EXHIBIT 10.80
AGREEMENT
THIS AGREEMENT dated as of this 31 day of MAY, 2002, by and among BCP
Management, Inc. ("BCPM"), Xxxxxx Chemicals and Plastics Operating Limited
Partnership ("OLP") and Xxxxxx X. Xxxxxxx, Xx., (the "Independent Contractor").
1. The Independent Contractor is presently an officer of BCPM and shall
continue as such during the term of this Agreement. Recognizing that BCPM and
the OLP, of which BCPM is the general partner, are in bankruptcy and that OLP
has sold or is in the process of idling all of its operations, the parties agree
that BCPM and the OLP require the services of full time executive officers, but
no longer require such services on a full time basis. Accordingly, from and
after the date hereof BCPM retains the services, for itself and the OLP, of the
Independent Contractor as an independent contractor and not as an employee as
that word is defined by applicable federal or state law or regulations, and the
Independent Contractor agrees to provide to BCPM and the OLP his duties as the
continuing Vice President and Chief Financial Officer, on a part time, as needed
basis on the terms set forth in this Agreement. The duties to be performed by
Independent Contractor include the following categories:
. Supervising and directing financial activities, including
maintenance of financial controls, cash management, accounting, tax
compliance, claims reconciliation, and similar activities.
. Supervising and directing asset collection, including accounts
payable, deposit collection and accounting for the disposition and
monetization of other OLP assets, including joint ventures and other
tangible and intangible assets.
. Compliance with reporting obligations, to the bankruptcy court and
others, of BCPM and the OLP.
. Participation with, and assistance to counsel for the OLP and BCPM,
in the preparation, negotiation, and presentation of a plan of
liquidation, in the bankruptcy cases involving the OLP and BCPM, and
in other matters necessary to the prosecution of those bankruptcy
cases.
. As requested, meeting with and communicating with the BCPM Board of
Directors.
. Supervising the development and filing, and (as appropriate)
endorsing the Form 10K for Year 2001 for Xxxxxx Chemicals and
Plastics Limited Partnership.
. Reviewing and commenting, as requested, on work performed by the
OLP's financial advisors.
. Supervising and directing the maintenance of and coordination of
appropriate insurance coverage for the OLP and BCPM.
. Such other duties, consistent with the position of Vice President
and Chief Financial Officer, as may be agreed between Independent
Contractor and the CEO or the Chairman of the Board of Directors of
BCPM.
2. BCPM and the Independent Contractor hereby agree that BCPM shall not
be responsible for the payment of wages to the Independent Contractor. Instead,
the OLP and BCPM agree to pay Independent Contractor $900.00 per diem, for each
day worked during a calendar month, beginning July 1, 2002, and a flat rate of
$18,000.00 for June, 2002, such payments to be made monthly by the 10th day of
the following month. Independent Contractor shall submit an invoice for each
such payment to the OLP and BCPM, for months after June 2002, listing the days
for which independent contractor services were rendered, and the amount due
resulting from such provision of services. Reasonable out of pocket expenses,
including lodging in the Geismar area, shall be added to and included on the
invoice.
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3. The Independent Contractor agrees to provide services under this
Agreement, on the request of BCPM, at least through September 30, 2002. If, in
BCPM's sole discretion, Independent Contractor's services are no longer needed,
it may terminate this Agreement at any time before or after September 30, 2002,
by giving 5 business days' prior notice of such termination to the Independent
Contractor in writing. The Independent Contractor may also terminate this
Agreement at any time after September 30, 2002, by giving 10 business days'
prior notice of such termination to BCPM in writing. BCPM shall not require the
provision of services for more days that set forth opposite the month in the
table below, without the consent of Independent Contractor. After the months set
forth in the table, a continuing schedule shall be agreed between the parties,
if services are to be continued.
