CONSULTING AGREEMENT
Exhibit 99.2
THIS CONSULTING (the “Agreement”), is made and entered into this 1st day of
September, 2007, by and between X. XXXXXXXX, INC. a Delaware corporation (the “Corporation”) and
Xxxx X. Xxxxx (the “Consultant”).
RECITALS:
A. The Corporation desires the Consultant to provide certain services as an independent
contractor consultant and the Consultant desires to provide such services to Corporation as an
independent contractor consultant, pursuant to the terms and conditions of this Agreement.
B. The Corporation and the Consultant do not intend to be bound to any employment contract,
express or implied, and the Corporation and the Consultant hereby agree that the Consultant is not
and shall not for any purposes be considered an employee of the Corporation.
C. The Corporation and the Consultant intend to be bound by the terms of this Agreement, and
further intend that this Agreement shall encompass all terms and conditions of their relationship.
In consideration of the foregoing, the mutual covenants contained herein, and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
Section 1. Consideration
Except as otherwise provided in this Agreement, this Agreement shall become effective on
September 1, 2007, and shall remain in effect until August 31, 2008, unless the independent
contractor relationship is terminated in accordance herewith.
The parties also agree that this Agreement may be immediately terminated under the following
circumstances:
| (a) | by mutual agreement of the parties; or | ||
| (b) | by the Corporation “for cause”, which shall constitute conduct of Consultant that is prejudicial to the Corporation, including, but not limited to, disclosure of Confidential Information (as hereinafter defined), unprofessional conduct, neglect, inefficiency, or incompetency and/or failure to perform the obligations of this Agreement in a professional and timely manner, provided that such conduct shall be considered grounds to terminate the Agreement only if Consultant fails to cure any “for cause” conduct within 30 days after delivery to Consultant of a notice from the Corporation specifying such “for cause” conduct. |
In the event of termination of this Agreement by either party, irrespective of the basis for
such termination, the Consultant shall be entitled to receive his Fee up through the date of
termination. The parties understand and agree that the Consultant shall not be entitled to further
payment or benefits of any kind, and the Corporation shall have no further obligation or liability
to the Consultant in any respect.
Section 2. Services
Consultant shall provide services under this Agreement as set forth in Exhibit A to this
Agreement, attached hereto and incorporated herein (the “Services”).
The Corporation agrees not to exert or retain control of the terms, mode and manner of the
Services to be performed by the Consultant. Rather, it is the intent of the Corporation and the
Consultant that the Consultant shall have the right to control all terms and conditions of the work
the Consultant is performing for the Corporation, except as set forth in this Agreement. It is
understood that Consultant’s Services will be rendered at the location of Consultant’s choosing. In
the performance of the Services, the hours of work on any given day will be entirely within the
Consultant’s control. The Corporation will only require that Consultant shall be responsible for
completing tasks within time frames agreed upon by Consultant and the Corporation. Consultant
further agrees that all equipment used in the performance of the Services will be owned and
maintained by the Consultant. Consultant agrees to be available for meetings with Corporation
personnel as may be reasonably necessary.
Section 3. Compensation
Consultant will be compensated for the Services rendered hereunder through a monthly
consulting fee in the amount of Fifteen Thousand Seven Hundred Fifty Dollars ($15,750.00) (the
“Fee”). Consultant shall be paid the Fee in accordance with the Corporation’s policies, which
payments shall be not less than monthly. Additionally, since the parties have an independent
contractor relationship and not an employer-employee relationship, the Consultant understands and
agrees that the Corporation will reimburse the Consultant for any expenses associated with travel
for company business, but will not pay, compensate or reimburse Consultant for perquisites or
benefits that typically arise from an employment relationship, including, but not limited to,
health benefits, vacation pay, sick pay, disability insurance, life insurance, retirement benefits,
cellular phone/pager reimbursement, etc. Consultant’s sole and exclusive compensation for his
provision of the Services shall be the Fee.
Section 4. Independent Contractor
The parties intend that this Agreement creates an independent contractor relationship between
them. The Corporation is interested only in the results to be achieved from the relationship with
the Consultant under this Agreement, and the manner and means of conducting or controlling
Consultant’s work will be solely and exclusively his prerogative. Consultant is not to be
considered the Corporation’s employee for any purpose, including social security or any other taxes
or withholdings. It is further agreed that the provisions of any workers’ compensation law shall not apply, and the Consultant shall not be eligible to receive workers’ compensation
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benefits. The Corporation and the Consultant further agree that at the termination of this
Agreement, the Consultant shall not be eligible for benefits under any unemployment compensation
law. No employer-employee relationship is created under this Agreement.
Consultant understands and agrees that since he is not an employee, Consultant is not eligible
for and will not participate in any pension, health, or other fringe benefit plans of the
Corporation. The Corporation shall not deduct from amounts paid to Consultant pursuant to this
Agreement any federal, state, or local withholding taxes of any kind or nature. The Consultant
acknowledges that as an independent contractor, the Consultant shall be responsible for the payment
of any and all taxes or assessments owed upon the Fee paid by the Corporation to the Consultant for
the Services provided under this Agreement. The Consultant shall, upon request by the Corporation,
provide information to the satisfaction of the Corporation that the Consultant has timely paid all
income taxes resulting from payments of the Fee pursuant to this Agreement and that the Consultant
has lawfully paid and withheld self-employment taxes, including but not limited to social security
and Medicare.
Further, Consultant is not authorized to bind the Corporation or make any representations on
the Corporation’s behalf, except such representations concerning the Services as may be expressly
authorized from time to time by the Corporation.
