Contract
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT (A) UNDER COVER OF A REGISTRATION STATEMENT UNDER SUCH ACT AND QUALIFICATION UNDER APPLICBLE STATE SECURITIES LAWS WHICH ARE EFFECTIVE AND CURRENT WITH RESPECT TO THIS WARRANT OR SUCH SHARES OF COMMON STOCK, AS THE CASE MAY BE, OR (B) PURSUANT TO THE WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO PERMA-FIX ENVIRONMENTAL SERVICES, INC. TO THE EFFECT THAT REGISTRATION AND QUALIFICATION ARE NOT REQUIRED UNDER APPLICABLE FEDERAL OR STATE SECUIRITES LAWS.
|
Warrant No. PPA0103 |
20,000 Shares |
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
WARRANT TO PURCHASE COMMON STOCK
VOID AFTER 5:00 P.M., EASTERN STANDARD TIME
ON
JULY 30, 2006
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the "Company"), hereby grants to Xxxx, Xxxx & Co., LLC and its permissible successors and assigns (the "Warrant Holder" or "Holder"), for value received, the right to purchase from the Company at any time commencing after the date upon which notice is received by the Holder that the shareholder of the Company have approved the exercise of the Warrants at the Per Share Exercise Price (the "Notice Date") until 5:30 p.m., Eastern Standard Time on July 30, 2006, up to an aggregate of twenty thousand (20,000) shares of the Company's common stock, par value $.001 per share (the "Common Stock") at an exercise price equal to $1.75 per share (the "Per Share Exercise Price"), subject to adjustment as provided below. This warrant and all warrants of like tenor which may be issued by the Company in exchange or substitution for, or upon the transfer or partial exercise of, this warrant are collectively referred to as the "Warrant." The shares of Common Stock issued upon the exercise of the Warrant are collectively referred to as the "Shares" or "Warrant Shares."
1. Background. On July 30, 2001, the Company completed a private placement (the "Offering") of a minimum of 1.5 million and a maximum of 4.4 million units ("Units"), each Unit consisting of one share of Common Stock, and one warrant to purchase on share of Common Stock as described in the Confidential Private Placement Memorandum, dated April 6, 2001, as amended by Amendment No. 1 to the Confidential Private Placement Memorandum dated June 15, 2001 (the "Offering Memorandum"). The initial Holder of the Warrant acted as a placement agent and assisted the Company in the placement of a portion of the Units. Pursuant to the terms of the Offering, the Company has granted this Warrant to the initial Holder as partial consideration for the Holder's services to the Company as placement agent.
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2. Exercise of Warrant. This Warrant may be exercised at any time commencing after the Notice Date and ending on July 30, 2006, at 5:00 p.m., Eastern Standard Time (the "Expiration Date"), subject to paragraph 8 below. Upon presentation and surrender of this Warrant, with the Election to Purchase or Assign form (the "Purchase Form") duly executed and completed, at the principal office of the Company at 0000 Xxxxxxxxx 00xx Xxxxx, Xxxxxxxxxxx, Xxxxxxx 00000-0000, together with cash or a cashier's or certified check payable to the Company in the amount of the Per Share Exercise Price, as may be adjusted as prescribed in paragraph 16 of the Agreement, multiplied by the number of Warrant Shares being purchased (the "Aggregate Exercise Price"), either the Company, or the Company's transfer agent, as the case may be, will deliver to the Warrant Holder hereof, shares of Common Stock which, in the aggregate, represent the number of Warrant Shares being purchased. All or less than all of the Warrants may be exercised and, in case of the exercise of less than all, the Company, upon surrender hereof, will deliver to the Warrant Holder a new Warrant or Warrants of like tenor and dated the date hereof entitling said Warrant Holder to purchase the number of Warrant Shares represented by this Warrant which have not been exercised or surrendered.
3. Exchange and Transfer. This Warrant, at any time prior to the exercise hereof, upon presentation and surrender to the Company, may be exchanged, alone or with other Warrants of like tenor registered in the name of the same Warrant Holder, for another Warrant of like tenor in the name of such Warrant Holder exercisable for the aggregate number of Warrant Shares represented by the Warrant(s) surrendered.
