EXHIBIT 10.2
CONSULTING AGREEMENT
This Agreement made [insert date], by and between NEW YORK HEALTH CARE,
INC., a New York corporation, having its business address at 0000 XxXxxxxx
Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter the "Company") and _____________, an
individual, residing at_________________, Brooklyn, NY _______ (hereinafter
"Consultant").
Whereas, the Company is engaged in the home health care business and has
previously employed the Consultant as a senior executive officer and member of
its board of directors; and
Whereas, the Consultant is one of the original founders of the Company and
posesses extensive and valuable knowledge and understanding concerning the home
health care industry, with particular regard to both the territory where the
Company engages in business and the Company's home health care operations; and
Whereas, the Company desires to utilize the Consultant's expertise in
connection with its home health care business; and
Whereas, the Consultant is willing to provide consulting services to the
Company pursuant to the terms and conditions of this Agreement;
Now, therefore, in consideration of the mutual promises contained herein
and on the terms and conditions hereinafter set forth, the Company and
Consultant agree as follows:
1. Provision of Services.
(a) Consultant agrees, to the extent reasonably required in the
conduct of the home health care business of the Company, to place at the
disposal of the Company his judgment and experience and to provide business
development services to the Company including the following:
(i) advice regarding evaluation of the Company's managerial
and financial requirements;
(ii) advice regarding recruiting, screening, evaluating and
recommending key personnel, directors, accountants and other professional
consultants;
(iii) advice regarding preparation of budgets and business
plans;
(iv) advice regarding sales and marketing planning and
activities; and
(v) advice regarding shareholder relations and public
relations matters.
All such services shall at all times be at the reasonable request of the
Company.
(b) Consultant agrees to use his best efforts in the furnishing of
advice and recommendations.
2. Term. The term of this Agreement shall commence on the first date
that the Consultant is no longer a member of the Company's Board of Directors
(the "Effective Date") and shall conclude on the fifth anniversary of the
Effective Date.
3. Compensation. In consideration of Consultant's services, the
Company agrees to issue to the Consultant on the Effective Date a non-qualified
stock, which may be exercised commencing 60 days after the issuance of the
option, permitting the Consultant to acquire 500,000 shares of the Company's
common stock during a term of ten years at a price per share equal to the
closing price of the Company's common stock on the Effective Date. The shares of
common stock underlying the stock option shall be promptly registered by the
Company, at its sole cost and expense, on XXX Xxxx X-0, or if such form is
unavailable then on any other SEC form appropriate for such registration, so
that the underlying shares shall be registered no later than 90 days after the
Effective Date. The Company also agrees to reimburse Consultant for all
reasonable and necessary expenses incurred by the Consultant in connection with
services he renders hereunder, provided however, that any single expense in
excess of $1,000.00 shall be approved in advance by the Company in writing.
4. Status of Consultant. Consultant shall be deemed to be an independent
contractor and, except as expressly provided or authorized in this Agreement,
shall have no authority to act or represent the Company.
5. Other Activities of Consultant. The Company recognizes that Consultant
may render management and other services to other companies which may or may not
have policies or conduct activities similar to those of the Company. Consultant
shall be free to render such advice and other services and the Company hereby
consents thereto. Consultant shall not be required to devote his full time and
attention to the performance of his duties under this Agreement, but shall
devote only so much of his time and attention as is reasonably necessary for
such purposes.
6. Control. Nothing contained herein shall be deemed to require the
Company to take any action contrary to its Certificate of Incorporation or
By-Laws, or any applicable statute or regulation, or to deprive its Board of
Directors and any committee thereof of their responsibility for control of the
conduct or the affairs of the Company.
