INDEPENDENT CONTRACTOR AGREEMENT
Exhibit 10.2
THIS INDEPENDENT CONTRACTOR AGREEMENT
is made and entered into on the 5th day of
September 2008 by and between Insituform Technologies, Inc., a Delaware
corporation (“Insituform”), and Xxxxxx X.
Xxxxxxx (“Contractor”).
R
E C I T A L
Insituform desires to retain Contractor
as an independent contractor to render consulting services, and Contractor
desires to be so retained pursuant to the terms and conditions of this
Agreement.
A
G R E E M E N T S
In consideration of the recital and
mutual promises set forth in this Agreement, the parties agree as
follows:
1. Services. Contractor
shall from time to time perform such services for Insituform as shall be
requested by the Chief Executive Officer of Insituform. Contractor
shall have control of his work and the manner in which it is performed; provided, however, Contractor
shall, from time to time, provide oral and/or written reports to the Chief
Executive Officer of Insituform regarding the results of Contractor’s services
as Insituform’s Chief Executive Officer shall reasonably
request. Contractor and Insituform agree that the level of
anticipated services as an independent contractor will not exceed twenty percent
(20%) of the average level of bona fide services performed by Contractor over
the 36-month period immediately preceding the effective date of this
Agreement. Unless previously authorized in writing by Insituform,
Contractor shall have no authority to bind Insituform to any contract or
agreement.
2. Term. The
term of this Agreement shall be from September 5, 2008 through December 31, 2008
(the “Term”).
3. Compensation and
Reimbursement of Expenses.
(a) Insituform
shall compensate Contractor for his services hereunder at a monthly rate
of Thirty Thousand Dollars and no/100 ($30,000) commencing in September
2008; provided,
however, for any hours during any month during the Term in excess
of one hundred twenty-five (125) hours, Insituform shall compensate
Contractor for such additional hours at the rate of Two Hundred Forty
Dollars and no/100 Dollars ($240.00) per hour, excluding travel
time. The fixed monthly payment shall be paid by Contractor on or
before the 15th day of
the following month. Any compensation in excess of the fixed monthly
payment shall be payable by Insituform promptly after receipt of an invoice from
Contractor itemizing with reasonable detail the work performed and the date(s)
on which the work was performed. The parties may also agree to such other
compensation arrangements as may be mutually agreed upon in
writing.
(b) Telephone,
travel (coach), meals, hotels and other pre-authorized out-of-pocket expenses
incurred by Contractor in connection with the performance of services hereunder
shall be reimbursed to Contractor subject to substantiation in accordance with
Insituform’s reimbursement policies.
4. Independent Contractor
Relationship. The relationship of Contractor to Insituform is
that of an independent contractor. Nothing contained herein or
otherwise shall be construed in such manner as to create the relationship of
employer/employee between Contractor and Insituform. In acknowledging
that he is an independent contractor, Contractor agrees that he shall not be
entitled to participate in, and specifically disclaims and waives any rights to
any benefit to, any benefits or benefit programs offered by Insituform, to any
employee or group of employees, including, but not limited to, any health
insurance, disability insurance, pension, profit sharing, life insurance,
vacation, incentive compensation or other benefits offered to any employee or
group of employees.
5. Payment of
Taxes. Contractor acknowledges that all payments made
hereunder shall have been earned by reason of services provided by Contractor
and, accordingly, Contractor agrees to report such payments as ordinary income
on his United States and state income tax returns. Insituform and
Contractor further acknowledge and agree that Insituform shall not be required
to withhold, nor shall Insituform withhold, any federal or state income, social
security, unemployment or other taxes or similar payments from the amounts
payable to Contractor hereunder. As an independent contractor,
Contractor shall be fully and solely responsible for all taxes (including, but
not limited to, federal, state and local income taxes, FICA, FUTA, workers’
compensation and unemployment insurance taxes) related to the performance of his
services pursuant to this Agreement, and shall timely make all appropriate
governmental filings and timely pay all taxes, fees and charges, consistent with
his status as an independent contractor. Contractor shall defend,
indemnify and hold harmless Insituform and its affiliates and their respective
officers, directors, shareholders, employees and agents from all actions,
claims, damages, demands, losses, liabilities, causes of action, costs and
expenses, including attorneys’ fees, of any kind arising out of or related to
Contractor’s failure to make timely filings or timely payments of any amounts
due to such governmental agencies or units.
