EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered
into as of the 7th day of April, 1998, by and between PERMA-FIX
ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the
"Company"), and XXXXXXXXX X. XXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company believes that the services, knowledge,
and contributions of the Executive to the Company are important to
the Company; and
WHEREAS, the Company wishes to ensure that the Executive will
continue to provide his services, knowledge, and contributions to
the Company.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations, and warranties set forth in this
Agreement, the Company and the Executive agree as follows:
1. Term. Unless sooner terminated pursuant to the terms hereof,
the term of this Agreement shall commence on the date hereof and
terminate two (2) years from the date hereof, subject to extension
by the mutual agreement of the parties (the "Term") except that
Sections 5 and 6 of this Agreement shall survive termination of
this Agreement.
2. Position and Duties.
2.1 Position. The Company agrees to employ the Executive,
and the Executive agrees to such employment, as Vice
President of Nuclear Services of the Company and Vice
President and General Manager of Perma-Fix of Florida,
Inc., a wholly-owned subsidiary of the Company ("PFF"),
or such other position as the Chief Executive Officer
("CEO") or the Board of Directors of the Company shall
direct or determine to be appropriate from time to time.
The duties of the Executive include, but are not limited
to, those duties more particularly described in Exhibit
"A" as attached hereto and incorporated herein.
2.2 Location. The Executive's office shall be located in
Gainesville, Florida or any other location as mutually
satisfactory to the Company and the Executive.
2.3 Required Attention to Duties. Excluding any periods of
vacation and sick leave to which the Executive is
entitled, the Executive agrees to faithfully perform the
duties of his office, and shall devote his full time and
attention to the business and affairs of the Company, to
the extent necessary to be consistent with Section 2.1
above and shall not have any other business activities,
except as otherwise provided in Section 2.4 hereof.
2.4 Other Activities. It shall not be a violation of this
Agreement for the Executive to (i) serve on corporate,
civic or charitable boards or committees, (ii) deliver
lectures, fulfill speaking engagements or teach at
educational institutes, or (iii) manage personal
investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities
as an officer or employee of the Company and/or any
subsidiary of the Company in accordance with this
Agreement.
3. Compensation and Benefits.
3.1 Annual Base Salary. The Company shall pay to the
Executive an annual base salary of Eighty- Seven Thousand
Dollars ($87,000.00) per year ("Base Salary"), payable to
the Executive in equal semi-monthly installments, less
appropriate withholdings and deductions in accordance
with the Company's customary payroll practices, subject
to the adjustments listed below.
3.1.1 Board Adjustment. Notwithstanding the
language of Section 3.1 above, the Base Salary
may be increased from time to time as
determined by and in the sole discretion of
the Board of Directors of the Company (the
"Board"), or the Compensation Committee of the
Board.
3.2 Stock Bonus. In addition to payment of the Base Salary
and the bonus described in Section 3.3, the Company shall
pay to the Executive a bonus ("Stock Bonus") of One
Hundred Sixty-Seven Thousand Five Hundred and No/100
Dollars ($167,500.00) to be paid in the form of shares of
the Company's common stock, par value $.001 ("Common
Stock"), with the number of shares of Common Stock to be
issued under this Section 3.2 determined by dividing
$167,500.00 by the average of the closing bid prices of
the Common Stock on the NASDAQ Small Cap on the five
trading days prior to the date of execution of this
Agreement. Such shares of Common Stock to be issued
under this Section 3.2 shall be delivered to Executive
within thirty (30) days of execution of this Agreement.
3.3 Cash Bonus. In addition to payment of the Base Salary
and the Stock Bonus described above, the Company shall
pay to the Executive a bonus ("Cash Bonus") of One
Hundred Sixty-Seven Thousand Five Hundred and No/100
Dollars ($167,500.00) to be paid in cash as follows: (i)
Fifty-Six Thousand Nine Hundred Fifty and No/100 Dollars
($56,950.00) shall be paid no later than December 1, 1998
(and is intended to pay for the approximate taxes on the
value of the Stock Bonus described in Section 3.2); and
(ii) One Hundred Ten Thousand Five Hundred Fifty and
No/100 Dollars ($110,550.00) payable in twenty-four
monthly installments, without interest, with each monthly
installment to be Four Thousand Six Hundred Six and
Twenty-Five/100 Dollars ($4,606.25) less appropriate
withholdings and deductions in accordance with the
Company's customary payroll practice, with the first
installment commencing with the month during which this
Agreement is executed. Each monthly installment to be
made under this section shall be payable to the Executive
in equal semi-monthly installments.
