MYRIANT TECHNOLOGIES LLC INDEPENDENT CONTRACTOR AGREEMENT (Individual)
Exhibit 10.37
This Agreement is made by Myriant Technologies LLC (“Company”), a Delaware limited liability
company, and Xxxxxxx Xxxxx (“Contractor”). This Agreement is effective as of July 13, 2010
(“Effective Date”). Company and Contractor agree as follows:
Section 1. Engagement of Services
1.1 Services. Subject to the terms of this Agreement, Contractor will render the services set forth
in Exhibit A (the “Services”).
1.2 Performance of Services. All Services will be rendered to the best of Contractor’s ability and
in a timely, first-class, and professional manner, in compliance with all standards and rules
reasonably established by Company from time to time. Company selected Contractor to perform the
Services based upon Company receiving Contractor’s personal service. Contractor therefore may not
subcontract or otherwise delegate his obligations under this Agreement without Company’s prior
written consent.
1.3 Compliance With Laws. Contractor will comply with all applicable laws, ordinances, rules,
regulations, and other requirements, now or hereafter in effect, of any governmental authority
having jurisdiction, in Contractor’s performance of the Services.
1.4 Modification. Company periodically may make changes to the Services that are within the general
scope of this Agreement, by giving Contractor written notice of such changes. Changes may include,
for example, modifications to the amount of Services, the items to be delivered, and the schedules
for performance. If any change results in an increase or decrease in the parties’ best estimate of
the time or expense required to perform the remaining Services, Company and Contractor will
equitably adjust the schedules and/or the compensation payable for the performance of such Services
to reflect the increase or decrease.
Section 2. Compensation
2.1 Fees and Approved Expenses. Company will pay Contractor for the Services as set forth in
Exhibit A. Contractor will not be reimbursed for any expenses incurred in connection with the
performance of the Services under this Agreement, unless approved in advance and in writing by an
authorized representative of Company or expressly provided for in Exhibit A. Upon termination of
this Agreement for any reason, Contractor will be paid fees and expenses on a proportional basis as
stated in Exhibit A for work performed, up to and including the effective date of the termination,
except that Company will only be liable to pay for liabilities incurred prior to termination.
2.2 Timing. Unless other terms are set forth in Exhibit A, Company will pay Contractor for
Services and will reimburse Contractor for previously approved expenses within 15 days of the date
of Contractor’s invoice, provided Contractor has furnished
documentation for expenses, as reasonably requested by Company.
Section 3. Nondisclosure Agreement
As a condition of Company’s obligations under this Agreement, Contractor agrees to enter
into and abide by the terms and conditions of a Confidentialty/Non Disclosure Agreement.
Section 4. Independent Contractor
4.1 Nature of Relationship. Contractor shall be and act as an independent contractor (and not
as the employee, agent, or representative of Company) in the performance of the Services for
Company. This Agreement shall not be interpreted or construed as creating or evidencing an
association, joint venture, partnership or franchise relationship among the parties or as imposing
any partnership, or franchisor obligation, or liability on any party. Contractor will not
represent himself as an employee or agent of Company. Contractor shall not be entitled to, and
shall not attempt to, create or assume any obligation, express or implied, on behalf of Company.
Contractor shall be required to devote Contractor’s full time to the performance of Services under
this Agreement during the term of this Agreement. Since Contractor will not be an employee of
Company, Contractor will not be entitled to any of the benefits that Company may make available to
its employees, such as vacation pay, sick leave, insurance programs, including group health
insurance or retirement benefits. In addition, Contractor acknowledges that as an independent
contractor, he is not eligible to recover worker’s compensation benefits in the event of injury.
4.2 Contractor Responsible for Taxes and Records. Contractor will be solely responsible for
and will file, on a timely basis, all tax returns and payments required to be filed with or made to
any federal, state or local tax authority with respect to Contractor’s performance of the Services
and receipt of fees under this Agreement. Contractor will be solely responsible for and must
maintain adequate records of expenses incurred in the course of performing the Services under this
Agreement. No part of Contractor’s compensation will be subject to withholding by Company for the
payment of any social security, federal, state or any other employee payroll taxes. Company will
regularly report amounts paid to Contractor by filing Form 1099-MISC with the Internal Revenue
Service as required by law.
Section 5. Work Product
5.1 Ownership and Assignment. Company owns or upon assignment by the creator will own: (i)
all concepts, works, inventions, information, software, and other materials developed by
Contractor either alone or with others, that result from or relate to the Services (collectively,
“Work Product”) and (ii) all marks, trade secrets, copyrights, patents, and other intellectual
property rights (“Proprietary Rights”) in such Work Product. Work Product does not include any
inventions or developments made by Contractor prior to the Effective Date. Any copyrightable
aspects of Work Product are “works made for hire” to the full extent permitted by law. Contractor
shall assign to
Company Contractor’s entire right, title, and interest in all Work Product and all
Proprietary Rights in Work Product. Contractor shall execute any documents in connection with such
assignment that Company may reasonably request. Contractor appoints Company its attorney-in-fact
to execute assignments of, and register all rights to, the Work Product and the Proprietary Rights
in Work Product. This appointment is coupled with an interest.