6. Confidential
Information. Contractor agrees that he will not disclose any
Confidential Information (as hereinafter defined) to any third party or use any
Confidential Information for any purpose other than the performance of his
responsibilities under this Agreement. For purposes of this
Agreement, “Confidential
Information” shall mean any and all information concerning the business
and operations of Insituform and/or any subsidiary or affiliate of Insituform
which is disclosed or made known to Contractor in connection with the services
to be performed by Contractor hereunder including, without limitation, any
information (whether written or oral) made known to Contractor: (a)
from any inspection, examination or review of the books, records, documents or
files made available to Contractor by Insituform and/or any subsidiary or
affiliate of Insituform, (b) from communications with any officer, employee,
agent or representative of Insituform and/or any subsidiary or affiliate of
Insituform or (c) through disclosure or discovery in any other
manner. Notwithstanding the foregoing, Confidential Information shall
not include information which was or becomes publicly known without disclosure
by Contractor, or which was or is acquired by Contractor from a third party who
is not in breach of any confidentiality agreement with
Insituform. During the term of this Agreement Insituform may provide
Contractor an Insituform-owned Blackberry and/or computer. Contractor
agrees to take reasonable care to protect such equipment and to maintain the
confidentiality of all information that resides and/or may be transmitted to or
by such equipment. Contractor agrees to immediately return such
equipment to Contractor, upon Contractor’s request.
7. Possession of
Property. Contractor acknowledges Insituform’s and/or its
subsidiaries’ and/or affiliates’ (collectively, the “Insituform Group”) exclusive
right to ownership, possession and title to all papers, documents, tapes,
drawings, notebooks, formulas, customer lists, software, hardware, trademarks,
trade names, service marks, processes, data, intellectual property, or other
records, information or products prepared by Contractor during his engagement
(past, present and future) with Insituform or provided by Insituform and/or any
other member of the Insituform Group, or which otherwise come into Contractor’s
possession by reason of his engagement with Insituform. Contractor
agrees not to make or permit to be made, except in pursuit of Contractor’s
duties hereunder, any copies of such items. Contractor further agrees
to deliver to Insituform upon request all such items in Contractor’s possession
and without request to immediately deliver such items upon the termination,
voluntarily or involuntarily, of Contractor’s engagement.
8. Inventions. The
term “Inventions” means
all ideas, inventions and discoveries, whether patentable, copyrightable or not,
made or conceived by Contractor in the course of his engagement by Insituform,
either solely or jointly with others, during the term of his engagement (past,
present or future) with any member of the Insituform Group, including, but not
limited to, software, algorithms, designs, devices, processes, methods,
formulae, techniques, data storage systems, networks, servers and any
improvements to the foregoing. Contractor agrees to promptly disclose
all Inventions to Insituform. Contractor shall inform Insituform
promptly and fully of such Inventions by a written report, setting forth in
detail the structures, procedures and methodology employed and the results
achieved. Contractor also shall submit a report upon completion of
any study or research project undertaken on behalf of Insituform or any other
member of the Insituform Group, whether or not in the Contractor’s opinion a
given study or project has resulted in an Invention. Contractor hereby assigns
and agrees to assign to Insituform all of his rights to such Inventions and to
all proprietary rights therein, based thereon or related thereto, including, but
not limited to, applications for United States and foreign letters patent and
resulting letters patent. Upon the request of Insituform and at
Insituform’s expense, Contractor shall execute such documents and provide such
assistance as may be deemed necessary by Insituform and to apply for, defend or
enforce any United States and foreign letters patent based on or related to such
Inventions. Contractor agrees to execute all documents reasonably
requested by Insituform to assist Insituform in perfecting or protecting any or
all of its rights in the Inventions. Contractor acknowledges that all
copyrightable Inventions are “works made for hire” and consequently that
Insituform owns all copyrights thereto, including, but not limited to, 17 U.S.C.