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3.4 Benefits. The Executive shall be entitled to participate
in all employee benefit plans as are generally made
available to other employees of the Company, subject to
the terms and conditions of such benefits and plans and
as such benefits and plans may be changed by the Company
from time to time. Such benefits in existence as of the
date hereof are as follows: (i) group medical insurance
coverage, (ii) group life insurance coverage and (iii)
certain stock option plans.
3.5 Expenses. The Company shall reimburse the Executive for
any reasonable and necessary out-of-pocket expenses and
costs incurred by the Executive in connection with, or
arising out of, the performance of the Executive's duties
hereunder, provided that such expenses and costs shall
be paid or reimbursed subject to such rules, regulations,
and policies of the Company as established from time to
time by the Company.
3.6 Fringe Benefits. During the term of this Agreement, the
Executive shall be entitled to fringe benefits,
including, but not limited to, vacation in accordance
with the plans, practices, programs and policies of the
Company.
4. Other Restrictions and Legends.
4.1 Acquisition for Own Account; No Registration. The
Executive represents and warrants that the shares of
Common Stock acquired as a Stock Bonus under Section 3.2
hereof are being acquired for his own account and for the
purpose of investment and not with a view to the sale or
distribution thereof, except for sales pursuant to an
effective registration statement under the Securities Act
of 1933, as amended (the "Act") and any applicable state
securities laws, or a transaction exempt from registra-
tion thereunder, and shall not make any sale, transfer or
other disposition of the Common Stock in violation of any
applicable state securities laws, including in each
instance any applicable rules and regulations promulgated
thereunder, or in violation of the Act or the rules and
regulations promulgated thereunder by the Securities and
Exchange Commission (the "SEC"). The Executive
understands that these shares of Common Stock have not
been registered under the Act or any state securities
laws (the Company being under no obligation to effect
such registration) and that such shares must be held
indefinitely unless a subsequent disposition thereof is
registered under the Act and applicable state securities
law or is exempt from registration thereunder. The
Executive further understands that the exemption from
registration afforded by Rule 144 under the Act depends
upon the satisfaction of various conditions and that, if
applicable, Rule 144 affords the basis for sale of such
shares only in limited amounts.
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4.2 Florida Blue Sky Laws. The shares of Common Stock
acquired as a Stock Bonus under Section 3.2 hereof 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 of the Florida
Statutes.
4.3 Disposition of Shares. The Executive represents,
covenants, and agrees that he will not sell or otherwise
dispose of the shares of Common Stock acquired under this
Agreement in the absence of (a) an effective registration
statement under the Act and the Florida Statutes, or (b)
an opinion acceptable in form and substance to the
Company from Executive's counsel satisfactory to the
Company, or an opinion of counsel to the Company, to the
effect that no registration is required for such
disposition.
4.4 Restrictive Legend. The certificates representing shares
covered by this Agreement shall upon issuance thereof
have stamped or imprinted thereon or affixed thereto a
legend to the following effect:
THE REGISTERED HOLDER HEREOF HAS ACQUIRED
THE SHARES REPRESENTED BY THIS
CERTIFICATE FOR INVESTMENT AND NOT FOR
RESALE IN CONNECTION WITH A DISTRIBUTION
THEREOF. ACCORDINGLY, SUCH SHARES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO A CURRENTLY EFFECTIVE
REGISTRATION STATEMENT UNDER SAID ACT OR
OTHERWISE IN A TRANSACTION EXEMPT FROM
THE PROVISIONS OF SECTION 5 OF SAID ACT.