4. Rights and Obligations of Holder of this Warrant. The Holder of this Warrant will not, by virtue hereof, be entitled to any rights of a stockholder in the Company, either at law or in equity; provided, however, that if any Warrant representing shares of Common Stock or other securities is issued to the Holder hereof upon exercise of some or all of the Warrants evidenced by this Warrant, such Holder will, for all purposes, be deemed to have become the Holder of record of such Common Stock on the date on which this Warrant, together with a duly executed Purchase Form, was surrendered and payment of the Aggregate Exercise Price was made pursuant to the terms hereof, irrespective of the date of delivery of such share Warrant. The rights of the Holder of this Warrant are limited to those expressed herein and the Holder of this Warrant, by acceptance hereof, consents and agrees to be bound by, and to comply with, all of the provisions of this Warrant, including, without limitation, all of the obligations imposed upon the Warrant Holder contained in this Warrant. In addition, the Warrant Holder of this Warrant, by accepting the same, agrees that the Company may deem and treat the person in whose name this Warrant is registered on the books of the Company as the absolute, true and lawful owner for all purposes whatsoever, and the Company will not be affected by any notice to the contrary.
5. Issuance of Shares. As soon as practicable after full or partial exercise of this Warrant, the Company, at its expense, including, without limitation, any tax which may be payable in respect of the issuance thereof, will cause to be issued in the name of, and delivered to, the Holder of this Warrant, a certificate or certificates for the number of fully paid and nonassessable shares of Common Stock to which that Holder will be entitled upon such exercise. If the total Warrant Shares to be issued upon the exercise of this Warrant would result in the issuance of a fractional share of Common Stock, the Company will not be required to issue a fractional share, but rather the resulting fractional interest will be adjusted by payment in an amount, in cash, equal to the current market value of such fractional interest. The Warrant and the certificates representing the Warrant Shares will be executed on behalf of the Company by the manual or facsimile
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signature of the then Chairman or Vice Chairman of the Board of Directors or President or Vice President of the Company. All such certificates for Warrant Shares will bear a restrictive legend substantially in the form of the legend set forth in paragraph 6 of this Warrant.
6. Restriction on Transfer of Warrants or Warrant Shares. By acceptance of this Agreement, 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 the Holder and not with a view to the fractionalization and distribution thereof. The Holder, by acceptance of this Warrant, agrees that (a) no public distribution of Warrants or Warrant Shares will be made in violation of the provisions of the Act and the Rules and Regulations promulgated thereunder and (b) during such period as delivery of a prospectus with respect to Warrants or Warrant Shares may be required by the Act, no public distribution of Warrants or Warrant Shares will be made in a manner or on terms different from those set forth in, or without delivery of, a prospectus then meeting the requirements of Section 10 of the Act and in compliance with all applicable state securities laws. The Holder and each permitted transferee of the Holder further agrees that if any transfer or other distribution of any of the Warrants or Warrant Shares is proposed to be made by them other than by delivery of a prospectus meeting the requirements of Section 10 of the Act, such action will be taken only after receipt by the Company of an opinion of its counsel, or an opinion of counsel reasonably satisfactory to the Company, to the effect that the proposed transfer or other distribution will not be in violation of the Act or applicable state law. As a condition to the transfer of the Warrants, any transferee of the Warrants must deliver to the Company a written agreement to accept and be bound by all of the terms and conditions contained in this Warrant. Any Warrant Shares issued upon exercise of this Warrant will bear substantially the following legend: These
securities have not been registered under the Securities Act of 1933,
as
amended
(the "Act"), or qualified under applicable state securities laws, and
are
restricted
securities within the meaning of the Act. Such securities may not
be
sold
or transferred, except pursuant to a registration statement under such
Act
and
qualification under applicable state securities laws which are effective
and
current
with respect to such securities or pursuant to an opinion of
counsel
reasonably
satisfactory to the issuer of such securities that registration
and
qualification
are not required under applicable federal or state securities
laws
or
an exemption is available therefrom.
8. Taxes. The Company will pay all taxes attributable to the initial issuance of Warrant Shares upon exercise of this Warrant. The Company will not, however, be required to pay any tax which may be payable in respect to any transfer involved in any issue of Warrants or in the issue of any Warrants of Warrant Shares in the name other than that of the Holder upon the exercise of any Warrant, as the case may be.
