PERMA-FIX ENVIRONMENTAL SERVICES, INC.
COMMON STOCK WARRANT
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THIS WARRANT
UNDER THE SECURITIES ACT OF 1933 AND QUALIFICATION UNDER
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL
SATISFACTORY OF THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED AND THAT THE SALE OR DISPOSITION OF THIS WARRANT WILL
NOT SUBJECT THE COMPANY TO ANY LIABILITY UNDER APPLICABLE STATE
SECURITIES LAWS.
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE FLORIDA
SECURITIES AND INVESTOR PROTECTION ACT AND ARE BEING SOLD IN
RELIANCE UPON AN EXEMPTION CONTAINED IN SECTION 517.061(11) (9)
THEREOF. THESE SHARES MAY NOT BE RE-OFFERED FOR SALE OR RESOLD
IN THE STATE OF FLORIDA UNLESS THE SHARES ARE REGISTERED OR THE
TRANSACTION IS EXEMPT UNDER SAID ACT. ANY SALE MADE PURSUANT TO
SUCH SUBJECTION IS VOIDABLE AT THE OPTION OF THE PURCHASER WITHIN
THREE DAYS AFTER THE FIRST TENDER OF CONSIDERATION IS MADE BY THE
PURCHASER TO THE ISSUER OR ITS AGENT, OR WITHIN THREE DAYS AFTER
THE AVAILABILITY OF THE PRIVILEGE IS COMMUNICATED TO THE
PURCHASER, WHICHEVER OCCURS LATER.
No. W - 1
Amended 1/22/97
Acquisition Warrant
Warrant to Purchase 206,701 Shares of Common Stock
(subject to adjustment)
WARRANT TO PURCHASE COMMON STOCK
of
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Void after February 10, 1997
This certifies that, for value received, X. X. Xxxxx
Investment Banking Corp. or registered assigns ("Holder") is
entitled, subject to the terms set forth below, to purchase from
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), shares of the Common Stock of the Company, as
constituted on the date hereof (the "Warrant Issue Date"), upon
surrender hereof, at the principal office of the Company referred
to below, with the subscription form attached hereto duly
executed, and simultaneous payment therefor in lawful money of
the United States or otherwise as hereinafter provided, at the
Exercise Price as set forth in Section 2 below. The number,
character and Exercise Price of such shares of Common Stock are
subject to adjustment as provided below. The term "Warrant" as
used herein shall include this Warrant, which is one of a series
of warrants issued for the Common Stock of the Company, and any
warrants delivered in substitution or exchange therefor as
provided herein.
This Warrant is issued in connection with the transactions
described in Section 1.1 of that certain Note and Purchase
Agreement between the Company and the Purchasers described
therein, dated as of February 10, 1992 (the "Purchase
Agreement"). The holder of this warrant is subject to certain
restrictions set forth in the Purchase Agreement and shall be
entitled to certain rights and privileges set forth in the
Purchase Agreement. This Warrant is one of the Warrants referred
to as the "Warrants" in the Purchase Agreement.
1. Term of Warrant. Subject to the terms and conditions
set forth herein, this Warrant shall be exercisable, in whole or
in part, during the term commencing on the Warrant Issue Date and
ending at 5:00 p.m., local time in Atlanta, Georgia, on February
10, 1997, and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this
Warrant may be exercised shall be $3.02 per share of Common
Stock, as adjusted from time to time pursuant to Section 11
hereof.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant
are exercisable by the Holder in whole or in part, but not
for less than 10,000 shares at a time (or such lesser number
of shares which may then constitute the maximum number
purchasable; such number being subject to adjustment as
provided in Section 11 below), at any time, or from time to
time, during the term hereof as described in Section 1
above, by the surrender of this Warrant and the Notice of
Exercise annexed hereto duly completed and executed on
behalf of the Holder, at the office of the Company (or such
other office or agency of the Company as it may designate by
notice in writing to the Holder at the address of the Holder
appearing on the books of the Company), upon payment (i) in
cash or by check acceptable to the Company, (ii) by
cancellation by the Holder of indebtedness of the Company to
the Holder, or (iii) by a combination of (i) and (ii), of
the purchase price of the shares to be purchased.
(b) This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the
date of its surrender for exercise as provided above, and
the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the
close of business on such date. As promptly as practicable
on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the
same a certificate or certificates for the number of shares
issuable upon such exercise. In the event that this Warrant
is exercised in part, the Company at its expense will
execute and deliver a new warrant of like tenor exercisable
for the number of shares for which this Warrant may then be
exercised.
(c) This Warrant shall be deemed to have been
exercised, and the Holder agrees to take any and all actions
necessary to cause the exercise of the same, within thirty
(30) days after receiving written notice from Xxxxx Xxxxxx,
or the successors or assigns of the warrants initially
issued to him, of the election to exercise all such warrants
of the Company initially issued to him pursuant to the
Purchase Agreement.
4. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the
exercise of this Warrant. In lieu of any fractional share to
which the Holder would otherwise be entitled, the Company shall
make a cash payment equal to the Exercise Price multiplied by
such fraction.