July 15 business days
August 10 business days
September 10 business days
4. BCPM shall not exert or retain control of, or the right to control,
the terms, mode and manner of the work to be performed by the Independent
Contractor, it being the mutual intent of BCPM and the Independent Contractor
that the Independent Contractor shall control all terms and conditions of the
work he is performing hereunder.
5. BCPM and the Independent Contractor agree that the relationship
between them is not an employer/employee relationship, and the Independent
Contractor is not to be considered an employee of BCPM at any time under any
circumstance for any purpose. Without limiting the foregoing, (i) the payments
specified in this Agreement constitute the only compensation payable to the
Independent Contractor and are not wages for purposes of any applicable law or
regulation, (ii) BCPM shall issue a Form 1099 to the Independent Contractor at
the end of each calendar year in which payments are made hereunder, (iii) the
Independent Contractor is solely
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responsible for the payment of all taxes owed as a result of the payments to
him hereunder and agrees to pay all such taxes in a timely manner, (iv) the
Independent Contractor assumes full responsibility for all damages and/or
injuries sustained by him resulting from any activity related to services
provided by him hereunder, and (v) the Independent Contractor is not eligible
for benefits of any kind, including without limitation, worker's compensation,
unemployment compensation or any other benefits under the law of any state,
arising out of the performance of services under this Agreement.
6. The parties recognize and agree that payment for such continuing
services of the Independent Contractor shall be made first by the OLP, by paying
directly the invoices of Independent Contractor, and that BCPM shall pay such
invoices, and claim reimbursement from the OLP, only upon the failure of the OLP
to pay according to this Agreement.
7. This Agreement shall be governed by the laws of the State of Ohio.
BCP MANAGEMENT, INC.
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Its PRESIDENT & CEO
-----------------------------------
XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP, by BCP
Management Inc., its General Partner
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Its. PRESIDENT & CEO
----------------------------------
/s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
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CONTINUED AND AMENDED AGREEMENT
THIS AGREEMENT dated as of this 1st day of October, 2002, continues and
amends that Agreement, by and among BCP Management, Inc. ("BCPM"), Xxxxxx
Chemicals and Plastics Operating Limited Partnership ("OLP") and Xxxxxx X.
Xxxxxxx, Xx., (the "Independent Contractor") effective as of June 1, 2002, by
replacing its language in its entirety with the following:
1. The Independent Contractor is presently an officer of BCPM and shall
continue as such during the term of this Agreement. Recognizing that BCPM and
the OLP, of which BCPM is the general partner, are in bankruptcy and that OLP
has sold or is in the process of idling all of its operations, the parties agree
that BCPM and the OLP require the services of executive officers, but no longer
require such services on a full time basis. Accordingly, from and after the date
hereof BCPM retains the services, for itself and the OLP, of the Independent
Contractor as an independent contractor and not as an employee as that word is
defined by applicable federal or state law or regulations, and the Independent
Contractor agrees to provide to BCPM and the OLP his duties as the continuing
Vice President and Chief Financial Officer, on a part time, as needed basis on
the terms set forth in this Agreement. The duties to be performed by Independent
Contractor include the following categories.
. Supervising and directing financial activities, including maintenance
of financial controls, cash management, accounting, tax compliance,
claims reconciliation, and similar activities.
. Supervising and directing asset collection, including accounts
receivable and payable, deposit collection and accounting for the
disposition and monetization of other OLP assets, including joint
ventures and other tangible and intangible assets.
. Compliance with reporting obligations, to the bankruptcy court and
others, of BCPM and the OLP.
. Participation with, and assistance to counsel for the OLP and BCPM, in
the preparation, negotiation, and presentation of a plan of
liquidation, in the bankruptcy cases involving the OLP and BCPM, and
in other matters necessary to the prosecution of those bankruptcy
cases.
. As requested, meeting with and communicating with the BCPM Board of
Directors.
. Supervising the development and filing, and (as appropriate) endorsing
the Form 10K and Form 10Q for Xxxxxx Chemicals and Plastics Limited
Partnership.