9. Mutilated or Missing Warrants. If any Warrant is mutilated, lost, stolen or destroyed, the Company may, on such terms as to indemnity or otherwise as they it in its discretion impose (which will, in the case of a mutilated Warrant, include the surrender thereof), and upon receipt of evidence satisfactory to the Company of such mutilation, loss, theft or destruction, issue a substitute Warrant, respectively, of like denomination or
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tenor as the Warrant so mutilated, lost, stolen or destroyed. Applicants for substitute Warrants will comply with such other reasonable regulations and pay any reasonable charges as the Company may prescribe.
10. Subsequent Issue of Warrants. Subsequent to their original issuance, no Warrants will be reissued except (a) such Warrants issued upon transfer thereof in accordance with paragraph 6 hereof, (b) such Warrants issued upon any combination, split-up or exchange of Warrants pursuant to paragraph 13 hereof, (c) such Warrants issued in replacement of mutilated, destroyed, lost or stolen Warrants pursuant to paragraph 9 hereof, (d) Warrants issued upon the partial exercise of Warrants pursuant to paragraph 2 hereof, and (e) Warrants issued to reflect any adjustment or change in the Exercise Price or the number or kind of shares purchasable thereunder pursuant to paragraph 13 hereof.11. Reservation of Shares. For the purpose of enabling the Company to satisfy all obligations to issue Warrant Shares upon exercise of this Warrant, the Company will at all times reserve and keep available free from preemptive rights, out of the aggregate of its authorized but unissued shares, the full number of Shares which may be issued upon the exercise of this Warrant. The Company covenants all shares which will be so issuable upon exercise of this Warrant, will upon issue be fully paid and nonassessable by the Company and free from all taxes, liens, charges and security interests with respect to the issue thereof.
12. Registration Rights.
12.1 Registration.
The Company hereby agrees to use reasonable efforts to file a Form
S-3
Registration
Statement or such other suitable registration statement acceptable to
the
Company
(the "Registration Statement") with the Securities and Exchange
Commission
("SEC")
within 150 days following the completion of the Offering to register
the
Common
Stock issuable upon exercise of this Warrant (the "Registrable
Securities")
under
the Act, and the Company will use reasonable efforts to cause such
registration
to
become effective within 90 days following the filing of the Registration
Statement
with
the SEC and to remain effective for six months after the effective date of
the
Registration
Statement; provided that the Company will not file any such
Registration
Statement
within 60 days following the last Closing. The Company will in
connection
therewith
use reasonable efforts to also register and qualify the Registrable
Securities
under
the Blue Sky laws of such jurisdictions as the Company reasonably
determines
are
necessary. The obligation of the Company under this paragraph 12.1 will
be
limited
to one registration statement. The Company will pay the
expenses described
in
paragraph 12.2 for the Registration Statement filed pursuant to this
paragraph 12.1,
except
for underwriting discounts and commissions and legal fees of the
Holder,
which
shall be borne by such Holder.
12.2 Registration
Procedures. To effect the registration of Registrable Securities under the
Act
pursuant
to the provisions of paragraph 12.1 of this Agreement, the Company will:
12.2.1. Prepare
and file with the SEC the Registration Statement with respect to
the
Registrable
Securities within 150 days following the completion of the
Offering,
and
use reasonable efforts to cause such registration statement to
become
effective
within 90 days following its filing (but not less than 60 days after
the
completion
of the Offering) and cause the same to remain effective for
six
months
following its effective date;
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12.2.2. Prepare
and file with the SEC such amendments to the Registration
Statement
and
supplements to the prospectus contained therein and
post-effective
amendments
thereto as may be necessary to keep the Registration
Statement
effective
for a period of six months;
12.2.3. Furnish
to the Holder participating in such registration such reasonable
number
of
copies of the Registration Statement, preliminary prospectus, final
prospectus
and such other documents as may reasonably requested by such Holder;
12.2.4. Use
reasonable efforts to register or qualify the securities covered by
the
Registration
Statement under such state securities or Blue Sky laws of
such
jurisdictions
as the Company may reasonably determine as necessary
within
30
days following the original filing of the Registration Statement, except
that
the
Company will not for any purpose be required to execute a general
consent
as
to service of process or to qualify to do business as a foreign corporation
in
any
jurisdiction wherein it is not so qualified to do business; provided that
the
Company
will execute a Form U-2 Consent to Service of Process
where
required
by the Blue Sky laws of a particular state;
12.2.5 Notify
the Holder promptly when the Registration Statement has
become
effective
or when supplements thereto are filed;
12.2.6. Notify
the Holder promptly of any material requests by the SEC related to
the
Registration Statement's effectiveness;
12.2.7. Prepare
and file with the SEC, promptly upon the request of any Holder,
any
amendments
or supplements to such Registration Statement or prospectus
which,
in
the opinion of counsel for such Holder (and concurred in by counsel for
the
Company),
is required under the Act or the rules and regulations thereunder
in
connection
with the distribution of Common Stock by such Holder; and
12.2.8. Advise
such Holder, promptly after it will receive notice or obtain
knowledge
thereof,
of the issuance of any stop order by the SEC suspending the
effectiveness
of
such Registration Statement or the initiation or threatening of any proceeding
for
that
purpose and promptly use its reasonable efforts to prevent the issuance
of
any
stop order or to obtain its withdrawal if such stop order should be issued.
