CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 16th
day of September, 1996, by and between PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware corporation (the "Company"), and XXXX
XXXXXX, an individual ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx is experienced in connection with providing
substitute fuels for cement kilns;
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 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:
(a) Assist and advise the Company on raw materials for
cement kilns;
(b) Assist and advise the Company on the burning of
hazardous and non-hazardous waste by cement kilns as fuels;
and,
(c) Such other consulting services to be performed on
behalf 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
services to be rendered by Xxxxxx hereunder 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 six (6) months
from the date of this Agreement.
3. Compensation. In consideration of Xxxxxx providing the
consulting services under this Agreement, the Company agrees to
issue to Xxxxxx 13,000 shares of the Company's Common Stock (the
"Shares") 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 Xxxxxx under this Agreement on
a Form S-8 Registration Statement ("Form S-8") under the Act as soon
as reasonably practicable. Xxxxxx shall not be entitled to any cash
compensation for his consulting services rendered under this
Agreement. Xxxxxx' compensation for his services rendered hereunder
shall solely consist of the Shares, except as otherwise expressly
provided herein. If on the date that Xxxxxx xxxxx, transfers or
disposes of the Shares in an open market transaction, or on the date
that is six (6) months from the date hereof, whichever event occurs
first (the "Determination Date"), the Shares shall have a Fair
Market Value (as defined below) greater than $21,500, Xxxxxx shall,
within ten (10) days from the Determination Date, pay to the Company
the difference between the Fair Market Value and $21,500. In the
event the Fair Market Value of the Shares does not equal or exceed
$21,500 at any time from the date that the Form S-8 is filed with
the Commission and ending six (6) months from the date of this
Agreement, then the Company shall, within ten (10) business days
after the expiration of six (6) months from the date of this
Agreement, pay to Xxxxxx the difference between $21,500 and the
highest Fair Market Value of the Shares during such period. For the
purposes of this Agreement, the term "Fair Market Value" shall mean,
on any day, the sum determined by multiplying the closing price (as
defined herein) per share of the Company's Common Stock by 13,000.
The "closing price" shall be the reported closing bid price regular
way on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ") or, if the Company's Common Stock is not
listed or admitted to trading on the NASDAQ, the average of the
closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm reasonably
selected from time to time by the Company's Board of Directors.
4. Confidential Information.
(a) For a one (1) year period following the date of the
Agreement, (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, insurance matters, 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.
(b) Injunctive Relief. In the event of a breach by
Xxxxxx of any of the terms or provisions of this Section 4,
the Company shall be entitled to an injunction to prevent
irreparable injury to it or any of its subsidiaries or any of
its 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, attorney's fees and other costs.
5. 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 neither party hereto shall assign its
rights hereunder without the prior written consent of the
other party.
(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 Xxxxxx'
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: Xxxx Xxxxxx
XXX 00, Xxx 00
Xxxxx, Xxxxxxxx 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. Xxxxxx understands that the Company is 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.
(j) 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 may not
bind the Company or any subsidiary of the Company in any
manner whatsoever.
IN WITNESS WHEREOF, the parties hereto have executed this
Consulting Agreement on the date first above written.
________________________________
Xxxx Xxxxxx
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\EXHIB99.8
