Contract
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT (i) UNDER COVER OF A REGISTRATION STATEMENT UNDER THE ACT WHICH IS EFFECTIVE AND CURRENT WITH RESPECT TO THIS WARRANT OR SUCH SHARES OF COMMON STOCK, AS THE CASE MAY BE, OR (ii) PURSUANT TO THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER SUCH ACT IS NOT REQUIRED WITH RESPECT TO SUCH SALE OR TRANSFER.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Common Stock Purchase Warrant Certificate
No. 04-01-99A
Dated: April 1, 1999
Two Hundred and Forty Thousand (240,000) Warrants
to Purchase Two Hundred and Forty Thousand (240,000)
Shares of Perma-Fix Environmental Services, Inc.
Common Stock, $.001 Par Value Per Share
VOID AFTER 5:00 P.M., UNITED STATES EASTERN STANDARD TIME
on
April 1, 2003
FOR VALUE RECEIVED, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), hereby certifies that Strategic Growth International, Inc.,
or any permitted assignee thereof (the "Holder"), is entitled to purchase from the Company, at any
time in whole, or from time to time in part, during the period commencing from the date of this
Warrant and ending at 5:00 p.m. Eastern Standard Time on April 1, 2003 (the "Exercise Period"),
up to two hundred and forty thousand (240,000) fully paid and non-assessable shares of the
Company's common stock, par value $.001 per share ("Common Stock"), at a purchase price of
$1.20 per share; provided, however, that the number of shares of Common Stock to be issued and
delivered by the Company upon any exercise of this Warrant and the purchase price to be paid for
each share shall be subject to adjustments from time to time as hereinafter provided in this Warrant.
1. Exercise of Warrant and Shareholder Approval. This Warrant may be exercised, as a whole at any one time or in part from time to time, during the Exercise Period, by the Holder by the surrender of this
Warrant (with the subscription form at the end hereof duly executed by the Holder) at the address set forth in Section 9 hereof, together with payment in the manner hereinafter set forth, of an amount equal to the Warrant Price in effect at the date of such exercise multiplied by the total number of Warrant Shares to be purchased upon such exercise. Payment for Warrant Shares shall be made by a cashier's or certified check or money order, payable in New York Clearing House funds, to the order of the Company. If this Warrant is exercised in part, such exercise shall be for a whole number of Warrant Shares and the Holder shall be entitled to receive a new Warrant covering the number of Warrant Shares in respect of which this Warrant has not been exercised. Upon any exercise and surrender of this Warrant, the Company (a) will issue and deliver to the Holder a certificate or certificates in the name of the Holder for the largest whole number of Warrant Shares to which the Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of any fractional Warrant Share to which the Holder otherwise might be entitled, cash in an amount equal to the fair value of such fractional share (determined in such reasonable manner as the Board of Directors of the Company shall determine), and (b) will deliver to the Holder such other securities and properties which the Holder may be entitled to receive upon such exercise, or the proportionate part thereof if this Warrant is exercised in part, pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares.
2.1 The Company covenants and agrees that all Warrant Shares which may be acquired
by
the Holder under this Warrant will, when issued and upon delivery, be duly and
validly
authorized and issued, fully paid and non-assessable, and free from all
restrictions on the
sale or transfer thereof, except such restrictions as may be imposed
under applicable
federal and state securities laws and applicable exchange on which
the Common Stock
may be listed, and free and clear of all preemptive rights.
2.2 The Company covenants and agrees that it will, at all times, reserve and keep available
an authorized number of shares of its Common Stock and other applicable securities
sufficient to permit the exercise in full of this Warrant; and, if at the time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect the
exercise of this Warrant, the Company will take such corporate action at its next annual
meeting of stockholders as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose, including, without limitation, engaging in reasonable efforts to obtain the
requisite stockholder approval of any necessary amendment to its Certificate of
Incorporation.
3. Protection Against Dilution.
3.1 If the Company at any time, or from time to time, while this Warrant Certificate is
outstanding shall declare or pay, without consideration, any dividend on the Common
Stock payable in Common Stock, or shall effect a subdivision of the outstanding
shares of Common Stock into a greater number of shares of Common Stock (by stock
split, reclassification or otherwise than by payment of a dividend in Common Stock
or in
any right to acquire Common Stock), or if the outstanding shares of Common
Stock shall
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be combined or consolidated, by reclassification or otherwise, into a
lesser number of
shares of Common Stock, then the number of shares of Common
Stock issuable upon
the exercise of this Warrant Certificate or the Exercise Price
shall be appropriately
adjusted such that immediately after the happening of any such
event, the proportionate
number of shares of Common Stock issuable immediately
prior to the happening of such
event shall be the number of shares of Common Stock
issuable subsequent to the
happening of such event.