12.3 Expenses.
12.3.1. With
respect to the registration pursuant to paragraph 12.1 hereof, all fees,
costs
and
expenses of and incidental to such registration and public offering (as
specified
in
paragraph 12.3.2 below) in connection therewith will be borne by the
Company,
provided, however, that any Holder participating in such registration will bear
their
pro
rata share of the underwriting discount and commissions, if any, and
transfer
taxes.
12.3.2. The
fees, costs and expenses of registration to be borne by the Company
as
provided
in paragraph 12.3.1 are the following: all registration, filing, and
NASD
fees,
printing expenses, fees and disbursements of counsel and accountants
for
5
the
Company, and all legal fees and disbursements and other expenses of
complying
with
state securities or Blue Sky laws of any jurisdictions in which the securities
to
be
offered are to be registered or qualified (except as provided in 12.3.1
above).
Fees
and disbursements of counsel and accountants for the selling Holder and
any
other
expenses incurred by the selling Holder not expressly included above will
be
borne
by the selling Holder.
12.4. Indemnification.
12.4.1. The
Company will indemnify and hold harmless each Holder of
Registrable
Securities
which are included in the Registration Statement pursuant to
the
provisions
of paragraph 12.1 hereof, its directors and officers, and
any
underwriter
(as defined in the Act) for such Holder and each person, if
any,
who
controls such Holder or such underwriter within the meaning of the
Act,
from
and against, and will reimburse such Holder and each such
underwriter
and
controlling person with respect to, any and all loss, damage, liability,
cost
and
expense to which such Holder or any such underwriter or
controlling
person
may become subject under the Act or otherwise, insofar as
such
losses,
damages, liabilities, costs or expenses are caused by
any untrue
statement
or alleged untrue statement of any material fact contained in
such
Registration
Statement, any prospectus contained therein or any
amendment
or supplement
thereto, or arise out of or are based upon the omission
or
alleged omission
to state therein a material fact required to be stated
therein
or
necessary to make the statements therein, in light of the circumstances
in
which
they were made, not misleading; provided, however, that
the
Company
will not be liable in any such case to the extent that any such
loss,
damage,
liability, cost or expenses arises out of or is based upon an
untrue
statement
or alleged untrue statement or omission or alleged omission
so
made
in conformity with information furnished by such Holder,
such
underwriter
or such controlling person in writing specifically for use in
the
preparation
thereof.
12.4.2. Each
Holder of Registrable Securities included in a registration pursuant to
the
provisions
of paragraph 12.1 hereof will indemnify and hold harmless
the
Company,
its directors and officers, any controlling person and any
underwriter
from
and against, and will reimburse the Company, its directors and
officers,
any
controlling person and any underwriter with respect to, any and all
loss,
damage,
liability, cost or expense to which the Company or any
controlling
person
and/or any underwriter may become subject under the Act or
otherwise,
insofar
as such losses, damages, liabilities, costs or expenses are caused
by
any
untrue statement or alleged untrue statement of any material fact
contained
in
such Registration Statement, any prospectus contained therein or
any
amendment
or supplement thereto, or arise out of or are based upon
the
omission
or alleged omission to state therein a material fact required to
be
stated
therein or necessary to make the statements therein, in light of
the
circumstances
in which they were made, not misleading, in each case to
the
extent,
but only to the extent, that such untrue statement or alleged untrue
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statement
or omission or alleged omission was so made in reliance upon
and
in
strict conformity with written information furnished by or on behalf of
such
Holder
specifically for use in the preparation thereof.
