Exhibit 10.3
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is executed and delivered as
of August 15, 1997, by and between Eastern Environmental Services, Inc., a
Delaware corporation ("Company"), Harford Disposal, Inc. (Subsidiary"), and
Xxxxx Xxx Xxxx, an individual ("Consultant").
RECITALS
Subsidiary owns the Oak Avenue Rubble Fill in Harford County,
Pennsylvania (the "Landfill"). The Landfill utilizes certain permits and
governmental approvals in conducting its current operations. Consultant is an
expert in landfill operation and Maryland permit issues and is familiar with the
operating and permit history of the Landfill.
Company and Subsidiary desire to acquire the services of Consultant
and Consultant desires to provide services to Company and Subsidiary, all on the
terms and conditions set forth in this Agreement.
Now, Therefore, in consideration of the mutual promises, terms and
conditions set forth herein and the performance of each, the parties hereby
agree as follows:
1. Services.
(a) Company hereby retains Consultant as an independent contractor to
provide ongoing advice to Subsidiary concerning the operation of the Landfill
and compliance matters relating to the permits and governmental approvals
required to operate and expand the Landfill.
(b) Consultant hereby agrees to provide advice to Subsidiary
concerning the operation of the Landfill and compliance matters as and when
requested by Subsidiary, during the Term of this Agreement.
2. Term. The term of this Agreement shall commence on the date of this
Agreement and shall continue throughout the period the Landfill is in operation,
which period is anticipated to be fifteen (15) years from the date hereof
("Term").
3. Compensation. For all services to be rendered by Consultant to
Subsidiary during the Term, Company shall pay Consultant a total consulting fee
of $1,712,500, payable in cash or in the Common Stock of the Company as the
parties may agree, whether or not Consultant is requested to provide advice to
Subsidiary. If the parties do not agree on what portion shall be paid in cash or
in
stock, the fee shall be payable in cash. No taxes shall be withheld from the fee
payments, and Consultant's fees shall be reported on Form 1099. The Consultant
will not receive any benefits from the Company which the Company offers its
employees.
4. Consultant's Representation and Warranty. With knowledge that
Company is relying upon the representation, warranty and covenant herein
contained, Consultant represents and warrants to Company and makes the following
covenant for Company's benefit: Consultant will not at any time, in any fashion,
form, or manner, either directly or indirectly, divulge, disclose, or
communicate to any person, firm, or corporation in any manner whatsoever any
information of any kind, nature, or description concerning any matters affecting
or relating to the business of the Company, including, but not limited to, the
names of any of its customers or prospective customers or any other information
concerning the business of the Company, its manner of operation, its plans, or
any other data of any kind, nature, or description, without regard to whether
any or all of the foregoing matters would be deemed confidential, material, or
important; provided however, that Consultant may disclose such information to a
customer of the Company in the ordinary course of business and may disclose such
information to an employee of the Company in the ordinary course of providing
services under this Agreement. Consultant agrees that the foregoing
representation and warranty is a material term of this Agreement, and gravely
affects the effective and successful conduct of the business of the Company and
affects its reputation and goodwill, and that any breach or falsity of the
foregoing is a material breach of this Agreement, from which Consultant may be
enjoined and for which the Consultant shall also pay to the Company all damages
(including but not limited to compensatory, incidental, consequential and lost
profits damages), which arise from the breach, together with interest, costs and
attorneys fees to collect such damages. For purposes of this paragraph, the term
"Company" shall include Subsidiary and all other affiliates of Company.
5. Termination; Rights of Termination. This Agreement may be
terminated during the Term hereof in any one or more of the following ways:
(a) Automatically upon the death or resignation of Consultant.
(b) By Company upon written notice to Consultant upon:
(i) Consultant's breach of this Agreement, or the breach or
falsity of the representation or warranty set forth in Paragraph 4
hereinabove, or Consultant's failure or refusal to perform his duties
to the Company as set forth in this Agreement; or
(ii) gross negligence or willful misconduct by Consultant with
respect to the Company or any of its affiliates or subsidiaries,
including without limitation fraud, embezzlement, theft or proven
dishonesty in the course of engagement hereunder.
The written notice provided for herein shall state the reason for the
termination of this Agreement.
(c) Upon termination of this Agreement under this Paragraph 5 for any
reason, Consultant shall be entitled to receive the entire consulting fee
provided for in Paragraph 3 hereof.
(d) In the event of termination of this Agreement for any reason
provided in this Paragraph 5, or if Consultant resigns prior to the expiration
of the Term of this Agreement, all rights and obligations of Company and
Consultant under this Agreement shall cease immediately, except that
Consultant's obligations under this subparagraph and Paragraph 4 and the
Company's obligations under Paragraphs 3 and 5(c) herein shall survive such
termination.
6. Complete Agreement. This Agreement is the final, complete and
exclusive statement and expression of the agreement between Company and
Consultant, it being understood that there are no oral representations,
understandings or agreements covering the same subject matter as this Agreement.
This Agreement supersedes, and cannot be varied, contradicted or supplemented by
evidence of any prior or contemporaneous discussions, correspondence, or oral or
written agreements of any kind. This Agreement may be modified, altered or
otherwise amended only by a written instrument executed by both Company and
Consultant.
7. No Waiver; Remedies Cumulative. No waiver by the parties hereto of
any default or breach of any term, condition or covenant of this Agreement shall
be deemed to be a waiver of any subsequent default or breach of the same or any
other term, condition or covenant contained herein. No right, remedy or election
given by any term of this Agreement shall be deemed exclusive but each shall be
cumulative with all other rights, remedies and elections available at law or in
equity.
8. Assignment; Binding Effect. Consultant understands that Consultant
has been selected by Company on the basis of Consultant's personal
qualifications, experience and skills. Consultant agrees, therefore, that this
Agreement and the rights to his services may be assigned by Company at any time
without notice to him, but that he cannot assign all or any portion of this
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and Company's successors and assigns. It is further understood
and agreed that Company may be merged or consolidated with another entity and
that any such entity shall automatically succeed to the rights, powers and
duties of Company hereunder.
9. Notice. All notices or other communications required or permitted
hereunder shall be in writing and may be given by depositing the same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, by overnight courier or
by delivering the same in person to such party.
To Company: President
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
To Consultant: Xxxxx Xxx Xxxx
Oak Grove Marine Center, Bldg. , Box 5
0000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Notice shall be deemed given and effective the day personally delivered, the day
after being sent by overnight courier and three days after the deposit in the U.
S. mail of a writing addressed as above and sent first class mail, certified,
return receipt requested, or when actually received, if earlier. Either party
may change the address for notice by notifying the other party of such change in
accordance with this Paragraph 9.
10. Severability; Headings. If any portion of this Agreement is held
invalid or inoperative, the other portions of this Agreement shall be deemed
valid and operative and, so far as is reasonable and possible, effect shall be
given to the intent manifested by the portion held invalid or inoperative. The
paragraph headings herein are for reference purposes only and are not intended
in nay way to describe, interpret, define or limit the extent or intent of this
Agreement or of any part hereof.
11. Gender. The use of the masculine pronoun in this Agreement has
been used for convenience and shall apply to the Consultant even where the
Consultant is a female.
12. Governing Law. This Agreement shall in all respects be construed
in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement on the year and day above written.
EASTERN ENVIRONMENTAL SERVICES, INC.
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
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Its: Executive Vice President
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/s/ Xxxxx X. Xxx Xxxx
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Xxxxx Xxx Xxxx
