CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this ____
day of November, 1996, by and between PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware corporation (the "Company"), and C. XXX
XXXXXX, JR., an individual ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx has experience in the design and installation
of certain air handling systems for environmental companies;
WHEREAS, the Company wishes to engage Xxxxxx as an independent,
outside consultant to the Company, and Xxxxxx desires to accept such
engagement, pursuant to the terms and conditions of this Agreement;
WHEREAS, in consideration for such engagement, the parties
desire to provide for the issuance of up to 12,500 shares of the
Company's Common Stock, par value $.001 per share ("Common Stock"),
on terms and subject to the conditions hereinafter set forth;
WHEREAS, the parties intend this Agreement to constitute an
"Employee Benefit Plan", as such term is defined under Rule 405 of
the Securities Act of 1933, as amended; and,
WHEREAS, the parties do not intend that this Agreement qualify
under Section 401 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereto, intending to be
legally bound, do hereby agree as follows:
1. Engagement of Xxxxxx. The Company does hereby engage
Xxxxxx, and Xxxxxx does hereby accept such engagement, as an
outside, independent consultant to provide the following consulting
services for the Company in connection with:
(a) Design of the air handling system for Perma-Fix of
Florida, Inc.'s ("PFF"), a wholly owned subsidiary of the
Company, low level nuclear materials' treatment, storage
and/or disposal facility in Gainesville, Florida;
(b) Installation of the air handling system at PFF's
Gainesville, Florida facility; and
(c) Such other consulting services to be performed on
behalf of the Company or subsidiaries of the Company as
reasonably requested by the Chairman of the Board or Chief
Executive Officer of the Company.
Provided, however, that Xxxxxx shall render bona fide consulting
services to the Company under this Agreement, and none of the
consulting services to be rendered by Xxxxxx shall be in connection
with the offer or sale of securities or in a capital-raising
transaction.
2. Term. Xxxxxx will provide the above consulting services
for the Company under this Agreement for a period of twelve (12)
months from the date of this Agreement (the "Term").
3. Compensation. In consideration of Xxxxxx providing the
consulting services under this Agreement, the Company agrees to pay
to Xxxxxx up to the sum of Twenty-Five Thousand Dollars ($25,000),
payable as follows:
(a) The first Fifteen Thousand Dollars ($15,000) of such
consulting work performed by Xxxxxx hereunder shall be paid by
the issuance of 7,500 shares of the Company's Common Stock to
Xxxxxx within ten (10) business days from the latter of (i)
the date that the Company's Form S-8 (as defined below)
registering the shares of Common Stock that might be issued to
Xxxxxx pursuant to the terms of this Consulting Agreement
becomes effective under the Securities Act of 1933, as
amended (the "Act"), or (ii) the date that Xxxxxx has
performed the first Fifteen Thousand Dollars ($15,000) in
consulting services under this Agreement based on invoices
submitted by Xxxxxx to the Company for such consulting
services, which invoices have been approved by the Company and
such consulting services are satisfactory to the Company; and
(b) After Xxxxxx performs the first Fifteen Thousand
Dollars ($15,000) in consulting services under this Agreement,
which shall be paid by the Company pursuant to (a) above,
Xxxxxx shall, from time to time thereafter during the Term,
submit to the Company invoices for such additional consulting
work performed by Xxxxxx under this Agreement ("Additional
Consulting Work"), which invoices have been approved by the
Company and such Additional Consulting Work are satisfactory
to the Company. Within ten (10) business days of the later of
(i) the end of the Term or (ii) the date that the Form S-8
becomes effective under the Act, the Company shall issue to
Xxxxxx that number of shares of Common Stock determined by
dividing the then outstanding invoices submitted by Xxxxxx to
the Company for such Additional Consulting Work, with the
amount of such invoices for such Additional Consulting Work
not to exceed Ten Thousand Dollars ($10,000), by the closing
bid price per share of the Company's Common Stock as quoted on
the NASDAQ on the determination date, with the number of
shares of Common Stock to be issued under this paragraph (b)
not to exceed 5,000, in full satisfaction of such Additional
Consulting Work performed by Xxxxxx. If Xxxxxx submits
invoices to the Company for Additional Consulting Work, which
invoices have been approved by the Company, exceeding Ten
Thousand Dollars ($10,000), then that amount of such invoices
in excess of such Ten Thousand Dollars ($10,000) shall be paid
by the Company to Xxxxxx, in cash or by check, within ten (10)
business days of the later of (i) the end of the Term or (ii)
the date that the Form S-8 Registration Statement ("Form S-8")
becomes effective under the Act.
The Company shall use reasonable efforts to register the shares of
Common Stock to be issued to Xxxxxx under this Agreement on a Form
S-8 under the Act as soon as reasonably practicable after execution
of this Agreement. Xxxxxx shall not be entitled to any cash
compensation for his consulting services rendered under this
Agreement.
