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EXHIBIT 10.38
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
(Employment Agreement)
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (this
"Assignment") is made this 30th day of June, 1997, to be effective on and as of
July 1, 1997 (the "Effective Date"), among XXXXXX HEALTH CARE GROUP, INC., a
Missouri corporation (the "Assignor"), BBC MANAGEMENT COMPANY AT MISSOURI,
INC., a Delaware corporation (the "Assignee") and XXXX XXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, Assignor, as employer, and Employee, as employee,
entered into that certain Employment Agreement dated as of September 1, 1996
(the "Employment Agreement"), wherein Assignor retained the services and
employment of Employee as more specifically set forth in the Employment
Agreement; and
WHEREAS, pursuant to the terms of that certain Asset Purchase
Agreement dated August 31, 1996 (as amended by that certain Agreement of
Amendment of even date herewith, the "Asset Purchase Agreement"), entered into
between Assignor and Balanced Care Corporation, a Delaware corporation ("BCC"),
BCC or an affiliate of BCC agreed to acquire substantially all of the assets of
Assignor, including Assignor's rights and obligations under the Employment
Agreement; and
WHEREAS, pursuant to the terms of that certain Assignment and
Assumption Agreement dated of even date herewith (the "Assignment Agreement"),
entered into between BCC and Assignee, BCC elected to assign to Assignee, and
Assignee agreed to accept, all of BCC's right, title and interest in and to the
Asset Purchase Agreement, including Assignor's rights and obligations under the
Employment Agreement, on and as of the Effective Date; and
WHEREAS, as confirmation of the assignment to Assignee of
Assignor's rights and obligations under the Employment Agreement, Assignor and
Assignee have agreed to execute and deliver this Assignment.
NOW, THEREFORE, in consideration of these premises, and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, intending to be legally bound, the parties hereto agree as
follows:
1. Recitals Incorporated.
The foregoing recitals constitute a material part of this
Assignment, and the same are expressly incorporated herein by reference.
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2. Assignment and Assumption
2.1 Assignment. Assignor hereby assigns, transfers and sets
over unto to Assignee, and Assignee hereby accepts from Assignor, all of
Assignor's right, title and interest in and to the Employment Agreement, to
have and to hold the same unto Assignee, its successors and assigns, from and
after the Effective Date.
2.2 Assumption. Assignor hereby delegates to Assignee, and
Assignee hereby assumes from Assignor, all of Assignor's obligations arising
under or in connection with the Employment Agreement from and after the
Effective Date, and Assignee further agrees to assume and perform each of the
terms, conditions and covenants of the Employment Agreement to be performed on
the part of assignor from and after the Effective Date, including, without
limitation, Assignor's obligation to pay Employee's compensation thereunder;
provided, however, notwithstanding the foregoing, Assignor shall retain, and
shall remain solely liable for, all obligations arising from any breach or
failure to perform by Assignor under the Employment Agreement prior to the
Effective Date, regardless of the date on which any claim is made.
3. Representations and Warranties of Assignor.
Assignor represents and warrants to and for the benefit of
Assignee, as follows:
3.1 Power and Authority. Assignor has all requisite power and
authority to execute, deliver and perform this Assignment and to assign,
transfer and delegate to Assignee all of Assignor's right title and interest
to, and obligations arising under or in connection with, the Employment
Agreement.
3.2 Authorization. The execution and delivery of this
Assignment have been duly authorized by all necessary action of Assignor and do
not require any additional consent or approval of any person or entity and do
not and will not violate any provision of the certificate of incorporation or
bylaws of Assignor.
3.3 Exclusive Property. All of Assignor's right, title, and
interest assigned to Assignee by Assignor hereunder are the exclusive property
of Assignor, and Assignor has not granted to any other person or entity any
rights or interests with respect thereto.
3.4 Employment Agreement.
3.4.1 Enforceability; Modification. The Employment
Agreement is in full force and effect, is valid and enforceable and has not
been altered, modified or amended in any manner whatsoever.
3.4.2 Performance. Assignor has performed and complied in
all material respects with all of the terms, conditions and covenants required
to be performed or complied with by Assignor under the Employment Agreement
prior to the Effective Date.
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3.4.3 Default. Neither Assignor nor, to the best of
Assignor's knowledge, Employee, is in default under any of the terms,
conditions or covenants of the Employment Agreement.