Sections 101 and 210. Insituform and its successors and assigns shall
have the sole and exclusive right to register the copyright(s) in all such work
in its name as the owner and author of such work and shall have the exclusive
rights conveyed under 17 U.S.C. Sections 106 and 106A, including, but not
limited to, the right to make all uses of the works in which attribution or
integrity rights may be implicated. Additionally, without in any way
limiting the foregoing, Contractor hereby assigns, transfers and conveys to
Insituform, and its successors and assigns, all right, title or interest that
Contractor may now have, or may acquire in the future, to the work including,
but not limited to, all ownership, patent (United States and foreign letters
patent), trade secret, trade names and trademarks, copyright moral, attribution
and/or integrity rights. Contractor hereby expressly and forever
waives any and all rights that Contractor may have arising under 17 U.S.C.
Section 106A, and any rights arising under any federal, state, territorial or
foreign laws that convey rights which are similar in nature to those conveyed
under 17 U.S.C. Section 106A. Notwithstanding any provision of the
Copyright Act, any and all copyrightable works constituting Inventions or
prepared either in whole or in part by Contractor in connection with his
engagement are, shall be, or shall become, owned by Insituform.
9. Specific
Enforcement. Contractor agrees that any violation or breach by
Contractor and/or his Representatives of any provision of this Agreement would
cause immediate and irreparable harm to the Insituform Group, the exact amount
of which will be impossible to ascertain, and for that reason further agrees
that the Insituform Group shall be entitled, as a matter of right, to an
injunction out of the appropriate court of competent jurisdiction, restraining
any further violation or breach of this Agreement by Contractor, either directly
or indirectly, such right to an injunction being cumulative and in addition to
whatever remedies the Insituform Group may have under applicable law and/or this
Agreement. Insituform also shall have the right to require Contractor
to account for and pay over to Insituform all compensation, profits, monies,
accruals, increments, or other benefits derived or received by him as the result
of any transactions constituting a breach of this
Agreement. Insituform may set off any amounts due it against any
compensation owed to Contractor. The remedies of the Insituform Group
under this Agreement are not exclusive, and shall not prejudice any other rights
that the Insituform Group otherwise might have. In the event of a breach of this
Agreement, Contractor agrees to pay all costs of enforcement and collection of
any and all remedies and damages, including reasonable attorneys’
fees.
10. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Missouri, without regards to
its conflict of laws principles. The parties hereto hereby agree that
all claims, actions, suits and proceedings between the parties hereto relating
to this Agreement shall be filed, tried and litigated only in the Circuit Court
of Saint Louis County, Missouri or the United States District Court for the
Eastern District of Missouri. In connection with the foregoing, the
parties hereto consent to the jurisdiction and venue of such courts and
expressly waive any claims or defenses of lack of personal jurisdiction of or
proper venue by such courts.
11. Waiver. The
failure of any party to insist, in any one or more instances, upon performance
of any of the terms or conditions of this Agreement, shall not be construed as a
waiver or relinquishment of any rights granted hereunder for the future
performance of any such term, covenant or condition.
12. Amendment. This
Agreement may only be amended by an agreement in writing signed by the party
against whom enforcement is sought.
13. Binding
Effect. This Agreement shall be binding on the parties and
their respective heirs, successors and assigns. Contractor shall not
assign this Agreement without the prior written consent of
Insituform.
14. Reasonableness of
Covenants. The parties agree that the duration and scope of
the restrictions imposed under Sections 6 through 8 hereof (the “Covenants”) are fair and
reasonable and are reasonably required for the protection of Insituform and/or
its subsidiaries and/or affiliates. Should any court of competent
jurisdiction determine that any of the Covenants, or any part thereof, are
unenforceable because of the duration or scope of such provision, the parties
hereto agree that such court shall have the power to substitute, to the fullest
extent enforceable, provisions similar hereto or such other provisions as will
enable Insituform and/or its subsidiaries and/or affiliates, to the fullest
extent practicable, to enjoy the benefits intended to be agreed upon by and
under Sections 6, 7 and 8 hereof.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement on the day, month and year first above
written.
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INSITUFORM
TECHNOLOGIES, INC.
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By: /s/ J. Xxxxxx
Xxxxxxx
Name: J.
Xxxxxx Xxxxxxx
Title: President
and Chief Executive Officer
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CONTRACTOR
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/s/ Xxxxxx X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx
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