4.5 Receipt of Company SEC Filings and Press Releases. The
Executive has received and had an opportunity to review
true and complete copies of the following documents which
have been filed by the Company with the Securities and
Exchange Commission ("SEC") (such documents are
hereinafter collectively referred to as the "SEC
Filings"): (i) Annual Report on Form 10-K for the year
ended December 31, 1996 (the "Form 10-K"); (ii) the
Company's quarterly report on Form 10-Q for the quarter
ended March 31, 1997; (iii) the Company's quarterly
report on Form 10-Q for the quarter ended June 30, 1997;
(iv) the Company's quarterly report on Form 10-Q for the
quarter ended September 30, 1997; (v) the Company's
current report on Form 8-K dated February 7, 1997; (vi)
the Company's current report on Form 8-K/A dated June 11,
1997; (vii) the Company's current report on Form 8-K
dated July 7, 1997; (viii) the Company's current report
on Form 8-K dated January 7, 1998 and, (ix) any and all
other documents which have been filed by the Company pur-
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suant to Sections 13(a), 14(a), 14(c), and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")
since January 1, 1997. In addition, the Executive has
received and has had an opportunity to review (i) all
information required pursuant to Rule 502(b)(2) of
Regulation D under the Act and (ii) all press releases
of the Company which have been issued since January 1,
1997.
4.6 Availability of SEC Filings Exhibits. The Executive
hereby acknowledges that the Company has provided to the
Executive, at a reasonable time prior to execution of
this Agreement, the following: (i) a list of the material
exhibits to the Company SEC Filings identifying the
contents of each material exhibit; (ii) such material
exhibits upon the written request of the Executive, and
(iii) the opportunity to ask questions and to receive
answers concerning the terms and conditions of this
Agreement and to obtain any additional information which
the Company possesses or can acquire without unreasonable
effort or expense that is necessary to verify the
accuracy of the information furnished in Section 4.5 and
this Section 4.6 hereof.
4.7 Investment Expertise. The Executive has such knowledge
and experience in financial and business matters that he
is capable of evaluating the merits and risks of the
acquisition of the Common Stock under this Agreement.
5. Confidential Information.
5.1 Confidentiality. During the term of this Agreement and
for 36 months following termination of this Agreement for
any reason whatsoever, whether voluntarily or
involuntarily, the Executive agrees to hold in confidence
and not disclose, directly or indirectly any and all
secret or confidential information, knowledge or data
("Confidential Information") relating to the Company, PFF
or any of their affiliated companies, and their
respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the
Company, PFF or any of their affiliated companies. After
termination of the Executive's employment with the
Company, the Executive shall not, without the prior
written consent of the Company, communicate or divulge
any such Confidential Information to anyone other than
the Company and those designated by it in writing. This
Section 5 shall survive the termination of the Agreement.
5.2 Exceptions. Notwithstanding the provisions of Sections
5.1 hereof, the Executive shall not be held liable for
disclosure of information which (i) was in the public
domain or is generally available to the public at the
time of its disclosure by the Executive through means
unrelated to the Executive's disclosure; or (ii) is
disclosed by the Executive in connection with the
Executive performing his duties for the Company under
this Agreement; or (iii) is disclosed with the written
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approval of the Company; or (iv) is required to be
disclosed by law or by any governmental authority or
entity.
5.3 Equitable Relief. The Executive acknowledges that the
provisions of this Section 5 are reasonable and necessary
for the protection of the Company and that the Company
will be irrevocably damaged if such covenants and
provisions are not specifically enforced. The Executive
agrees that the remedy at law for any breach or
threatened breach of any covenant contained in this
Section 5 will be inadequate, and that the Company, in
addition to such other remedies as may be available to it
in law or in equity, shall be entitled to injunctive
relief without bond or other security. If it becomes
necessary for the Company to bring legal action against
the Executive as a result of his breach of any of the
covenants contained in this Section 5, the Executive
agrees to pay all of the Company's costs and expenses in
connection therewith (including, but not limited to,
reasonable attorney's fees).
6. Intellectual Property.
6.1 Patents. The Executive shall promptly advise the Company
of any invention or discovery, whether or not patentable,
made or conceived by the Executive, under the Executive's
direction during the Executive's employment with the
Company, PFF or any of their subsidiaries or affiliates
(collectively, "Inventions"). The Executive hereby
assigns to the Company, without additional consideration
to the Executive, the entire right, title and interest in
and to the Inventions and in and to all patents, trade
secrets, and other proprietary rights therein or based
thereon. The Executive shall execute all such
assignments, oaths, declarations and other documents as
may be prepared by the Company to effect the foregoing.
The Executive shall provide the Company with all
information, documentation, and assistance the Company
may request to perfect, enforce, or defend the
proprietary rights in or based on the Inventions. This
Section 6 shall survive the termination of this
Agreement.
