EXHIBIT 10.39
BUSINESS ADVISORY SERVICES AGREEMENT
THIS BUSINESS ADVISORY SERVICES AGREEMENT (this "Agreement") is entered
into as of __________ ___, 2006 (the "Effective Date") by and between
______________(the "Advisor") and PERFORMANCE HEALTH TECHNOLOGIES, INC., a
Delaware corporation (the "Company").
WHEREAS, the Company wishes to engage the Advisor, on a nonexclusive
basis, as a member of the Company's Advisory Board and as a business development
consultant, and the Advisor wishes to provide such services to the Company, all
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and intending to be legally bound thereby, the Company
and the Advisor hereby agree as follows:
1. SPECIFIC ADVISORY SERVICES. The Company hereby engages the Advisor
on a non-exclusive basis during the term of this Agreement set forth below, to
provide the following services to the Company:
A. Appointing the Advisor to serve as a member of the
Company's Advisory Board;
B. Assisting the Company, when and if requested by
the Company, in effectuating introductions to
companies or individuals in the Company's industry;
C. Assisting the Company in any meetings with third
parties that the Company would like to meet with for
purposes of business development; and
D. Rendering such other financial or business
advisory services as may from time to time be agreed
upon by the Advisor and the Company.
2. INDEPENDENT CONTRACTOR STATUS. For purposes of this Agreement and
all services to be provided hereunder, the Advisor shall not be considered a
director, officer, partner, co-venturer, employee or similar agent of the
Company, but shall remain in all respects an independent contractor.
3. OBLIGATIONS OF THE COMPANY. The Company agrees to use its best
efforts to provide all documents, materials and other information reasonably
requested by the Advisor in order for it to perform its due diligence and
advisory services under this Agreement on a timely basis.
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4. COMPENSATION.
(A) NON-QUALIFIED STOCK OPTIONS. In consideration for the
services to be rendered by the Advisor to the Company pursuant to this
Agreement, the Company shall issue to the Advisor a non-qualified stock option
(the "Options") to purchase up to 100,000 shares of the Company's restricted
common stock. One-third of the Options shall immediately vest upon the date of
the Option grant; one-third of the Options shall vest on the first anniversary
of the date of the Option grant; and the remaining one-third of the Options
shall vest on the second anniversary of the Option grant. The Options shall be
exercisable for a period of ten years, shall have an exercise price equal to
_____ per share and shall contain such other standard terms and conditions as
other non-qualified stock options issued by the Company pursuant to the
Company's stock incentive plan currently in effect. The Options shall be granted
on the date of approval by the Company's Board of Directors.
(B) EXPENSE REIMBURSEMENT. The Company agrees to reimburse the
Advisor, within thirty (30) days of receipt of an invoice thereof, for
reasonable out-of-pocket expenses incurred by the Advisor in connection with
this Agreement, whether or not any business transaction as to which such expense
relates is successfully completed. Notwithstanding the foregoing, the Advisor is
required to obtain the prior consent of the Company for out-of-pocket expenses
to be eligible for reimbursement by the Company under this Agreement.
(C) PAYMENTS. All monetary compensation and reimbursements
payable pursuant to this Section 4 shall be due and payable to the Advisor, in
cash or by check in U.S. dollars, or in such other form and substance as may be
acceptable to the Advisor.
5. TERM; TERMINATION. This Agreement shall remain in full force and
effect for a period of twelve (12) months from the date hereof. After six (6)
months of the term, the Company and the Advisor may review this Agreement, and
make any mutually agreed upon contractual adjustments by written amendment to
this Agreement.
After the initial six (6) months of the term, either the Company or the
Advisor may cancel this Agreement without cause upon thirty (30) days' prior
written notice to the other party. All provisions herein relating to the payment
of fees, expense reimbursement and Confidential Information shall survive any
termination or expiration of this Agreement.
6. NOT A FIDUCIARY. This Agreement does not create, and shall not be
construed as creating, rights enforceable by any person or entity not a party
hereto. The Company acknowledges and agrees that with respect to the services to
be rendered by the Advisor hereunder, the Advisor is not and shall not be
construed as a fiduciary of the Company and shall have no duties or liabilities
to the equity holders or creditors of the Company, any entity owned or managed
by the Company or any other person by virtue of this Agreement and the retention
of the Advisor hereunder. The Company also agrees that the Advisor shall not
have any liability (including without limitation, liability for losses, claims,
damages, obligations, penalties, judgments, awards, liabilities, costs, expenses
or disbursements resulting from any act or omission of the Advisor, whether
direct or indirect, in contract, tort or otherwise) to the Company or to any
person (including, without limitation, equity holders and creditors of the
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Company) claiming through the Company for or in connection with the engagement
of the Advisor, this Agreement and the transactions contemplated hereby, except
for any such liability which may arise, as a result of the gross negligence or
willful misconduct of the Advisor. The Company acknowledges that the Advisor was
induced to enter into this Agreement by, in part, the provisions of this
Section.
7. NO CONFLICT. The Advisor hereby discloses and the Company
acknowledges that the Advisor and its affiliates may provide the services
outlined in the Agreement, including financial and business advisory services,
to others. Nothing contained herein shall limit or restrict the Advisor or such
affiliate in conducting such business with respect to others, or in rendering
any services to others, provided, however, that the confidentiality obligation
of the Advisor as set forth herein shall at all times be upheld.