3.2 In case of any consolidation or merger of the Company in which the Company is not
the
surviving entity, or in case of any sale or conveyance by the Company to another
entity of
all or substantially all of the property of the Company as an entirety or
substantially as an
entirety, the Holder shall have the right thereafter, upon exercise
of this Warrant, to
receive the kind and amount of securities, cash or other property
which the Holder
would have owned or been entitled to receive immediately after
such consolidation,
merger, sale or
conveyance had this Warrant been exercised in
full immediately prior
to the effective date of such consolidation, merger, sale or
conveyance, and in any
such case, if necessary,
appropriate adjustment shall be made
in the application
thereafter of the provisions of this
Section 3.2 with respect to the
rights and interests
of the Holder to the end that the provisions of this Section 3.2
thereafter shall be
correspondingly applicable, as nearly as may be, to such securities
and other
property.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of the Common Stock
represented by each and every certificate for Warrant Shares delivered upon the exercise
of
this Warrant shall, at the time of such delivery, be validly issued and outstanding, fully
paid
and non-assessable, and not subject to preemptive rights, and the Company will take
all such
actions as may be necessary to assure that the par value or stated value, if any, per
share of
the Common Stock is at all times equal to or less than the Warrant Price. The
Company
further covenants and agrees that it will pay, when due and payable, any and
all federal and
state stamp, original issue or similar taxes which may be payable in respect
of the issuance
of any Warrant Share or certificate therefor.
5. Investment Representation and Transferability.
5.1 By acceptance hereof, the Holder represents and warrants that this Warrant is being
acquired,
and all Warrant Shares to be purchased upon the exercise of this Warrant
will be acquired, by
the Holder solely for the account of such Holder, and not with
a
view to the fractionalization and distribution thereof, and will not be sold or
transferred except in accordance with the
applicable provisions of the Securities
Act
of 1933, as amended (the "Act") and the rules and regulations of the Commission
promulgated thereunder. The Holder covenants and agrees that this Warrant and
the
Warrant Shares will not be sold or transferred except under cover of a
Registration
Statement under the Act which the Commission has declared effective
and the
applicable state securities laws and which is current with respect to such Warrant
and
the Warrant Shares or pursuant to an opinion of counsel reasonably satisfactory to
the
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Company that registration under the Act and the applicable state securities laws
is not
required in connection with such sale or transfer. Any Warrant Shares issued
upon
exercise of this Warrant shall bear the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and are restricted
securities
within the meaning thereof. Such securities may not be
sold or transferred
except pursuant to a Registration Statement under
such Act and applicable
state securities laws which is effective and
current with respect to such
securities or pursuant to an opinion of
counsel reasonably satisfactory to the
issuer of such securities that
such sale or transfer is exempt from the registration
requirements of
such Act.
5.2 The Holder agrees that the Company may refuse to permit the sale, transfer or
disposition
of this Warrant or any of the Warrant Shares unless there is in effect a
Registration
Statement under the Act and any applicable state securities law covering
such transfer
or the Holder
furnishes an opinion of counsel, reasonably satisfactory
to counsel for
the Company, to the effect that such registration is not required.
5.3 The Holder understands that under the Act, this Warrant and the Warrant Shares must
be
held indefinitely unless they are subsequently registered under the Act or unless
an
exemption
from such registration is available with respect to any proposed transfer
or
disposition of the
Warrant or the Warrant Shares.
6. Loss, etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss,
theft,
destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to
the
Company, if lost, stolen or destroyed, and upon surrender and cancellation of this
Warrant,
if mutilated, and upon reimbursement of the Company's reasonable incidental
expenses, the
Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and
denomination.