Section 5. Work Product of Corporation
In consideration hereof, Consultant transfers to the Corporation any and all work product
related to the Corporation that he develops or improves during the course of this engagement.
Consultant covenants that all ideas, inventions, product developments or improvements, works of
authorship and patent information, and all rights acquired thereof which he creates, conceives, or
develops, either jointly or severally with others, which are based on the business of the
Corporation or based on the Services provided to the Corporation, shall be the Corporation’s
property and Consultant hereby assigns all such ownership and rights therein to the Corporation.
The parties expressly understand and agree that this is a “work for hire” arrangement, and
Consultant agrees and accepts that he will have no interest in know-how, copyright, trade-marks or
trade names, notwithstanding the fact that the Consultant may have created or contributed to the
creation of the same.
Section 6. Nondisclosure and Non-appropriation of Information
In consideration hereof, Consultant agrees to abide by the terms and conditions set out in the
Separation Agreement between Corporation and Consultant, dated August 31, 2007 (“Separation
Agreement”), which restrict the disclosure and appropriation of business information.
Section 7. Restrictive Covenants
Consultant acknowledges and agrees that as a condition of engagement pursuant to this
Agreement that Consultant will abide by the terms and conditions contained in the Separation
Agreement which restrict the Consultant from engaging in competitive conduct.
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Section 8. Injunction
The parties acknowledge and agree, due to the subject matter of this Agreement, that money
damages will be an inadequate remedy for a breach by Consultant of any of the obligations
hereunder. Consequently, if Consultant breaches or threatens to breach any of the obligations
under this Agreement, Consultant agrees that the Corporation shall have the right, in addition to
any other rights or remedies available to it at law or in equity, to obtain equitable relief,
including, without limitation, injunctive relief and specific performance, in the event of any
breach or threatened breach. Further, the parties hereto agree and declare that it may be
impossible to measure in monetary terms the damages that may accrue to the Corporation by reason of
Consultant’s violation of this Agreement. Therefore, in the event that the Corporation, or any
successor in interest thereto, shall institute an action or proceeding to enforce the provisions of
this Agreement, each party or other person against whom such action or proceeding is brought shall
and hereby does, in advance, waive the claim or defense that there is adequate remedy at law. In
the event such injunctive relief is warranted and obtained by the Corporation, Consultant agrees to
pay all costs of said action, including reasonable attorney fees. Each of the parties hereto
acknowledges each to the other that the covenants contained in this Agreement are fair, reasonable
and just, under the circumstances, and are not a penalty.
Section 9. Severability
If any one or more of the provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under applicable law, the validity, legality and enforceability of the
remaining provisions contained herein shall not, in any way, be ineffective or impaired thereby. It
is the intention of the Corporation and the Consultant that if any provision of this Agreement is
susceptible of two or more constructions, one of which would render the provision unenforceable and
the other or others of which would render the provision enforceable, then the provision shall have
the meaning which renders it enforceable.
Section 10. Governing Law
This Agreement shall be governed by the substantive laws of the State of Ohio without giving
effect to any laws or rules relating to conflicts of laws that would cause application of the laws
of any jurisdiction other than the State of Ohio.
Section 11. Construction
Whenever used in this Agreement, the singular word shall include the plural, the plural the
singular, and the use of any gender shall be applicable to all genders.
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Section 12. Entire Agreement and Modification
This Agreement constitutes the entire agreement between the parties hereto in respect of its
subject matter and supersedes all prior and contemporaneous agreements between the parties hereto
in connection with the subject matter of this Agreement. No officer, employee or other servant or
agent of the Corporation or of the Consultant is authorized to make any representation, warranty or
other promise not contained in this Agreement. No change, termination or attempted waiver of any
of the provisions of this Agreement shall be binding upon the Corporation or the Consultant unless
in writing and signed by the party to be charged.
Section 13. Waiver
Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof
shall not be deemed a waiver of any such term, covenant or condition, nor shall any such failure at
any one time or times be deemed a waiver or relinquishment at any other time or times of any right
under the terms, covenants or conditions hereof.
Section 14. Assignment
This Agreement shall inure to the benefit of and be binding upon the Corporation and its
successors and assigns, including but not limited to any of its affiliates or subsidiaries. Rights
and obligations of the Consultant hereunder may not be delegated, assigned or otherwise
transferred.
Section 15. Survival
The parties understand and agree that upon termination of this Agreement for any reason,
including “for cause” termination, and, subject to the terms therein, the obligations under
paragraphs 5, 6, 7 and 8 shall survive any termination of this Agreement.
[signature page immediately follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of this 20th day of August,
2007.
| X. XXXXXXXX, INC. |
||||
| By: | Xxxx Xxxxxx | |||
| Its: Executive Vice President — North America | ||||
| CONSULTANT: |
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| /s/ Xxxx X. Xxxxx | ||||
| Print name: Xxxx X. Xxxxx | ||||
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Exhibit A
Description of Services
X. Xxxxxxxx, Inc.
0000 Xxxx Xxxxxx
Xxxxx, Xxxx 00000
0000 Xxxx Xxxxxx
Xxxxx, Xxxx 00000
Agreement for Xxxx Xxxxx Support Commitment — August 31, 2007:
During first 2 months while X. Xxxxxxxx completes the search and orientation of new Research and
Development Manager, Xxxx will support X. Xxxxxxxx by being available 8 to 12 days per month.
The remaining days will be spread across the remaining 10 months in support of special projects as
designated by Engineered Compounds General Manager.
Those projects are expected to be related to support of processes like, ISIS for project
management, system for development to plant scale up process for developing R&D metrics and
tracking.
Xxx Xxxxxx
Engineered Compounds General Manager
Engineered Compounds General Manager
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