EXHIBIT 10.79
AGREEMENT
THIS AGREEMENT dated as of this 30th day of MAY, 2002, by and among BCP
Management, Inc. ("BCPM"), Borden Chemicals and Plastics Operating Limited
Partnership ("OLP") and Mark J. Schneider (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 President and Chief Executive Officer of BCPM, 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:
. Participation, as requested, in review and consideration of offers for
the sale of OLP 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.
. Meeting with and communicating with the BCPM Board, and continuing as a
Director of BCPM.
. Reviewing, commenting and (as appropriate) endorsing the Form 10K for
Year 2001 for Borden Chemicals and Plastics Limited Partnership.
. Reviewing and commenting on work performed by the OLP financial advisors.
. Such other duties, consistent with the position of President and Chief
Executive Officer, as may be agreed between Independent Contractor and
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 $1,540.00 per diem, for
each day worked during a calendar month, beginning June 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,
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.
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.
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June 8 business days
July 12 business days
August 12 business days
September 6 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 as 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 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
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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.
BCPM MANAGEMENT, INC.
By /s/ William F. Stoll, Jr.
---------------------------------
Its Vice Chairman
---------------------------------
BORDEN CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP, by BCP
Management Inc., its General Partner
By /s/ William F. Stoll, Jr.
---------------------------------
Its Vice Chairman
---------------------------------
/s/ Mark J. Schneider
-------------------------------------
Mark J. Schneider
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CONTINUED AND AMENDED AGREEMENT
THIS AGREEMENT dated as of the 1st day of October, 2002, continues and
amends that Agreement, by and among BCP Management, Inc. ("BCPM"), Borden
Chemicals and Plastics Operating Limited Partnership ("OLP") and Mark J.
Schneider (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 President and Chief Executive officer of BCPM, 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:
. Participation, as requested, in review and consideration of offers
for the sale of OLP assets
. Participation with, and assistance to counsel for the OLP and BCPM,
in the preparation 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.
. Meeting with and communicating with the BCPM Board, and continuing
as a Director of BCPM.
. Reviewing, commenting and (as appropriate) endorsing the Form 10K
and Form 10Qfor Borden Chemicals and Plastics Limited Partnership.
. Reviewing and commenting on work performed by the OLP financial
advisors.
. Such other duties, consistent with the position of President and
Chief Executive Officer, as may be agreed between Independent
Contractor and 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 $1,540.00 per
diem, 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, 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.
3. The Independent Contractor agrees to provide services under this
Agreement, on the request of BCPM, through December 20, 2002, and thereafter as
agreed between the parties. 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 20, 2002, by giving 10 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 20, 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
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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 5 business days
November 6 business days
December 6 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 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
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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
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Its
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BORDEN CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP, By BCP
Management Inc., its General Partner
By
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Its
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-------------------------------------
Mark J. Schneider
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