EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into as of the
6 th
day of May, 2009, by and between
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the
“Company”), and Ben Naccarato (the
“Executive”).
WITNESSETH:
WHEREAS, the Company believes that the services,
knowledge, and contributions of the Executive to the Company are of
critical importance to the Company;
WHEREAS, the Company wishes to ensure that the
Executive will continue to provide his services, knowledge and
contributions to the Company; and
WHEREAS, the Executive is currently a
“specified employee” as defined in Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”),
and the regulations promulgated thereunder (collectively,
“Section 409A”);
WHEREAS, the Company and the Executive have
previously entered into, or may from time to time enter into a
separate arrangement, to provide certain management incentive
compensation bonuses to the Executive based on the Company’s
performance during a particular year or other period or periods (an
“Incentive Plan”).
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 three (3) years from the date hereof, subject
to extension by mutual agreement of the parties hereto (the
“Term”).
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Position . The Company agrees to employ the
Executive, and the Executive agrees to such employment, as Chief
Financial Officer of the Company, or such other position as the
Executive and the Company indicate in writing as being acceptable
to them. The Executive’s authority and duties,
including, but not limited to, hierarchical standing in the Company
and reporting requirements within the Company, shall be substantial
similar in all material respects with the most significant of those
exercised by the Executive during the 90 day period immediately
preceding the date of this Agreement, except as otherwise agreed to
in writing executed by both the Executive and the
Company.
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Location . The Executive’s duties and
services shall be performed in Atlanta, Georgia, or any other
office location satisfactory to the Board of Directors, except for
travel responsibilities required in the performance of the
Executive’s duties.
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Duties . Excluding any periods of vacation
and sick leave to which the Executive is entitled, and except as
otherwise provided in Section 2.4 below, the Executive agrees to
faithfully perform the duties of his office, and to devote his full
attention and time to the business and affairs of the Company, to
the extent consistent with this Section 2.
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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 institutions, and
(iii) manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement.
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3.
Compensation and Benefits .
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Annual Base
Salary . The
Compensation and Stock Option Committee of the Board of Directors
of the Company (the “Compensation Committee”) has set
the annual base salary of the Executive at $200,000 Dollars per
year (“Base Salary”), which Base Salary is payable by
the Company to the Executive in equal bi-weekly installments, less
appropriate withholdings and deductions in accordance with the
Company’s customary payroll practices, with the amount of the
Base Salary payable each year subject to adjustment as provided in
Section 3.3 below.
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Adjustment
to Base Salary . The Base Salary may be increased,
but not be reduced, from time to time as determined by and in the
sole discretion of the Compensation Committee.
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Incentive
Compensation Bonus . In addition to the Base Salary,
each year during the Term the Company will pay to the Executive the
incentive compensation bonus, if any, that is payable pursuant to
any Incentive Plan in effect for such year that may be adopted by
the Board of Directors of the Company or the Compensation Committee
and agreed to by the Executive with respect to the particular
fiscal year of the Company, (an “Incentive Bonus”) in
accordance with and pursuant to the terms of the Incentive
Plan. The Incentive Bonus, if any, may be modified,
changed or terminated at anytime or for any reason by the
Compensation Committee in its sole discretion in accordance with
the terms of the particular Incentive Plan.
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Benefits . During the Term, the Executive
shall be entitled to participate in all employee benefit plans that
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 include, but not limited to, (i)
group medical insurance coverage, (ii) group life insurance
coverage and (iii) certain stock option plans.
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Expenses . During the Term, the Company shall
pay directly, or reimburse the Executive, for any reasonable and
necessary 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. In event the Executive incurs
legal fees and expenses to enforce this Agreement, the Company
shall reimburse the Executive such reasonable fees in
full.
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Fringe
Benefits . During the Term, the Executive
shall be entitled to all fringe benefits including, but not limited
to, vacation in accordance with the most favorable plans,
practices, programs and policies of the Company during 12- month
period immediately preceding the date of this Agreement, or, if
more favorable to the Executive, as in effect at any time
thereafter with respect to other employees of the
Company.
