely to trade in the
securities of such company. The Consultant agrees not to use such
Material Information in the trading of securities of BCC or to
communicate such Material Information to others who so trade in
securities of BCC.
6.4 THE PARTIES HEREBY IRREVOCABLY SUBMIT AND CONSENT TO THE NON-EXCLUSIVE
JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING
JURISDICTION OVER CUMBERLAND COUNTY, PENNSYLVANIA FOR ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO
THIS AGREEMENT.
Article VII - MISCELLANEOUS
7.1 The provisions of this Consulting Agreement shall be construed and
interpreted in accordance with the laws of the Province of Ontario as
at the time in effect.
7.2 This Consulting Agreement shall not: (I) be changed or modified in
whole or in part, except by instrument in writing signed by the parties
hereto or their respective successors or permitted assigns otherwise as
provided herein; and (II) be assignable by either party hereto without
the consent in writing of the other
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party being first had and obtained. Notwithstanding the foregoing, the
Consultant may assign this Consulting Agreement to an affiliate (within
the meaning of the Securities Act (Ontario)) of the Consultant,
provided such affiliate enters into a similar agreement with BCC.
7.3 The Consultant shall perform its duties hereunder as an independent
contractor and not as an agent of BCC or of the directors thereof. BCC
and the Consultant are not partners or joint venturers with each other
and nothing herein shall be construed so as to make them partners or
joint venturers or impose any liability as such on either of them.
IN WITNESS WHEREOF the parties hereto have executed this Consulting
Agreement as of the day and year first above written.
BALANCED CARE CORPORATION
Per: /s/ Xxxx X. Xxxxxxxxx
RETIREMENT RESIDENCES ADVISOR INC.
Per: /s/ Xxxxx Xxxxxxxxx
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SCHEDULE "A"
Consulting Services
- Assist BCC's Chief Executive Officer and management in reviewing the
lease-up and operations of BCC's facilities
- Advise BCC's Chief Executive Officer and management regarding the
development and implementation of a service model similar to that
utilized by the Consultant or its affiliates
- Provide recommendations to BCC regarding methods to reduce costs and
otherwise increase profitability