12.4.3. Promptly
after receipt by an indemnified party of notice of the commencement
of
any
action involving the subject matter of the foregoing indemnity provisions,
such
indemnified
party will, if a claim thereof is to be made against the
indemnifying
party
pursuant to the provisions of said paragraph 12.4.1 or 12.4.2, as the
case
may
be, promptly notify the indemnifying party of the commencement
thereof;
but
the omission to so notify the indemnifying party will not relieve it from
any
liability which
it may have to any indemnified party otherwise than
hereunder.
In
case such action is brought against any indemnified party and it notifies
the
indemnifying party
of the commencement thereof, the indemnifying party
will
have
the right to participate in, and, to the extent that it may wish, jointly
with
any
other indemnifying party similarly notified, to assume the defense
thereof;
or,
if there is a conflict of interest which would prevent counsel for
the
indemnifying
party from also representing the indemnified party, the
indemnified
parties,
as a whole, have the right to select one separate counsel to
participate
in
the defense of such action on behalf of such indemnified parties. After
notice
from
the indemnifying parties to such indemnified party of their election so
to
assume
the defense thereof, the indemnifying parties will not be liable to
such
indemnified
parties pursuant to the provisions of said paragraph 12.4.1
or
12.4.2
for any legal or other expense subsequently incurred by such
indemnified
parties
in connection with the defense thereof other than reasonable costs
of
investigation,
unless (a) the indemnified parties will have employed counsel
in
accordance
with the provisions of the preceding sentence, (b) the
indemnifying
parties
will not have employed counsel to represent the indemnified
parties
within
a reasonable time after the notice of the commencement of the action
or
(c)
the indemnifying party has authorized, in writing, the employment of
counsel
for
the indemnified party at the expense of the indemnifying parties.
12.5. Form
S-3. The Company represents and Warrants that the Company is, as of
the
effective
date of this Agreement, eligible to use Form S-3 to register its
securities
for sale in a secondary offering of the Company's securities
for the account of
selling
shareholders;
provided any shareholder offering the Company's securities under
a
Form
S-3 registration statement must satisfy applicable prospectus
delivery
requirements
and other requirements of the Act.
13. Adjustments of Number and Kind of Shares Purchasable and Exercise Price. The number and kind of securities or other property purchasable upon exercise of a Warrant will be subject to adjustment from time to time upon the occurrence, after the date hereof, of any of the following events.
13.1 Distributions;
Dividends; Subdivisions; Combinations. If the Company (a) pays
a
dividend
in, or makes a distribution of, shares of capital stock on its
outstanding
Common
Stock; (b) subdivide its outstanding shares of Common Stock into a
greater
number
of shares; or (c) combines its outstanding shares of Common Stock into
a
7
smaller
number of shares, then the total number of shares of Common
Stock
purchasable
upon the exercise of each Warrant outstanding immediately prior to
such
event
will be adjusted so that the Holder of any Warrant will be entitled, upon
proper
exercise
of the Warrants, to receive at the same aggregate Exercise Price the
number
of
shares of capital stock (of one or more classes) which the Holder would
have
owned
or have been entitled to receive immediately following the happening of
any
of
the events described above had such Warrant been exercised in full
immediately
prior
to the record date with respect to such event. Any adjustment made
pursuant
to
this paragraph 12.1 will, in the case of a stock dividend or distribution,
become
effective
as of the applicable record date and, in the case of a subdivision
or
combination,
be made as of the effective date of the event. If, as a result of
an
adjustment
made pursuant to this paragraph, the Holder of any Warrant
becomes
entitled,
upon proper exercise of the Warrants, to receive shares of two or
more
classes
of capital stock of the Company, the Board of Directors of the
Company
(whose
determination will be conclusive and will be evidenced by a
Board
resolution)
will determine the allocation of the adjusted Exercise Price between
or
among
shares of such classes of capital stock.