6.2 Copyrights. The Executive agrees that the entire right,
title and interest in and to any and all materials
created by the Executive during the Executive's
employment with the Company, PFF or any of their
subsidiaries or affiliates which are subject to copyright
protection under United States copyright laws and any
copyrights thereto (collectively, "Works") are hereby
assigned to the Company, without additional consideration
to the Executive. The Executive shall execute all such
assignments, oaths, declarations and other documents as
may be prepared by the Company to effect the foregoing.
The Executive shall provide the Company with all
information, documentation, and assistance the Company
may request to perfect, enforce, or defend the
protectable rights in or based on the Works.
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6.3 Records. The Executive acknowledges that all Works,
data, memoranda, designs, reports or other
representations of information, including, but not
limited to, any representations in machine-readable form,
which are created by the Executive under this Agreement
(collectively, "Records") are the sole and exclusive
property of the Company and the Executive shall have no
right or interest in them. The Employee shall surrender
possession of all Records to the Company upon any
suspension or termination of the Executive's employment
with the Company. If after the suspension or termination
of the Executive's employment, the Executive becomes
aware of any Records in his possession, Employee shall
immediately surrender possession thereof to the Company.
7. Termination.
During the Term of this Agreement, the Executive's employment
and the Agreement may be terminated only for one of the following
reasons:
7.1 Death. This Agreement and the Term shall terminate
automatically upon the Executive's death.
7.2 Disability.
7.2.1 Definition. "Disability" of the Executive is
defined, for the purposes of this Agreement,
as physical or mental disability of the
Executive which after a continuous period of
at least 90 days is determined to be such as
to impair the Executive's ability to perform
all of his duties under this Agreement by a
physician selected by the Company.
7.2.2 Application. The Company may terminate the
Agreement and the Term after establishing the
Executive's Disability as set forth in Section
7.2.1, and by giving written notice to the
Executive of its intention to terminate the
Executive's employment with the Company
("Disability Termination Notice"). In such a
case, the Executive's employment with the
Company and the Term shall terminate effective
on the earlier of the otherwise scheduled
expiration of the Term pursuant to Section 1
or on the tenth (10th) day after receipt of
the Disability Termination Notice, provided
that the Executive has not resumed full-time
performance of his duties under this
Agreement.
7.3 Cause. The Company may terminate the Agreement and the
Term for "Cause," which for the purposes of this
Agreement is defined as (i) the conviction of the
Executive of a misdemeanor involving moral turpitude or
of a felony by a federal or state court of competent
jurisdiction; or (ii) failure to perform the Executive's
duties in breach of this Agreement; or (iii) the breach
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of any of the Executive's obligations under this
Agreement, provided however, that; failure of the
Executive to perform his duties hereunder due to a
Disability shall not be considered as a breach of the
Executive's duties under this Section 7.3.
7.4 Notice of Termination.
7.4.1 By Company. The Company shall not be deemed
to have terminated this Agreement pursuant to
the terms of Section 7 hereof, unless and
until there shall have been delivered to the
Executive a copy of a Notice of Termination
for Cause stating that the Executive is
terminated pursuant to Section 7 and the
reason for such termination.
7.5 Company Obligations Upon Termination. If, prior to the
expiration of the Term of this Agreement, the Company shall
terminate this Agreement (other than for Cause or Disability or
Death ), the Company shall continue to pay to the Executive on a
bi-monthly basis as though this Agreement had remained in effect
through the Term. If the Agreement is terminated for Cause or due
to Death or Disability of the Executive, the Company has no further
liability or obligations under this Agreement from the date of such
termination.
8. Miscellaneous.
8.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties
hereto or their respective successors and legal
representatives.
8.2 Successors. This Agreement shall inure to the benefit of
and be binding upon the heirs, executors, administrators,
and successors of the parties hereto.
8.3 Notices. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery
to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Xxxxxxxxx X. Xxxxxx
0000 X.X. 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
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If to the Company:
Perma-Fix Environmental Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
or to such other address as either party shall have
furnished to the other in writing in accordance herewith.
Notice and communications shall be effective when
actually received by the addressee.
8.4 Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity
or enforceability of any other provision of this
Agreement.
8.5 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject
matter hereof and supersedes any and all prior or
contemporaneous oral and prior written agreements and
understandings. There are no oral promises, conditions,
representations, understandings, interpretations or terms
of any kind as conditions or inducements to the execution
hereof or in effect among the parties. This Agreement
may not be amended, and no provision hereof shall be
waived, except by a writing signed by all the parties to
this Agreement, or, in the case of a waiver, by the party
waiving compliance therewith, which states that it is
intended to amend or waive a provision of this Agreement.