7. Liability of Consultant. In furnishing the Company with management
advice and other services as herein provided, Consultant shall not be liable to
the Company or its creditors for errors of judgment or for anything except
willful malfeasance, bad faith or gross negligence in the performance of his
duties or reckless disregard of his obligations and duties under the terms of
this Agreement. It is further understood and agreed that Consultant may rely
upon information furnished to him and reasonably believed by him to be accurate
and reliable and, except as herein provided, Consultant shall not be accountable
for any loss suffered by the Company by reason of the Company's action or
non-action on the basis of any advice, recommendation or approval of Consultant
or his employees, attorneys or agents.
8. Cross-Indemnification. Each of the Company and the Consultant agree to
indemnify and hold each other and their respective affiliates, control persons,
officers, employees, attorneys and agents (collectively the "Indemnified
Person(s)") harmless from and against any and all losses, claims, damages,
expenses or liabilities, joint or several whatsoever (including but not limited
to any and all expenses whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever), as such are incurred, to which the respective Indemnified
Persons may become subject arising out of or based upon any act or statement
made in connection with the performance of this Agreement, or based upon written
information furnished by the Company or the Consultant, as the case may be, in
any jurisdiction, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, unless such act, statement or omission was made in reliance upon
and in conformity with written information furnished by or on behalf of such
Indemnified Person. The indemnity shall not apply, however, in the event a court
of competent jurisdiction has made a final determination that the Indemnified
Person engaged in willful malfeasance, bad faith, gross negligence or reckless
disregard of his obligations in the performance of his duties, or any unlawful
act in the performance of this Agreement which gave rise to the loss sought to
be indemnified; provided, however, that pending such final court determination
the indemnification and reimbursement provisions of this paragraph shall apply
and the indemnifying party shall perform its obligations hereunder to reimburse
the Indemnified Person for their legal fees and expenses. The indemnity provided
for in this paragraph shall be in addition to any rights which an Indemnified
Person may have at common law or otherwise.
9. Notices. Any notice or other communication required or permitted
to be given to a party to this Agreement shall be in writing and shall be mailed
by certified mail, return receipt requested, or by Federal Express, Express
Mail, or similar overnight delivery or courier service, or delivered (in person
or by confirmed facsimile or e-mail or similar telecommunications equipment) to
such party at the address of set forth in this Agreement (or to such other
address as the person shall have furnished in writing to the parties to this
Agreement in accordance with the notice provisions of this paragraph). Any
notice given by any means permitted by this paragraph shall be deemed given at
the time of receipt thereof.
10. Recovery of Legal Expenses. If legal proceedings or any
litigation shall be commenced between the parties to this Agreement concerning
the enforcement of any of the material terms and conditions of this Agreement,
the prevailing party in such legal proceedings or litigation shall also be
awarded all of their reasonable legal fees, expenses and costs incurred as a
result of such legal proceedings or litigation.
11. Survival of Representations. The representations, warranties,
covenants and agreements of the parties contained in this Agreement shall
survive the execution and delivery of this Agreement.
12. Saving Clause. In case any one or more of the provisions of
this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained in
this Agreement shall not in any way be affected thereby.
13. Waiver of Compliance. Failure to insist upon strict compliance
with any of the terms, covenants or conditions of this Agreement shall not be
deemed a waiver of such terms, covenants or conditions, nor shall any waiver or
relinquishment of any right or power hereunder at any time be deemed a waiver or
relinquishment of such rights or powers at any other time.
14. Modification. This Agreement may not be altered, modified or
amended and no waiver of compliance shall be effective unless the same is in
writing and signed by the party to be charged therewith.
15. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each of the parties to it and their respective
successors and assigns.
16. Headings. The headings of paragraphs in this Agreement have
been inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall together constitute but one and the same instrument.
18. Miscellaneous. This Agreement sets forth the entire agreement and
understanding between the parties and supersedes all prior discussions,
agreements and understandings of every and any nature between them. This
Agreement is executed in and shall be construed and interpreted according to the
laws of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by
their respective officers or representatives duly authorized on the day and year
first above written.
NEW YORK HEALTH CARE, INC.
By: _______________________
CONSULTANT
___________________________
(INSERT NAME)