Section 6. Term
This Agreement is effective as of July 13, 2010 (“Effective Date”) and will continue for
five (5) months or until December 31, 2010, with the option to extend to March
31st 2011 unless terminated earlier in accordance with Section 7 below.
Section 7. Termination, Noninterference, and Noncompete
7.1 Termination. Consultant may terminate this Agreement for any reason, with or without
cause, upon sixty (60) days’ prior written notice to Company. Company may terminate this Agreement
upon sixty (60) days prior written notice upon the occurrence of (a) breach by Consultant of any
provision of this Agreement, (b) conviction of Consultant of any felony or (c) a determination by
the Company that the Consultant’s services are no longer needed by the Company due to change in the
Company’s business strategy, including without limitation, a determination to cease the development
of Lake Providence Succinic Acid facility (MySAB). Company may discontinue its efforts develop, own
and operate production facilities for any reason without incurring any liability to Contractor.
7.2 Rights Upon Termination. If this Agreement is terminated while work is in progress under
the Agreement, Company and Contractor agree that all right, title, and interest in Work Product
conceived or developed by Contractor alone or with others in connection with the provision of
Services as of the date of termination will be deemed assigned to Company and Company may not
recover any fees for Services rendered, or reimbursements for expenses incurred, that have been
paid by Company to Contractor as of the date of termination.
7.3 Noninterference with Business. During the course of Contractor’s performance of the
Services for Company and for a period of twelve (12) months after the termination of this
Agreement, Contractor will not interfere with Company’s business in any manner, including without
limitation, by encouraging anyone to leave Company’s employ or by encouraging any employee or
independent contractor to sever that person’s relationship with Company.
7.4 Noncompete. For twelve (12) months following the termination of this Agreement, Contractor
will not perform services for, participate in the ownership, management, or operation of, or in any
manner be connected with, any Competitor, without Company’s prior written consent. As used in this
Section, “Competitor” means any entity that, directly or indirectly, competes with Company in the
production of ethanol or engages in the development, license, or sale of products or services that
compete with products or services then produced or marketed by Company, that Company is then
preparing to produce or market, or the feasibility for marketing or
developing of which Company is then actually studying.
Section 8. Business Opportunities
Contractor will promptly disclose to Company any business opportunity of which Contractor
becomes aware as a result of its performance of the Services. Contractor will not take advantage of
or divert any such opportunity for the gain, profit, or benefit of Contractor or any other person
or entity without the written consent of Company.
Section 9. Indemnification
Contractor will indemnify, defend, and hold Company (and its affiliates and their
respective directors, officers, employees, successors, assigns, insurers, licensees,
distributors, independent contractors, and agents) harmless from all claims, damages, losses,
and expenses (including reasonable attorneys’ fees incurred on such claims and in proving the
right to indemnification) arising out of or resulting from any claim, action, or other
proceeding that is based upon (a) Contractor’s breach of any obligations, representations, or
warranties under this Agreement, (b) the conduct of Contractor’s business outside the scope of
this Agreement, or (c) any negligent act or omission of Contractor.
Company will indemnify, defend, and hold Contractor harmless from all claims, damages,
losses, and expenses (including reasonable attorneys’ fees incurred on such claims and in
proving the right to indemnification) arising out of or resulting from any claim, action, or
other proceeding that is based upon (a) Company’s breach of any obligations, representations, or
warranties under this Agreement, (b) the conduct of Company’s business outside the scope of this
Agreement, or (c) any negligent act or omission of Company.
Section 10. Remedy
Contractor acknowledges that any breach by Contractor of this Agreement will cause
irreparable injury to Company. Accordingly, in the event of such breach or an impending breach,
Company shall be entitled to obtain restraining orders, injunctions, and other equitable relief
from a court in addition to, and not in lieu of, the right to seek damages and any other right
or remedy afforded to Company by law or otherwise.
Section 11. General Provisions
11.1 Governing Law; Forum. This Agreement will be governed by the laws of Massachusetts,
excluding its choice of law rules. Contractor irrevocably consents to the exclusive personal
jurisdiction and venue of the federal and state courts located in Boston, Massachusetts with
respect to any dispute arising out of or in connection with this Agreement, and agrees not to
commence or prosecute any action or proceeding arising out of or in connection with this Agreement
other than in the aforementioned courts.
11.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable
for any reason, the remaining provisions will continue in full force without
being impaired or invalidated in any way. Company and Contractor agree to replace any
invalid
provision with a valid provision that most closely approximates the intent and economic effect of
the invalid provision.
11.3 Nonwaiver. Any failure by Company to enforce strict performance of any provision of
this Agreement will not constitute a waiver of Company’s right to subsequently enforce such
provision or any other provision of this Agreement.
11.4 Successors and Assigns. Neither this Agreement nor any of the rights or obligations of
Contractor arising under this Agreement may be assigned without Company’s prior written consent.