13.2. Consolidation;
Merger. If the Company consolidates with, or merges into,
another
corporation
(other than a consolidation or merger which does not result in
any
reclassification
or change of the outstanding Common Stock), or in case of any sale
or
conveyance
to another corporation of the property of the Company as an entirety
or
substantially
as an entirety, the corporation formed by such consolidation or
merger
or
the corporation which will have acquired such assets, as the case may be,
will
execute
and deliver to the Holder a supplemental warrant agreement providing
that
the
Holder will, with respect to each Warrant then outstanding and held by
the
Holder,
have the right thereafter (until the expiration of such Warrant) to
receive,
upon
exercise of such Warrant, solely the kind and amount of shares of stock
and
other
securities and property (or cash) receivable upon such consolidation,
merger,
sale
or transfer by a holder of the number of shares of Common Stock of
the
Company
for which such Warrant might have been exercised immediately prior
to
such
consolidation, merger, sale or transfer. Such supplemental warrant
agreement
will
provide for adjustments which will be as nearly equivalent as may be
practicable
to
the adjustments provided in this paragraph. The provision of this paragraph
will
similarly
apply to successive consolidations, mergers, sales or transfers.
13.3. Reorganization;
Reclassification. If any capital reorganization or a reclassification
of
the
Common Stock (except as provided in paragraphs 12.1 and 12.2 above), will
be
effected, then, as a condition of such reorganization or reclassification,
lawful
and
adequate
provision will be made whereby the Holder, upon exercise of
Warrants,
will
thereafter have the right to purchase and receive, upon the basis and upon
the
terms
and conditions specified herein and in the Warrants and, in substitution
for
the
Common Stock to which the Holder would have become entitled
upon
exercise
immediately prior to such reorganization or reclassification, the
shares
(of
any class or classes) or other securities or property of the Company (or
cash)
that
the Holder would have been entitled to receive at the same aggregate
Exercise
Price
upon such reorganization or reclassification if the Warrants had been
exercised
immediately
prior to the record date with respect to such event; and in any such case,
8
appropriate
provision (as determined by the Board of Directors of the
Company,
whose
determination will be conclusive and will be evidenced by a certified
Board
resolution
filed with the Warrant Agent) will be made for the application of
this
paragraph
with respect to the rights and interests thereafter of the Holder
(including
but
not limited to the allocation of the Exercise Price between or among
shares
of
classes of capital stock), to the end that this paragraph (including the
adjustments
of
the number of shares of Common Stock or other securities purchasable
and
the
Exercise Price of the Warrants) will thereafter be reflected, as nearly
as
reasonably
practicable, in all subsequent exercises of the Warrants for any
shares
or
securities or other property (or cash) thereafter deliverable upon the exercise
of
the
Warrants.
13.4. Certification
of Adjustment. Whenever the number of shares of Common Stock
or
other
securities purchasable upon exercise of a Warrant is adjusted as provided
in
this
paragraph, the Company will provide the Holder a Warrant signed by
the
Chairman
of the Board or the President or a Vice President of the Company
setting
forth
the number and kind of securities or other property purchasable upon
exercise
of
a Warrant, as so adjusted, stating that such adjustments in the number or
kind
of
shares or other securities or property conform to the requirements of
this
paragraph,
and setting forth a brief statement of the facts accounting for
such
adjustments.
13.5. Change
of Warrant. Irrespective of any adjustments in the number or kind of
shares
issuable
upon exercise of this Warrant, the Warrants theretofore or thereafter
issued
may
continue to express the same price and number and kind of shares as are
stated
in
the similar Warrants initially issuable pursuant to this Warrant.
13.6. Certification.
The Company may retain a firm of independent public accountants
of
recognized
standing, which may be the firm regularly retained by the
Company,
selected by
the Board of Directors of the Company or the Executive
Committee
of
the Board, to make any computation required under this paragraph, and
a
Warrant
signed by such firm will, in the absence of fraud or gross negligence,
be
conclusive
evidence of the correctness of any computation made under
this
paragraph.
13.7. "Common
Stock". For the purpose of this paragraph, the term "Common Stock"
will
mean
(a) the Common Stock or (b) any other class of stock resulting from
successive
changes
or reclassifications of such Common Stock consisting solely of changes in
par
value,
or from par value to no par value, or from no par value to par value. If, at
any
time
as a result of an adjustment made pursuant to this paragraph, the Holder of
any
Warrant
thereafter surrendered for exercise will become entitled to receive any
shares
of
capital stock of the Company other than shares of Common Stock, thereafter
the
number
of such other shares so receivable upon exercise of any Warrant will be
subject
to
adjustment from time to time in a manner and on terms as nearly equivalent
as
practicable
to the provisions with respect to the Common Stock contained in
this
paragraph,
and all other provisions of this Warrant, with respect to the Common
Stock,
will
apply on like terms to any such other shares.