Any waiver of any rights or failure to act in a specific
instance shall relate only to such instance and shall not
be construed as an agreement to waive any rights or
failure to act in any other instance, whether or not
similar.
8.6 Modification. Should any provision of this Agreement be
unenforceable or prohibited by an applicable law, this
Agreement shall be considered divisible as to such
provision which shall be inoperative, and the remainder
of this Agreement shall be valid and binding as though
such provision were not included herein.
8.7 Counterparts. This Agreement may be executed in two or
more counterparts with the same effect as if the
signatures to all such counterparts were upon the same
instrument, and all such counterparts shall constitute
but one instrument.
8.8 Headings. All headings in this Agreement are for
convenience only and are not intended to affect the
meaning of any provision hereof.
8.9 Termination of Previous Agreements. The Executive and
the Company agree and acknowledge that all previous
employment agreements, understandings and arrangements
(oral or in writing) between the Executive and the
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Company or any subsidiary of the Company, including, but
not limited to, that certain Employee Services Contract
by and between the Company and the Executive, dated
July 16, 1996, are hereby terminated in all respects,
effective as of the date of this Agreement, with no
further duties or obligations to be performed by either
party thereunder.
IN WITNESS WHEREOF, the Executive has hereunto set his
hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed in
its name on its behalf, all as of the day and year first above
written.
"EXECUTIVE"
/s/ Xxxxxxxxx X. Xxxxxx
_______________________________
Xxxxxxxxx X. Xxxxxx
"COMPANY"
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
___________________________
Title: CEO
________________________
H:\N-P\PESI\employ ag.bw.wpd
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EXHIBIT A
The following are duties that are expected by the Company to be
performed by the Executive:
1. Function as General Manager of PFF, located in Gainesville,
Florida, and be responsible for the activities of the plant
including worker supervision, profit and loss, oversight of the
development and compliance regarding regulatory licenses and
permits and any other activities as required by the Chief Executive
Officer ("CEO") of the company to perform as typical General
Manager of a facility. Executive shall report to the CEO of the
Company for direction in the performance of these duties.
2. Function as Corporate Radiation Safety Officer. Besides
providing Radiation Safety Officer functions for the company
activities at Gainesville (discussed later), the Executive shall
provide assistance in the support of activities of the Company.
This includes, but is not limited to, being the liaison between the
Company and regulatory agencies, writing Health & Safety Plans as
they pertain to radiation issues, preparing licensing and other
regulatory documents in order to satisfy regulatory requirements,
perform associated travel as required.
3. Function as Company Radiation Safety Officer. Executive shall
oversee the Radiation Safety Program for compliance with its low
level radioactive license; review the exposures of authorizes users
and occupational workers quarterly to determine that the exposures
are as low as reasonably achievable; investigate unusual incidents;
review the radiation levels in restricted and unrestricted areas;
schedule and conduct briefings and educational sessions to inform
workers of the principles of radiation protection; prepare
radioactive materials license documents for the facility; and be
the liaison between the Company and PFF and the appropriate
regulatory agencies as it applies to radiation protection and all
radioactive materials licenses in effect at the facility.
4. Function as the Account Manager for the Liquid Scintillation
Vial ("LSV") business segment of PFF. This includes being the
liaison between the LSV brokers/generators and the Company; meet
with brokers and generators, as needed; negotiate and execute sales
contracts; respond to the inquiries of LSV generators; represent
the Company at trade shows and conventions; and distribute
information to requestors.
5. Function as the Mixed Waste Development Coordinator. Work
with the Company and PFF staff in developing mixed waste
opportunities for PFF's facility and other locations owned by the
Company, PFF and subsidiaries of the Company. Be responsible in
obtaining, as well as can be expected, the necessary permitting
authorization to allow for the performance of opportunities as
agreed upon by the Executive and the CEO. Be responsible for
developing prospects, negotiating as agreed upon by the Executive
and the CEO. Be responsible for developing prospects, negotiating
contracts with generators and brokers; and, negotiate disposal and
treatment options with respective disposal vendors.
6. Other duties reasonably requested by CEO or the Board of
Directors of the Company.