3.4.4 Termination by Assignor. There is no action or
other matter pending or threatened that would entitle Assignor to terminate the
Employment Agreement (either with or without cause) and Assignor has not waived
any such right.
3.4.5 Termination by Employee. To the best of Assignor's
knowledge, there is no action or other matter pending or threatened that would
entitle Employee to terminate the Employment Agreement (either with or without
cause) and, to the best of Assignor's knowledge, Employee has not waived any
such right.
3.4.6 Indemnification by Employee. There is no action or
other matter pending or threatened by Assignor against Employee that would
entitle Assignor to seek indemnification from Employee under the terms,
conditions and covenants of Section 11(a) of the Employment Agreement, and
Assignor has not waived any such right.
3.4.7 Indemnification by Assignor. There is no action or
other matter pending or, to the best of Assignor's knowledge, threatened,
against Assignor that would entitle Employee to seek indemnification from
Assignor under the terms, conditions and covenants of Section 11(b) of the
Employment Agreement and, to the best of Assignor's knowledge, Employee has not
waived any such right.
4. Representation and Warranties.
Assignee represents and warrants to and for the benefit of
Assignor, as follows:
4.1 Power and Authority. Assignee has all requisite power and
authority to execute, deliver and perform this Assignment and to accept and
assume the assignment, transfer and delegation by Assignor of all of its right,
title and interest to, and obligations arising under or in connection with, the
Employment Agreement.
4.2 Authorization. The execution and delivery of this
Assignment have been duly authorized by all necessary action of Assignee and do
not require any additional consent or approval of any person or entity and do
not and will not violate any provision of the certificate of incorporation or
bylaws of Assignee.
4.3 Performance. Assignee covenants and agrees to perform and
comply in all material respects with all of the terms, conditions and covenants
required to be performed or complied with by Assignor under the Employment
Agreement from and after Effective Date.
5. Release of Guaranty. In consideration of Assignee's acceptance of
the assignment and assumption hereunder, on and as of the Effective Date, the
terms, conditions and covenants of Section 13(d) of the Employment Agreement
shall become null and void and of no further
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force and effect, and BCC, its successors and assigns, shall be released from
any and all obligations thereunder.
6. Consent by Operator. Operator hereby consents to the
assignment and assumption contemplated hereunder.
7. Indemnification.
7.1 By Assignor. Notwithstanding this assignment and
assumption, Assignor agrees at all times from and after the Effective Date, to
defend, indemnify and hold harmless Assignee from any losses, damages, expenses
or deficiencies relating to or arising out of any breach or nonperformance of
the Employment Agreement by Assignor during the time period prior to the
Effective Date.
7.2 By Assignee. Notwithstanding this assignment and
assumption, Assignee agrees at all times from and after the Effective Date, to
defend, indemnify and hold harmless Assignor from any losses, damages, expenses
or deficiencies relating to or arising out of any breach or nonperformance of
the Employment Agreement by Assignee during the time period from and after the
Effective Date.
8. Miscellaneous.
8.1 Successors and Assigns. This Assignment shall be binding
on Assignor and Assignee, together with their respective successors and
assigns.
8.2 Headings. The headings and captions herein are for the
convenience of reference only and shall not be used in construing or
interpreting this Assignment or to otherwise limit or affect the meaning of any
provision hereof.
8.3 Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of Missouri, including its
statutes of limitation but without regard to its conflict of laws rules.
8.4 Counterparts. This Agreement may be executed in several
counterparts or with counterpart signature pages, each of which shall be deemed
an original, but such counterparts shall together constitute but one and the
same Agreement.
[THIS PORTION OF THE PAGE INTENTIONALLY LEFT BLANK]
[THE NEXT FOLLOWING PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, this Assignment has been executed by the
parties hereto as of the date and year first above written.
ATTEST: ASSIGNOR:
XXXXXX HEALTH CARE GROUP,
a Missouri corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
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Xxxxxx X. Xxxxxx, Secretary Xxxx Xxxxxx, President
ATTEST: ASSIGNEE:
BCC MANAGEMENT COMPANY AT
MISSOURI, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxxx
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Xxxxx X. Xxxxxx, Secretary Xxxx Xxxxxxxxx, President
WITNESS: EMPLOYEE:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxx Xxxxxx
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Xxxxxxx X. Xxxxx Xxxx Xxxxxx
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