EXHIBIT 10.81
AGREEMENT
THIS AGREEMENT dated as of this 31st day of May, 2002, by and among
BCP Management, Inc. ("BCPM"), Xxxxxx Chemicals and Plastics Operating Limited
Partnership ("OLP") and Xxxxxxxx X. Xxxxx, 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-Manufacturing, 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 of decommissioning and idling
activities at Geismar, Louisiana, including the preparation of
reports and accounting reconciliations, assisting in the
accounts payable and other accounting functions and return of
railcars.
. Supervising environmental compliance activities, including
meeting with outside agencies, attorneys and consultants
retained by the OLP and BCPM, and other parties in negotiating
settlements or otherwise providing for environmental compliance.
. Participation with, and assistance to counsel for the OLP and
BCPM, and other parties, in the negotiations or other
arrangements for the disposition and monetization of all OLP
assets, including joint ventures and other tangible and
intangible assets.
. 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.
. Reviewing and commenting, as requested, on work performed by the
OLP's financial advisors.
. Such other duties, consistent with the position of Vice
President-Manufacturing, 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 $850.00 per diem,
for each day worked during a calendar month, beginning July 1, 2002, and a flat
rate of $21,000.00 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
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 17 business days
August 15 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 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.
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/ Xxxxxxxx X. Xxxxx, Xx.
-------------------------------------
Xxxxxxxx X. Xxxxx, 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 Xxxxxxxx X.
Xxxxx, 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- Manufacturing, 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 of decommissioning and idling
activities at Geismar, Louisiana, including the preparation of
reports and accounting reconciliations, assisting in the
accounts payable and other accounting functions and return of
railcars.
. Supervising environmental compliance activities, including
meeting with outside agencies, attorneys and consultants
retained by the OLP and BCPM,
and other parties in negotiating settlements or otherwise
providing for environmental compliance, and assistance.
. Participation with, and assistance to counsel for the OLP and
BCPM, and other parties, in the negotiations or other
arrangements for the disposition and monetization of OLP assets,
including joint ventures and other tangible and intangible
assets.
. 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.
. Reviewing and commenting, as requested, on work performed by the
OLP's financial advisors, and financial personnel.
. Such other duties, consistent with the position of Vice
President-Manufacturing, 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 $200.00 per hour,
for each hour 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 beginning with October, 2002, listing the hours for which independent
contractor services were rendered, and the amount due resulting from such
provision of services. Reasonable out of pocket expenses shall be separately
invoiced by
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Independent Contractor on a periodic basis, and 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 as agreed, unless earlier terminated. 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
time than 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 160 hours
November 80 hours
December 75 hours
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
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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.
BCP MANAGEMENT, INC.
----------------------
Xxxxxxxx X. Xxxxx, Xx.
By
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Its
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XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP, By BCP
Management Inc., its General Partner
By
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Its
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