. Reviewing and commenting, as requested, on work performed by the OLP's
financial advisors.
. Supervising and directing the maintenance of and coordination of
appropriate insurance coverage for the OLP and BCPM.
. Such other duties, consistent with the position of Vice President and
Chief Financial Officer, as may be agreed between Independent Contractor
and the CEO or the Chairman of the Board of Directors of BCPM.
2. BCPM and the Independent Contractor hereby agree that BCPM shall not
be responsible for the payment of wages to the Independent Contractor. Instead,
the OLP and BCPM agree to pay Independent Contractor $1,600 per day, for each
day worked during a calendar month, beginning October 1, 2002, such payments to
be made monthly by the 10th day of the following month. Independent Contractor
shall submit an invoice for each such payment to the OLP and BCPM, for months
after September, 2002, listing the days for which independent contractor
services were rendered, and the amount due resulting from such provision of
services.
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Reasonable out of pocket expenses, including lodging in the Geismar area, shall
be separately invoiced by independent contractor, on a periodic basis, and
separately paid by the OLP or BCPM, in accordance with the provisions of this
Continued and Amended Agreement.
3. The Independent Contractor agrees to provide services under this
Agreement, on the request of BCPM, at least through December 30, 2002, and
thereafter unless terminated in accordance with the provisions hereof. If, in
BCPM's sole discretion, Independent Contractor's services are no longer needed,
it may terminate this Agreement at any time before or after December 30, 2002,
by giving 5 business days' prior notice of such termination to the Independent
Contractor in writing. The Independent Contractor may also terminate this
Agreement at any time after December 30, 2002, by giving 10 business days' prior
notice of such termination to BCPM in writing. BCPM shall not require the
provision of services for more days that set forth opposite the month in the
table below, without the consent of Independent Contractor. After the months set
forth in the table, a continuing schedule shall be agreed between the parties,
if services are to be continued.
October 20 days
November 17 days
December 17 days
4. BCPM shall not exert or retain control of, or the right to control,
the terms, mode and manner of the work to be performed by the Independent
Contractor, it being the mutual intent of BCPM and the Independent Contractor
that the Independent Contractor shall control all terms and conditions of the
work he is performing hereunder.
5. BCPM and the Independent Contractor agree that the relationship
between them is not an employer/employee relationship, and the Independent
Contractor is not to be considered an employee of BCPM at any time under any
circumstance for any purpose. Without
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limiting the foregoing, (i) the payments specified in this Agreement constitute
the only compensation payable to the Independent Contractor and are not wages
for purposes of any applicable law or regulation, (ii) BCPM shall issue a Form
1099 to the Independent Contractor at the end of each calendar year in which
payments are made hereunder, (iii) the Independent Contractor is solely
responsible for the payment of all taxes owed as a result of the payments to him
hereunder and agrees to pay all such taxes in a timely manner, (iv) the
Independent Contractor assumes full responsibility for all damages and/or
injuries sustained by him resulting from any activity related to services
provided by him hereunder, and (v) the Independent Contractor is not eligible
for benefits of any kind, including without limitation, worker's compensation,
unemployment compensation or any other benefits under the law of any state,
arising out of the performance of services under this contract.
6. The parties recognize and agree that payment for such continuing the
services of the Independent Contractor shall be made first by the OLP, by paying
directly the invoices of Independent Contractor, and that BCPM shall pay such
invoices, and claim reimbursement from the OLP, only upon the failure of the OLP
to pay according to this agreement.
7. This Agreement shall be governed by the laws of the state of Ohio.
/s/ Xxxxxx X. Xxxxxxx Xx. BCP MANAGEMENT, INC.
-------------------------
Xxxxxx X. Xxxxxxx, Xx.
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Its PRESIDENT & CEO
-----------------------------------
XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP, By BCP
Management Inc., its General Partner
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Its. PRESIDENT & CEO
----------------------------------
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