7. Warrant Holder Not Shareholder. This Warrant shall not be deemed to confer upon the
Holder any right to vote or to consent to or receive notice as a shareholder of the Company,
as such, in respect of any matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
Exercise Period, the Company proposes to register any of its equity securities under the Act
(other than a registration statement (i) on Form S-8 or any successor form or in connection with
any employee or director welfare, benefit or compensation plan, (ii) on Form S-4 or any
successor form to such form or in connection with any merger, consolidation, acquisition or
exchange offer, (iii) in connection with a rights offering exclusively to existing holders of
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Common
Stock,
(iv) in connection
with an offering solely to employees of the
Company
or its subsidiaries, or (v) relating to a transaction pursuant to Rule 145 of the Act),
it will
give written notice by registered mail, at least thirty (30) days prior to the filing of
each
such registration statement, to the Holder of its intention to do so. If Holder notifies the
Company within twenty (20) days after receipt of any such notice of its desire to include
any Warrant shares held by such Holder or Warrant shares
underlying Warrants held by
such Holder in such proposed registration statement, the Company shall afford any
such Holder of the opportunity to have any such Warrant shares held by such Holder
or Warrant shares
underlying Warrants held by such Holder, registered under such
registration statement
(sometimes referred to herein as the "Piggyback Registration").
Notwithstanding the provisions of this Section 8, the Company shall have the right at any
time
after it shall have given written notice pursuant to this Section 8 (irrespective of whether
a
written request for inclusion of any such securities shall have been made) to elect not to file
any
such proposed registration statement, or to withdraw the same after the filing but prior
to the
effective date thereof.
If a Piggyback Registration is an underwritten primary registration on behalf of the
Company,
and the managing underwriters advise the Company in writing that in their
reasonable opinion
based upon market conditions the number of securities requested to be
included in such
registration exceeds the number that can be sold in such offering of would
impair the pricing of
such offering, the Company will include in such registration (i) first,
the securities the Company
proposes to sell, (ii) second, up to the full number of applicable
Common Stock requested to
be included in such registration by holders of Common Stock
with prior or superior piggyback
registration rights, (iii) third, the number of applicable total
Warrant shares requested to be
included in such registration, pro rata among the Holders of
the Warrant Agreements on the
basis of the number of shares requested by such Holders of
the Warrant Agreements to be
included and which, in the opinion of the managing
underwriter, can be sold without adversely
affecting the price range or probability of success
of such offering, and (iv) fourth, other
securities to be included in such registration.
9. Notices. Except as otherwise specified herein to the contrary, all notices, requests, demands
and
other communications required or desired to be given hereunder shall only be effective
if given
in writing, by hand or fax, by certified or registered mail, return receipt requested,
postage
prepaid, or by U. S. Express Mail service, or by private overnight mail service (e.g.,
Federal
Express). Any such notice shall be deemed to have been given (a) on the business
day actually
received if given by hand or by fax, (b) on the business day immediately
subsequent to mailing,
if sent by U.S. Express Mail service or private overnight mail service,
or (c) five (5) business
days following the mailing thereof, if mailed by certified or registered
mail, postage prepaid,
return receipt requested, and all such notices shall be sent to the
following addresses (or to
such other address or addresses as a party may have advised the
other in the manner
provided in this Section 9) to:
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If to the Company: Perma-Fix Environmental Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
Fax No.: (000) 000-0000
If to the Holder: Strategic Growth International, Inc.
000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxxx
Fax No.: (000) 000-0000
10. Headings. The headings of this Warrant have been inserted as a matter of convenience and
shall not affect the construction hereof.
11. Applicable Law. This Warrant shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to the principles of conflicts of law
thereof.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed, manually or by facsimile, by one of its officers thereunto duly authorized.
Dated as of April 1, 1999
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By____________________________________
Xx. Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
(the "Company")
STRATEGIC GROWTH INTERNATIONAL, INC.
By____________________________________
Xxxx Xxxxxxxxxx
(the "Holder")
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SUBSCRIPTION
The undersigned, ________________________, pursuant to the provisions of the attached Warrant, hereby irrevocably elects to subscribe for and purchase ____________________ shares of the Common Stock of PERMA-FIX ENVIRONMENTAL SERVICES, INC., covered by said Warrant, and hereby tenders payment by delivery of $________________in cash or by certified or official bank check for the exercise price per share required under the Warrant which accompanies this notice.
Dated:______________________________________
Signature:___________________________________
Address:____________________________________
Tax Identification or
Social Security Number________________________
ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby sells, assigns and transfers unto _________________________________ the foregoing Warrant and all rights evidenced thereby, and does irrevocably constitute and appoint _________________________, attorney, to transfer said Warrant on the books of PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Dated:______________________________________
Signature:___________________________________
Address:____________________________________
Tax Identification or
Social Security Number________________________
PARTIAL ASSIGNMENT
Dated:______________________________________
Signature:___________________________________
Address:____________________________________
Tax Identification or
Social Security Number________________________