5. Replacement of Warrant. On receipt of evidence
reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, on delivery of an indemnity agreement
reasonably satisfactory in form and substance to the Company or,
in the case of mutilation, on surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in
lieu of this Warrant, a new warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11
of this Warrant, the Holder shall not be entitled to vote or
receive dividends or be deemed the holder of Common Stock or any
other securities of the Company that may at any time be issuable
on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such,
any of the rights of a stockholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value, or change of stock to no par value,
consolidation, merger, conveyance, or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
as provided herein.
7. Transfer of Warrant.
(a) Warrant Register. The Company will maintain a
register (the "Warrant Register") containing the names and
addresses of the Holder or Holders. Any Holder of this
Warrant or any portion thereof may change his address as
shown on the Warrant Register by written notice to the
Company requesting such change. Any notice or written
communication required or permitted to be given to the
Holder may be delivered or given by mail to such Holder as
shown on the Warrant Register and at the address shown on
the Warrant Register. Until this Warrant is transferred on
the Warrant Register of the Company, the Company may treat
the Holder as shown on the Warrant Register as the absolute
owner of this Warrant for all purposes, notwithstanding any
notice to the contrary.
(b) Warrant Agent. The Company may, by written notice
to the Holder, appoint an agent for the purpose of
maintaining the Warrant Register referred to in Section 7(a)
above, issuing the Common Stock or other securities then
issuable upon the exercise of this Warrant, exchanging this
Warrant, replacing this Warrant, or any or all of the
foregoing. Thereafter, any such registration, issuance,
exchange, or replacement, as the case may be, shall be made
at the office of such agent.
(c) Transferability and Nonnegotiability of Warrant.
This Warrant may not be transferred or assigned in whole or
in part without compliance with the terms and conditions of
the Purchase Agreement and all applicable federal and state
securities laws by the transferor and the transferee
(including the delivery of investment representation letters
and legal opinions reasonably satisfactory to the Company,
if such are requested by the Company). Subject to the
provisions of this Warrant with respect to compliance with
the Purchase Agreement, Securities Act of 1933, as amended
(the "Act") and applicable state securities laws, title to
this Warrant may be transferred by endorsement (by the
Holder executing the Assignment Form annexed hereto) and
delivery in the same manner as a negotiable instrument
transferable by endorsement and delivery.
(d) Exchange of Warrant Upon a Transfer. On surrender
of this Warrant for exchange, properly endorsed on the
Assignment Form and subject to the provisions of this
Warrant with respect to compliance with the Act and with the
limitations on assignments and transfers described or
otherwise contained in this Section 7, the Company at its
expense shall issue to or on the order of the Holder a new
warrant or warrants of like tenor, in the name of the Holder
or as the Holder (on payment by the Holder of any applicable
transfer taxes) may direct, for the number of shares
issuable upon exercise hereof.
(e) Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance
hereof, acknowledges that this Warrant and the shares
of Common Stock to be issued upon exercise hereof or
conversion thereof are being acquired solely for the
Holder's own account and not as a nominee for any other
party, and for investment, and that the Holder will not
offer, sell or otherwise dispose of this Warrant or any
shares of Common Stock to be issued upon exercise
hereof or conversion thereof except under circumstances
that will not result in a breach of Holder's
obligations under the Purchase Agreement or a violation
of the Act or, any state securities laws. Upon
exercise of this Warrant, the Holder shall, if
requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the shares of Common
Stock so purchased are being acquired solely for the
Holder's own account and not as a nominee for any other
party, for investment, and not with a view toward
distribution or resale.
(ii) This Warrant and all shares of Common Stock
issued upon exercise hereof or conversion thereof shall
be stamped or imprinted with a legend in substantially
the following form (in addition to any legend required
by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS.
SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED
HEREUNDER OR THEREUNDER MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SUCH LAWS. COPIES OF THE AGREEMENT
COVERING THE PURCHASE OF THESE WARRANTS AND RESTRICTING
THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD HEREOF TO
THE SECRETARY OF THE COMPANY AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE COMPANY.
8. Reservation of Stock. The Company covenants that
during the term this Warrant is exercisable, the Company will
reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of Common
Stock upon the exercise of this Warrant and, from time to time,
will take all steps necessary to amend its Certificate of
Incorporation (the "Certificate") to provide sufficient reserves
of shares of Common Stock issuable upon exercise of the Warrant.
The Company further covenants that all shares that may be issued
upon the exercise of rights represented by this Warrant, upon
exercise of the rights represented by this Warrant and payment of
the Exercise Price, all as set forth herein, will be free from
all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein). The Company
agrees that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this
Warrant.
9. Notices.
(a) Whenever the Exercise Price or number of shares
purchasable hereunder shall be adjusted pursuant to Section
11 hereof, the Company shall issue a certificate signed by
its Chief Financial Officer setting forth, in reasonable
detail, the event requiring the adjustment, the amount of
the adjustment, the method by which such adjustment was
calculated, and the Exercise Price and number of shares
purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be
mailed (by first-class mail, postage prepaid) to the Holder
of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of
its Common Stock (or other stock or securities at the time
receivable upon the exercise of this Warrant) for the
purpose of entitling them to receive any dividend or other
distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to
receive any other right, or
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all
of the assets of the Company to another corporation, or
(iii) of any voluntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will mail or cause to be
mailed to the Holder or Holders a notice specifying, as the case
may be, (A) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or
(B) the date on which such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such stock
or securities at the time receivable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common
Stock (or such other stock or securities) for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be mailed at least 15 days prior to
the date therein specified.