13.8. Reduction
of Exercise Price. The Company may, from time to time and to the
extent
permitted
by law, reduce the exercise price of the Warrant by any amount for a
period
9
of
not less than 20 days. If the Company so reduces the exercise price of the
Warrant,
it
will give not less than 15 days notice of such decrease, which notice may be in
the
form
of a press release, and will take such other steps as may be required
under
applicable
law in connection with any offers or sales of securities at the reduced
price.
13.9. No
Adjustment of Exercise Price in Certain Cases. No adjustment of the exercise
price
will
be made if the amount of the adjustment is less than two cents per Warrant
Share,
provided, however, that in such case any adjustment that would otherwise be
required
then
to be made will be carried forward and will be made at the time of, and
together
with,
the next subsequent adjustment which, together with any adjustment so
carried
forward,
will amount to at least two cents per Warrant Share.
14. Reduction of Exercise Price Below Par Value. Before taking any action that would cause an adjustment pursuant to paragraph 10 of this Warrant reducing the portion of the exercise price required to purchase one share of capital stock below the then par value (if any) of a share of such capital stock, the Company will use its best efforts to take any corporate action which, in the opinion of its counsel, may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such capital stock.
15. No Fractional Warrants. The Company will not be required to issue fractions of Warrants upon the reissue of Warrants or any adjustments as described in paragraph 14, or otherwise; but the Company in lieu of issuing any such fractional interest, will adjust the fractional interest by payment to the Registered Holder an amount, in cash, equal to the current market value of any such fraction or interest.
16. Agreement of Holder. Every Holder by accepting the same consents and agrees with the Company, and with every other holder of a Warrant, respectively, that (a) the Warrant is transferable on the registry books of the Company only upon the terms and conditions set forth in this Warrant; and (b) the Company may deem and treat the person in whose name the Warrant is registered as the absolute owner of the Warrant (notwithstanding any notation of ownership or other writing thereon made by anyone other than the Company) for all purposes whatsoever, and the Company will not be affected by any notice to the contrary.
17. Holder's Representations and Warranties. The Holder hereby acknowledges, represents and warrants to, and agrees with, the Company and its affiliates as follows:
17.1. Investment
Intent. The Holder is acquiring the Warrant, and will acquire the
Warrant
Shares,
for the Holder's own account as principal, and not as nominee or agent,
for
investment
purposes only, and not with a view to, or for, resale, distribution
or
fractionalization
thereof, in whole or in part, and no other person has a direct or
indirect
beneficial
interest in the Warrant or the Warrant Shares. Further, the Holder does
not
have
any contract, undertaking, agreement or arrangement with any person to
sell,
transfer
or grant participation to such person or to any third person, with respect
to
this
Warrant or the Warrant Shares.
17.2. Authority.
The Holder has full power and authority to enter into this Agreement,
the
execution
and delivery of this Agreement has been duly authorized, if applicable,
and
this
Agreement constitutes a valid and legally binding obligation of the
undersigned.
17.3. Investment
Representations. The Holder acknowledges the Holder's
understanding
that
the issuance of the Warrant and the Warrant Shares is intended to be
exempt
10
from
registration under the Act by virtue of Section 4(2) and/or the provisions
of
Regulation
D promulgated thereunder. In furtherance thereof, the Holder
represents
and
warrants to, and agrees with, the Company and its
affiliates as follows:
(a) The
Holder realizes that the basis for the exemption may not be present
if,
notwithstanding such representations, the Holder has in mind merely acquiring
this
Warrant
or the Warrant Shares for a fixed or determinable period in
the
future. The Holder does not have any such intention.
(b) The
Holder has the financial ability to bear the economic risk of the
Holder's
investment,
has adequate means for providing for current needs and
personal
contingencies
and has no need for liquidity with respect to an investment
in the Company.
