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Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into
this 22nd day of March, 1999, to be effective on and as of December 8, 1998, by
and between PIER XXXXX, 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 a term of two (2) years,
commencing on December 8, 1998 and expiring on December 8, 2000.
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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 of 120 hours per year, which maximum may be
adjusted from time to time upon the mutual consent of the parties hereto.
3. Compensation; Billing.
(a) On a quarterly basis, on or before June 30, September 30,
December 31 and March 31, as applicable, the Consultant shall submit
an invoice to the Company setting forth the number of hours spent by
the Consultant providing services hereunder for the applicable time
period. The invoice shall be in a form and content reasonably
acceptable to the Company. As consideration, for each hour that the
Consultant provides services hereunder, the Company shall grant the
Consultant a non-qualified stock option for 250 shares of the
Company's common stock, par value $0.001 (the "Common Stock"), subject
to the terms and conditions pertaining to "Independent Contractors"
under the Company's 1996 Stock Incentive Plan, as amended and restated
(as the same may be modified from time to time, the "Plan"). Each
option will be granted pursuant to the form of Independent Contractor
Stock Option Award Agreement (the "Award Agreement") attached hereto
as Exhibit B (as the same may be modified from time to time). The
grant date of each option shall be the date on which the Board of
Directors of the Company approves the grant. The exercise price of
each option shall be the fair market value of the Common Stock on the
grant date. The Company will use its best efforts to submit the
Consultant's invoice for approval at the next regularly scheduled
meeting of the Board of Directors following receipt of the invoice.
(b) Based on the compensation formula set forth in Paragraph 3(a)
above (i.e., the number of service hours multiplied by 250 shares of
Common Stock), the maximum amount of compensation that the Consultant
could receive hereunder is the grant of stock options to purchase
60,000 shares of Common Stock; provided, however, the Company is only
obligated to grant that number of stock options that the Consultant
has earned based on the actual number of service hours provided by the
Consultant during the term hereof.
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(c) The Company will reimburse the Consultant for reasonable
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 rendered under this Agreement.
4. Termination.
(a) Either party may terminate this Agreement without cause by
giving the other party thirty (30) calendar days? prior written
notice.
(b) This Agreement shall automatically terminate upon the death
or disability of the Consultant.
(c) The Company may terminate this Agreement with 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.
(d) As of the date of termination of this Agreement, the
Company's obligation to grant, and the Consultant's right to be
awarded, stock options shall cease and 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. Any stock options granted to
the Consultant as compensation under Paragraph 3 as of the date of
termination shall be governed by the terms and conditions of the Award
Agreement and the Plan. 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).
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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, 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
documents, instruments, 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 documents, instruments, 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.
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(e) The Consultant further acknowledges and agrees that U.S.
securities laws prohibit any person or entity that has material
non-public information about a company from trading in the securities
of such company or from communicating such 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 information in the
trading of securities of the Company or to communicate such
information to others who so trade in the securities of the Company.
(f) 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.
(g) 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 herself out as an employee of the
Company. Nothing in this Agreement is
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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 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.
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7. Scope. In 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:
If to the Consultant to:
Pier Xxxxx
000 Xxxxx Xxxxx Xxxx
Xxxx, Xxxx
If to the Company to:
Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, President & 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.
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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; provided, however, that the
Consultant shall have the right to subcontract or assign work under this
Agreement to the Consultant's employees or other independent contractors so long
as any such subcontractee or assignee agrees to be bound by the provisions of
Paragraph 5 (Confidentiality; Non-Disclosure) and Paragraph 6 (Independent
Contractor) of this Agreement, and further provided that the Consultant shall
provide written notice to the Company prior to any such assignment.
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
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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 to be effective on and as of
December 8,1998.
WITNESS: CONSULTANT
/s/ Xxxxx X. San Chez /s/ PIER X. XXXXX
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Pier Xxxxx
ATTEST/WITNESS: BALANCED CARE CORPORATION, a
Delaware corporation
/s/ Xxxxx X. Xxxxxx By: /s/ XXXX XXXXXXXXX
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Xxxx Xxxxxxxxx
President and CEO
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EXHIBIT A
Description of Consulting Services
1. Advise on Investor Relations.
2. Advise on Skilled Nursing Operations and PPS Issues.
3. Advise on Tactical Planning of Continuum Concept.
4. Advise on Corporate Organizational Matters.
5. Provide such other services as shall be mutually agreed between the parties
hereto.
Note: This Agreement specifically excludes any and all services provided by Pier
Xxxxx in his capacity as a member of the Board of Directors of Balanced Care
Corporation or any Committee thereof.
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