Company may assign its rights arising under this Agreement to an affiliated entity without the
consent of Contractor. Subject to the foregoing, this Agreement will be binding upon, enforceable
by, and inure to the benefit of, the parties and their successors and assigns.
11.5 Company Marks. Contractor will not use any trade name, trademark, service xxxx, or
logo of Company (or any name, xxxx, or logo confusingly similar thereto), in any advertising,
promotions, or otherwise, without Company’s prior written consent.
11.6 Notices. All notices and other communications under this Agreement must be in writing,
and must be given by registered or certified mail, postage prepaid, or delivered by hand to the
party to whom the communication is to be given, at its address set forth below.
11.7 Legal Fees. If any dispute arises between the parties with respect to the matters covered
by this Agreement, the prevailing party in any proceeding to resolve such dispute will be entitled
to receive its reasonable attorneys’ fees and costs incurred in connection with the proceeding, in
addition to any other relief it may be awarded.
11.8 Survival. The provisions of Sections 4, 5, 7, and 9 (as well as any other provision
that reasonably should be interpreted as surviving this Agreement) will survive any termination
or expiration of the term of this Agreement.
11.9 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the
parties as to the subject matter of this Agreement. It may not be changed orally but only in
writing signed by both parties.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
11.10 Counterparts. This Agreement may be signed in counterparts, each of which shall be
deemed an original, and all of which, taken together, shall be deemed one and the same document.
| MYRIANT TECHNOLOGIES LLC: |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Printed Name: Xxxxxxx X. Xxxxx | ||||
| Title:
Chief Executive Officer |
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| Address: | Myriant Technologies LLC Xxx Xxxxxxxxxxxx Xxxx Xxxxx 000 Xxxxxx, XX 00000 |
|||
| XXXXXXX XXXXX (Individual Contractor): |
||||
| By: | Xxxxxxx Xxxxx | |||
| Printed Name: Xxxxxxx Xxxxx | ||||
| /s/ Xxxxxxx Xxxxx | ||||
| Signature: |
||||
| Address: | 0 Xxxxxxx’x Xxxx | |||
| Xxxxxxxxxx, XX 00000 | ||||
Effective Date: July 13, 2010
EXHIBIT A
SERVICES AND COMPENSATION
Consultant/Contractor: Xxxxxxx Xxxxx
Effective Date: July 13, 2010
| 1. | THE SERVICES |
| 1.1 | General Description | ||
| Contractor will perform the duties and have the responsibilities of the Lake Providence project capital cost reduction, finalization of budget period two application and completing assignable EPCM contract. | |||
| 1.2 | Designated Personnel | ||
| Contractor’s main point of contact at the Company will be Xxxxx Xxxxxxx, Executive Vice President. |
| 2. | COMPENSATION |
| 2.1 | Amount and Basis: | ||
| Contractor will be paid monthly as ($5,000) in cash and ($15,000) worth of membership units at current value. Stock to be fully vested upon completion of assignments and/or by January 1, 2011 whichever comes first. | |||
| Membership units shall accrue each month and all earned shares through December 31, 201 shall vest at the earliest of: |
| 1. | January 1, 2011, or | ||
| 2. | A change in control of Myriant Technologies. |
| If there is a contract extension beyond December 31, 2010, Contractor shall continue to accrue monthly and any earned shares will vest upon the earliest of a new termination date, or change in control. |
| Contractor will submit an invoice to Company for Services performed and reimbursable expenses. Reimbursable expenses shall include; approved travel expenses, daily commute mileage, phone, fax etc. Expenses are to be invoiced monthly, and paid by Myriant within 15 days of invoice. The invoice will be in a form and content reasonably acceptable to Company and will describe (a) the Services performed; (b) the number of hours expended performing the Services; and (c) any reimbursable expenses. Contractor will furnish such receipts, documents and other supporting materials as Company reasonably may request to verify the contents of any invoice. |
EXHIBIT B
BONUS SCHEDULE
Consultant/Contractor: Xxxxxxx Xxxxx
Effective Date: July 13, 2010
Bonus #1:
| Contractor will be paid one month’s compensation for successful entry into budget period 2. Contractor will receive one times (1X) monthly compensation if completed by December 31, 2010. Contractor will receive two times (2X) monthly compensation if completed by December 1, 2010. |
Bonus #2:
| Contractor will be paid one month’s compensation for signable EPCM Contract. Contractor will receive one times (1X) monthly compensation if completed by December 15, 2010. Contractor will receive two times (2X) monthly compensation if completed by November 15, 2010. Contractor |
Bonus #3:
| Contractor will be paid one month’s compensation for Project Capital Costs as submitted to the DOE and approved them. Contractor will receive three times (3X) monthly compensation if Project Costs are between $95.00M and $90.00M. Contractor will receive five times (5X) monthly compensation if Project Costs are below $90.00M. Contractor and Company will review this bonus component if the contracting strategy changes (EPC vs. EPCM). |
For this Bonus Schedule, compensation refers to membership units only, which will vest
on January 1, 2011.