(c) The
Holder has such knowledge and experience in financial and business
matters
as
to be capable of evaluating the merits and risks of the investment in the
Warrants and
the
Warrant Shares. If other than an individual, the Holder also represents it has
not
been
organized
as a trust for the purpose of acquiring the Warrants or the Warrant Shares.
18. Notices. All notices, requests, consents, and other communications hereunder will be in writing and will be deemed to have been duly made and sent when delivered or mailed by registered or certified mail, return-receipt requested:
If
to the
Company: Perma-Fix
Environmental Services,
Inc.
1940
Northwest 67th
Place
Gainesville,
Florida
32653
Attention:
Xx. Xxxxx X.
Xxxxxxxxxx
With
a copy
to: Xxxxx
X. Xxxxxxxxx,
Esq.
Xxxxxx
& Xxxxxxx, A Professional
Corporation
One
Leadership
Square
211
X. Xxxxxxxx, Suite
1700
Oklahoma
City, Oklahoma
73102
If
to the
Holder:
Xxxx, Xxxx & Co., LLC
380
Madison Avenue
New
York, NY 10017
Attention:
Xxxxx X. Rock
22. Successors and Assigns. This Warrant will be binding upon and will inure to the benefit of the parties hereto and their respective successors and assigns.
23. Headings. The descriptive headings of the paragraphs of this Warrant have been inserted for reference only and will not be a part of this Warrant.
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24. Supplements and Amendments. The Company may from time to time supplement or amend this Agreement without the approval of the Holder in order to cure any ambiguity or to correct or supplement any provision contained herein which may be defective or inconsistent with any other provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company may deem necessary or desirable, provided that such supplements or amendments do not substantially alter the rights and obligations of the Holder.
25. Termination. This Agreement will terminate at the close of business on the Expiration Date or such earlier date upon which this Warrant has been exercised in its entirety; provided, however, that if exercise of the Warrants is suspended pursuant to the terms of this Warrant and such suspension continues past the Expiration Date, this Agreement will terminate at the close of business on the business day immediately following the expiration of such suspension.
26. Benefits of this Agreement. Nothing in this Agreement will be construed to give any person or corporation other than the Company and the Holder any legal or equitable right, remedy or claim under this Agreement; but this Agreement will be for the sole and exclusive benefit of the Company and the Holder.
27. Counterparts. This Agreement may be executed in any number of counterparts, each of such counterparts will for all purposes be deemed to be an original and all such counterparts will together constitute but one and the same instrument.
28. Integration. As of the date hereof, this Agreement contains the entire and only agreement, understanding, representation, condition, warranty or covenant between the parties hereto with respect to the matters herein, supersedes any and all other agreements between the parties hereto relating to such matters, and may be modified or amended only by a written agreement signed by both parties hereto.
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed, manually or by one of its officers thereunto duly authorized.
Dated as of July 30, 2001.
PERMA-FIX
ENVIRONMENTAL SERVICES, INC.,
a
Delaware
corporation
By: /s/
Xxxxx Xxxxxxxxxx
Xx.
Xxxxx X.
Xxxxxxxxxx,
President
and Chief Executive
Officer
(the
"Company")
Xxxx,
Xxxx & Co., LLC
By: /s/
Xxxxx X.
Rock
Xxxxx
X. Rock, Managing Director
(the "Holder")
12
FORM OF ELECTION TO PURCHASE OR ASSIGN
Election to Purchase
The undersigned hereby irrevocably elects to exercise the right, represented by the foregoing Warrant, to receive _____________ shares of the Common Stock. In payment of such shares, the undersigned herewith:
_____ tenders payment for such shares to the
order of Perma-Fix Environmental Services,
Inc.
in
the amount of $________________ in accordance with the terms of the
Warrant
Agreement.
Dated: _______________ Signature __________________________
Address ___________________________
Assignment
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _______________________ the foregoing Warrants and all rights evidenced thereby, and does irrevocably constitute and appoint _________________, attorney, to transfer said Warrants on the books of Perma-Fix Environmental Services, Inc.
Dated: _______________ Signature __________________________
Address ____________________________
Partial Assignment
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers _________________ Warrants and all rights evidenced under such part of the foregoing Warrants unto _____________________________________ and does irrevocably constitute and appoint __________________, attorney, to transfer said Warrants on the books of Perma-Fix Environmental Services, Inc.
Dated: _______________ Signature __________________________
Address ____________________________
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