4. Agreement Not to Solicit Customers and Employees. Xxxxxx
agrees that, during the term of this Agreement and for a period of
one (1) year following the termination of the Term of this
Agreement, he shall not, either alone or for himself or on behalf
of any other person, firm, corporation or entity, directly or
indirectly:
(a) Induce, or in any manner attempt to induce, any
person employed by, or any agent of, the Company or any of the
subsidiaries of the Company or any of their affiliates to
terminate his or her employment or agency, as the case may be;
or,
(b) Solicit, induce, or attempt to solicit or induce,
any supplier or customer of the Company or any subsidiaries of
the Company or any of their affiliates to cease being (or any
prospective supplier not to become) a supplier or customer of
the Company or any of the subsidiaries of the Company or any
of their affiliates.
5. Confidential Information. During the Term and for a
period of one (1) year following the termination of the Term, (i)
Xxxxxx shall hold, in a fiduciary capacity for the benefit of the
Company and all subsidiaries of the Company, all secret or
confidential information, knowledge or data relating to the Company
and all subsidiaries of the Company or any of their affiliated
companies and their respective businesses, which shall have been
obtained by Xxxxxx at any time and which shall not be public
knowledge (other than by acts of Xxxxxx or his representatives in
violation of this Agreement), including, without limitation,
customer lists, bid proposals, contracts, matters subject to
litigation and information regarding periods and environmental
applications, and (ii) Xxxxxx shall not, without the prior written
consent of the Company, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those
designated by it.
6. Injunctive Relief. In the event of a breach by Xxxxxx of
any of the terms or provisions of Sections 4 or 5 of this Agreement,
the Company shall be entitled to an injunction to prevent
irreparable injury to it or any of its subsidiaries or any of their
affiliates. Nothing shall be construed as prohibiting the Company
from pursuing any other remedies (at law or in equity) available to
it for such breach, including, but not limited to, recovery of
damages, attorneys' fees and other costs.
7. Miscellaneous.
(a) Assignment and Binding Effect. The respective
rights and obligations of the parties under this Agreement
shall be binding upon the parties hereto and their heirs,
executors, administrators, successors and permitted assigns;
provided, however, that the Company may not assign its rights
hereunder without the prior written consent of Xxxxxx.
(b) Governing Law. This Agreement shall be governed as
to its validity, interpretation and effect by the laws of the
State of Delaware.
(c) Entire Agreement; Amendments. This Agreement
constitutes the entire agreement and understanding of the
Company and Xxxxxx with respect to the terms of Daniel's
consultancy relationship with the Company and supersedes all
prior discussions, understandings and agreements with respect
to such consultancy relationship. This Agreement may not be
amended unless by the mutual written consent of all of the
parties hereto.
(d) Captions. All captions and headings used herein are
for convenient reference only and do not form part of this
Agreement.
(e) Waiver. The waiver of a breach of any term or
provision of this Agreement shall not operate as, or be
construed to be, a waiver of any other or subsequent breach of
this Agreement.
(f) Notices. Any notice or communication required or
permitted under this Agreement shall be made in writing and
shall be delivered by hand, or mailed by registered or
certified mail, return receipt requested, or first class
postage prepaid, addressed as follows:
if to Xxxxxx, to: X. Xxx Xxxxxx
Xxxx Office Box 10428
Xxxxxxxxxxxx, Xxxxxxx 00000
if to the Company to: Perma-Fix Environmental
Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx, Xxxxx X
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxx,
Chairman
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute one and the same
Agreement.
(h) Legal and Tax Effects. This Agreement is not
qualified under Section 401 of the Internal Revenue Code of
1986, as amended. Xxxxxx understands that the Company has not
provided any legal or tax advice regarding this Agreement and
that Xxxxxx is to consult with his legal and tax consultants
regarding this Agreement.
(i) Independent Contractor. Xxxxxx is an independent
contractor and is not, in any manner, an employee or agent of
the Company or any subsidiary of the Company. Xxxxxx xxx not
bind the Company or any subsidiary of the Company in any
manner whatsoever.
(j) Florida Blue Sky Laws. The securities have not been
registered with the State of Florida, but will be sold in
reliance on an exemption from such registration set forth in
Section 517.061(11) of the Florida Statutes. Pursuant to Section
517.061(11)(a)(5) of the Florida Statutes, a Florida investor
has a three (3) day right of rescission. A Florida resident
who executes this Agreement may elect, within three (3)
business days after signing this Agreement, to withdraw from
this Agreement and thereby terminate this Agreement. Such
withdrawal will be without any further liability to any
person. To accomplish such withdrawal, a Florida resident
need only send a letter or telegraph to the Company at the
address set forth in this Agreement indicating his intention
to withdraw. Such letter or telegram must be sent and
postmarked prior to the end of the aforementioned third (3rd)
business day. If a Florida resident sends a letter, it is
prudent to send it by certified mail, return-receipt
requested, to ensure that it is received and also evidence the
time and date when it is mailed. Should a Florida resident
make this request orally, he should ask for written
confirmation that his request has been received.
IN WITNESS WHEREOF, the parties hereto have executed this
Consulting Agreement on the date first above written.
________________________________
C. Xxx Xxxxxx, Jr.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By:_____________________________
Xx. Xxxxx X. Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
BALL:\N-P\PESI\S-8\XXXXX\EXHIB99.1
