CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is executed as of
November ___, 1996, but shall be considered effective as of the 1st
day of day of April, 1996, by and between PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware corporation (the "Company"), and XXXX
XXXXXXXXX, an individual ("Xxxxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxxxxx has experience in waste water treatment
facilities;
WHEREAS, the Company wishes to engage Xxxxxxxxx as an
independent, outside consultant to the Company, and Xxxxxxxxx
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 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 Xxxxxxxxx. The Company does hereby engage
Xxxxxxxxx, and Xxxxxxxxx does hereby accept such engagement, as an
outside, independent consultant to provide the following consulting
services for the Company in connection with:
(a) The construction of the waste water treatment
facility at the Fort Lauderdale, Florida plant of Perma-Fix of
Fort Lauderdale, Inc. ("PFFL"), a wholly owned subsidiary of
the Company;
(b) The design for improvements to, and the upgrade of,
the waste water treatment facility at Perma-Fix of Dayton,
Inc.'s ("PFD"), a wholly owned subsidiary of the Company,
Dayton, Ohio plant;
(c) The construction of improvements to, and the upgrade
of, the waste water treatment facility at PFD's Dayton, Ohio
plant; and,
(d) 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 Xxxxxxxxx shall render bona fide consulting
services to the Company under this Agreement, and none of the
consulting services to be rendered by Xxxxxxxxx shall be in
connection with the offer or sale of securities or in a capital-
raising transaction.
2. Term. Xxxxxxxxx has and will provide the above consulting
services for the Company under this Agreement for a period of one
(1) year from April 1, 1996 (the "Term").
3. Compensation. In consideration of Xxxxxxxxx providing the
consulting services for PFFL for the period from April 1, 1996,
through August 31, 1996, and for PFFL and PFD for the period from
September 1, 1996, through March 31, 1997, the Company agrees to
issue to Xxxxxxxxx 45,000 shares of the Company's Common Stock (the
"Shares"), payable as follows:
(a) Within ten (10) business days from the date that the
Company's Form S-8 (as defined below) registering the Shares
under the Securities Act of 1933, as amended (the "Act"),
becomes effective with the Securities and Exchange Commission
("Commission") issue to Xxxxxxxxx 20,000 of the Shares;
(b) Three (3) months thereafter, or approximately
January 1, 1997, whichever occurs later, issue to Xxxxxxxxx
15,000 of the Shares; and,
(c) Three months thereafter, or approximately March 1,
1997, whichever occurs first, issue to Xxxxxxxxx the remaining
10,000 of the Shares on approximately April 1, 1997.
The Company shall use reasonable efforts to register the Shares to
be issued to Xxxxxxxxx under this Agreement on a Form S-8
Registration Statement ("Form S-8") under the Act as soon as
reasonably practicable. Xxxxxxxxx shall not be entitled to any cash
compensation for his consulting services rendered under this
Agreement, except as otherwise expressly provided in this Section
3.
If Xxxxxxxxx sells all of the Shares during the Term in open
market transactions for an amount equal to the prevailing fair
market price for such Shares on the date of such sale, and, as a
result of such sale or sales by Xxxxxxxxx of all of the Shares
during the Term, Xxxxxxxxx receives a gross amount, less reasonable
and customary brokerage commissions ("Gross Amount Received by
Xxxxxxxxx"), of less than $90,000, then, within forty-five (45) days
after the end of the Term, the Company will pay to Xxxxxxxxx a sum
equal to $90,000 less the Gross Amount Received by Xxxxxxxxx as a
result of such sale or sales of the Shares by Xxxxxxxxx during the
Term. If the Gross Amount Received by Xxxxxxxxx as a result of each
sale or sales by Xxxxxxxxx of all of the Shares equal or exceeds
$90,000, the Company shall not have any further liability or
obligation to Xxxxxxxxx under this Agreement.
4. Agreement Not to Solicit Customers and Employees.
Xxxxxxxxx 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)
Xxxxxxxxx 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 Xxxxxxxxx at any time and which shall not be public
knowledge (other than by acts of Xxxxxxxxx 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) Xxxxxxxxx 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 Xxxxxxxxx
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 Xxxxxxxxx.
(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 Xxxxxxxxx with respect to the terms of Xxxxxxxxx'x
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 Xxxxxxxxx, to: Xxxx Xxxxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000-0000
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. Xxxxxxxxx understands that the Company is
not provided any legal or tax advice regarding this Agreement
and that Xxxxxxxxx is to consult with his legal and tax
consultants regarding this Agreement.
(i) Independent Contractor. Xxxxxxxxx is an independent
contractor and is not, in any manner, an employee or agent of
the Company or any subsidiary of the Company. Xxxxxxxxx may
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 November ___, 1996, but shall be
considered effective as of April 1, 1996.
________________________________
Xxxx Xxxxxxxxx
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By:_____________________________
Xx. Xxxxx X. Xxxxxxxxxx
Chairman of the Board and
Chief Executive Officer
BALL:\N-P\PESI\S-8\11-96\XXXXX\EXHIB99.5
