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 XXX
XXXX, an individual ("Xxxx").
W I T N E S S E T H:
WHEREAS, Xxxx has experience in certain segments of the
Company's and its subsidiaries' businesses;
WHEREAS, the Company wishes to engage Xxxx as an independent,
outside consultant to the Company, and Xxxx 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 Xxxx. The Company does hereby engage Xxxx,
and Xxxx does hereby accept such engagement, as an outside,
independent consultant to provide the following consulting services
for the Company in connection with:
(a) Remediation by PFD of the site located in Dayton,
Ohio, formerly used by Environmental Processing Services (the
"EPS Site"); and,
(b) 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 Xxxx shall render bona fide consulting
services to the Company under this Agreement, and none of the
consulting services to be rendered by Xxxx shall be in connection
with the offer or sale of securities or in a capital-raising
transaction.
2. Term. Xxxx will provide the above consulting services for
the Company under this Agreement for a period of ninety (90) days
from the date of this Agreement (the "Term").
3. Compensation. In consideration of Xxxx providing the
consulting services under this Agreement, the Company agrees to
issue to Xxxx 11,000 shares of the Company's Common Stock (the
"Shares"), payable 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"). The Company shall use reasonable efforts to register
the Shares to be issued to Xxxx under this Agreement on a Form S-8
Registration Statement ("Form S-8") under the Act as soon as
reasonably practicable. Xxxx shall not be entitled to any cash
compensation for his consulting services rendered under this
Agreement. Xxxx'x compensation for his services rendered hereunder
shall solely consist of the Shares.
4. Agreement Not to Solicit Customers and Employees. Xxxx
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 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)
Xxxx 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 Xxxx at any time and which shall not be public knowledge
(other than by acts of Xxxx 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) Xxxx
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 Xxxx 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 Xxxx.
(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 Xxxx with respect to the terms of Xxxx'
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 Xxxx, to: Xxx Xxxx
c/x Xxxxxxxx Park Environmental Labs
00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxx 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. Xxxx understands that the Company is not
provided any legal or tax advice regarding this Agreement and
that Xxxx is to consult with his legal and tax consultants
regarding this Agreement.
(i) Independent Contractor. Xxxx is an independent
contractor and is not, in any manner, an employee or agent of
the Company or any subsidiary of the Company. Xxxx 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 the date first above written.
________________________________
Xxx Xxxx
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\EXHIB99.3