8. CONFIDENTIAL INFORMATION. The Company will furnish the Advisor with
such information as the Advisor reasonably believes appropriate to perform its
services hereunder (all such information so furnished being the "Information").
The Company recognizes and confirms that the Advisor (a) will use and rely
primarily on the Information and on information available from generally
recognized public sources in performing the services contemplated by this
Agreement without independently verifying the same, (b) does not assume
responsibility for the accuracy or completeness of the Information and such
other information and (c) will not make an appraisal of any assets, collateral
securing assets or liabilities of the Company or potential the Company entity
investors.
Each party shall maintain in confidence and not disclose, disseminate
or otherwise make available to any third party, any non-public information
pertaining to the provisions of this Agreement, or any other information of a
non-public nature obtained as a result of the relationship evidenced by this
Agreement without express written consent of the other party except if
disclosure is required by a regulatory body, or auditors, or in the opinion of
counsel such disclosure is required by law, and then only with as much prior
written notice to the other party as is commercially reasonable under the
circumstances. The covenant in this Section 8 shall survive the termination of
this Agreement.
9. GOVERNING LAW; VENUE. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New Jersey
without giving effect to its conflict of law principles. Any dispute which may
arise between the Company and the Advisor out of or in connection with this
Agreement shall be adjudicated in state or federal court located in New Jersey.
The parties irrevocably waive any objection they now or hereafter may have
respecting the venue of any such action or proceeding brought in such a forum
that such venue is an inconvenient forum. In the event of any litigation between
the parties hereto, the prevailing party shall be entitled to recover all
reasonable court costs and expenses from the other party hereto.
10. NO JURY TRIAL. Each of the Company and the Advisor (and, to the
extent permitted by law, on behalf of their respective equity holders and
creditors) hereby knowingly, voluntarily and irrevocably waives any right they
may have to a trial by jury in respect of any claim based upon, arising out of
or in connection with this Agreement and the transactions contemplated hereby.
Further, each of the Company and the Advisor acknowledges that each party has
been induced to enter this Agreement by, in part, the provisions of this
Section.
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11. ENTIRE AGREEMENT; AMENDMENTS. This Agreement constitutes the entire
agreement between the parties and supersedes any prior agreements, whether
written or oral, between the parties. No modification, extension or change in
this Agreement shall be effective unless it is in writing and signed by both the
Advisor and the Company.
12. SEVERABILITY. In the event that any provision of this Agreement is
found invalid or unenforceable, it shall be enforced to the fullest extent
permissible and the remainder of this Agreement shall remain in full force and
effect.
13. HEADINGS. All section headings of this Agreement are for reference
only and shall not affect the meaning or interpretation of this Agreement.
14. WAIVER. The failure of a party to prosecute its rights with respect
to a default or breach hereunder shall not constitute a waiver of the right to
enforce its rights with respect to the same or any other default or breach.
15. SUCCESSORS. The provisions of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their successors and
permitted assigns. This Agreement may not be assigned except upon the prior
written consent of the other party to this Agreement.
16. NOTICE. Any notice hereunder shall be in writing and delivery
thereof shall be complete if delivered in person, by facsimile or mailed by
overnight priority mail or courier service, including, without limitation,
federal express, or by registered or certified mail, postage prepaid to the
following addresses (unless changed by written notice):
the Advisor: the Company:
____________________ Performance Health Technologies, Inc.
____________________ 000 Xxxxxxxxx Xxxxx
____________________ Xxxxxxx, XX 00000
____________________ Attn: Xxxxxx X. Xxxxxxxx, President
Fax: ________________ Fax: (000) 000-0000
If sent as aforesaid, notices shall be deemed given hereunder, when received if
a business day or otherwise the next following business day, if personally
delivered, or if given by facsimile, as evidenced by confirmation of delivery,
one (1) business day after being sent by overnight priority mail or courier
service, or five (5) days after being sent by certified or registered mail as
aforesaid.
17. DUPLICATE ORIGINALS. This Agreement may be executed in any number
of counterparts and/or by facsimile signature, each of which shall be an
original and all of which shall constitute together but one and the same
document.
18. COOPERATION. The parties agree to cooperate in good faith and take
any and all reasonable actions necessary to carry out the intent and purpose of
this Agreement.
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19. DUE AUTHORIZATION. The Company represents that the execution,
delivery and performance of this Agreement by the Company has been duly
authorized by all necessary action on the part of the Company, and upon
execution and delivery hereof, this Agreement shall constitute a legally valid
and binding obligation of the Company, enforceable against it in accordance with
its terms, except as such enforcement may be limited by bankruptcy, insolvency,
moratorium or other laws affecting the enforcement of creditors' rights
generally. The Advisor represents that the execution, delivery and performance
of this Agreement by the Advisor has been duly authorized by all necessary
action on the part of the Advisor, and upon delivery hereof, this Agreement
shall constitute a legally valid and binding obligation of the Advisor,
enforceable against it in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, moratorium or other laws affecting the
enforcement of creditors' rights generally.
IN WITNESS WHEREOF, the Company and the Advisor have executed this
Agreement on the date first above written.
PERFORMANCE HEALTH
TECHNOLOGIES, INC.
By: ____________________________
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
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