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Termination
by the Company as a Result of Death or Disability; Termination by
the Company for Cause . At any time during the Term, the
Executive’s employment with the Company may be terminated for
the following reasons:
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4.1.1
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Death . The Executive’s employment
with the Company shall terminate automatically upon the
Executive’s death.
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4.1.2.1
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Definition . “Disability” of the
Executive is defined for the purposes of this Agreement as the
Executive being unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months.
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4.1.2.2
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Application . The Company may terminate the
Executive’s employment with the Company after establishing
the Executive’s Disability as set forth in this Section
4.1.2, and giving written notice 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 shall terminate
effective on the earlier of the otherwise scheduled expiration of
the Term pursuant to Section 1 or on the thirtieth (30
th ) day after receipt of the Disability
Termination Notice, provided that the Executive has not resumed
full-time performance of his duties under this
Agreement.
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4.1.3
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Cause . Subject to the requirements of
Sections 4.1.4 and 5 hereof, the Company may terminate the
Executive’s employment with the Company at any time for
“Cause”. For the purposes of this Agreement,
“Cause” is defined as (i) the ultimate conviction
(after all appeals have been decided) of the Executive by a court
of competent jurisdiction of, or a plea of nolo contendrere or a
plea of guilty by the Executive to, a felony involving moral
turpitude; or (ii) willful or gross misconduct or gross neglect of
duties by the Executive, which is injurious to the Company,
provided that, (a) no action or failure to act by the Executive
will constitute a reason for termination if the Executive believed
in good faith that such action or failure to act was in the
Company’s best interests, and (b) failure of the Executive to
perform his duties hereunder due to a Disability shall not be
considered gross misconduct or willful, gross neglect of duties for
any purpose; or (iii) the commission by the Executive of an act of
fraud or embezzlement against the Company or a subsidiary of the
Company; or (iv) Executive’s willful breach of any material
provision of this Agreement, provided however, that failure of the
Executive to perform his duties hereunder due to Disability shall
not be considered as a willful breach of this
Agreement. For the purposes of this Section 4.1.3, no
act or failure to act shall be considered “willful”
unless done or omitted to be done by the Executive in bad faith and
without reasonable belief that Executive’s action or omission
was in the best interest of the Company.
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4.1.4
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Upon Executive’s separation from service
as a result of the termination of Executive’s employment by
the Company (i) due to the Executive’s Death or Disability or
(ii) by the Company for Cause, the Company shall pay to the
Executive (or in the case of Executive’s Death,
Executive’s estate and/or beneficiary), in a single lump sum
payment, in current funds, on the date of such termination of
employment, the following:
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4.1.4.1
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any earned but unpaid Base Salary through the
date of termination;
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4.1.4.2
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any amounts payable pursuant to the terms of an
Incentive Plan sole as a result of such separation from service;
and
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4.1.4.3
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any benefits due to the Executive under any
employee benefit plan of the Company and any payments due the
Executive under the terms of any Company program, arrangement or
agreement, excluding any severance program or policy (the amounts
set forth in Sections 4.1.4.1, 4.1.4.2 and 4.1.4.3 are collectively
referred to as the “Accrued Amounts”).
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Termination
by the Company without Cause or Termination by the Executive for
Good Reason .
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4.2.1
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Subject to requirements of this Section 4.2.1
and Section 5 hereof, the Company may terminate the
Executive’s employment at any time during the Term without
Cause and the Executive may terminate his employment with the
Company at any time during the Term for Good Reason. For
the purposes of this Agreement, “Good Reason” is
defined as (i) the assignment to the Executive of any duties
inconsistent with the Executive’s position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities that he has had during the 90 day period
immediately preceding the date of this Agreement; or (ii) any other
action by the Company which results in a reduction in the
compensation payable to the Executive, or the position, authority,
duties, other responsibilities, other than insubstantial and
inadvertent action which is promptly remedied by the Company after
receipt of notice thereof from the Executive; or (iii) the
Company’s requiring the Executive to be based at an office or
location other than that which the Executive is based at on the
date of this Agreement, except for travel responsibility required
in the performance of the Executive’s responsibilities; or
(iv) any purported termination by the Company of the
Executive’s employment with the Company otherwise than as
permitted by this Agreement, it being understood that any such
purported termina
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