(c) All such notices, advices and communications shall
be deemed to have been received (i) in the case of personal
delivery, on the date of such delivery and (ii) in the case
of mailing, on the third business day following the date of
such mailing.
10. Amendments.
(a) Any term of this Warrant may be amended with the
written consent of the Company and the holders of warrants
representing not less than eighty percent (80%) of the
shares of Common Stock issuable upon exercise of any and all
of the then outstanding warrants issued pursuant to the
Purchase Agreement (collectively, the "Common Stock
Warrants"), even without the consent of the Holder. Any
amendment effected in accordance with this Section 10 shall
be binding upon each holder of any of the Common Stock
Warrants, each future holder of all such Common Stock
Warrants, and the Company; provided, however, that no
special consideration or inducement may be given to any such
holder in connection with such consent that is not given
ratably to all such holders, and that such amendment must
apply to all such holders equally and ratably in accordance
with the number of shares of Common Stock issuable upon
exercise of their Common Stock Warrants. The Company shall
promptly give notice to all holders of Common Stock Warrants
of any amendment effected in accordance with this Section
10.
(b) No waivers of, or exceptions to, any term,
condition or provision of this Warrant, in any one or more
instances, shall be deemed to be, or construed as, a further
or continuing waiver of any such term, condition or
provision.
11. Adjustments. The Exercise Price and the number of
shares purchasable hereunder are subject to adjustment from time
to time as follows:
11.1 Adjustments to Exercise Price for Certain Diluting
Issues.
( a ) Special Definitions. For purposes of this
Section 11, the following definitions apply:
(i) "Options" shall mean rights, options, or
warrants to subscribe for, purchase or otherwise
acquire either Common Stock or Convertible Securities
(defined below).
(ii) "Convertible Securities" shall mean any
evidences of indebtedness, shares (other than Common
Stock) or other securities convertible into or
exchangeable for Common Stock.
( iii ) "Additional Shares of Common Stock" shall
mean all shares of Common Stock issued (or, pursuant to
Section 11.1(c), deemed to be issued) by the Company
after the Warrant Issue Date, other than shares of
Common Stock issued or issuable:
(A) to officers, directors or employees of, or
consultants to, the Company pursuant to stock
option or stock purchase plans or agreements on
terms approved by the Board of Directors;
provided, however, that the total number of such
shares do not exceed 1,500,000 shares of Common
Stock (such amounts representing the maximum
number of authorized shares that can be issued
under the Company's 1991 Performance Equity Plan)
together with such additional number of shares of
Common Stock that may be approved by a majority of
the Compensation Committee of the Company's Board
of Directors (the composition of which may be the
subject of agreements with one or more holders of
the Warrants); or
(B) for which adjustment of the Exercise Price
is made pursuant to Sections 11.3 or 11.4.
(b) No Adjustment of Exercise Price. Any provision
herein to the contrary notwithstanding, no adjustment in the
Exercise Price shall be made in respect of the issuance of
Additional Shares of Common Stock unless the consideration
per share (determined pursuant to Section 11.1(e) hereof)
for an Additional Share of Common Stock issued or deemed to
be issued by the Company is less than the Exercise Price in
effect on the date of, and immediately prior to, such issue.
(c) Deemed Issue of Additional Shares of Common Stock.
In the event the Company at any time or from time to time
after the Warrant Issue Date shall issue any Options or
Convertible Securities or shall fix a record date for the
determination of holders of any class of securities then
entitled to receive any such Options or Convertible
Securities, then the maximum number of shares (as set forth
in the instrument relating thereto without regard to any
provisions contained therein designed to protect against
dilution) of Common Stock issuable upon the exercise of such
Options or, in the case of Convertible Securities and
Options therefor, the conversion or exchange of such
Convertible Securities, shall be deemed to be Additional
Shares of Common Stock issued as of the time of such issue
or, in case such a record date shall have been fixed, as of
the close of business on such record date, provided that in
any such case in which Additional Shares of Common Stock are
deemed to be issued:
(i) no further adjustments in the Exercise Price
shall be made upon the subsequent issue of Convertible
Securities or shares of Common Stock upon the exercise
of such Options or conversion or exchange of such
Convertible Securities;
(ii) if such Options or Convertible Securities by
their terms provide, with the passage of time or
otherwise, for any increase or decrease in the
consideration payable to the Company, or decrease or
increase in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange
thereof, the Exercise Price computed upon the original
issue thereof (or upon the occurrence of a record date
with respect thereto), and any subsequent adjustments
based thereon, shall, upon any such increase or
decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such
Options or the rights of conversion or exchange under
such Convertible Securities (provided, however, that no
such adjustment of the Exercise Price shall affect
Common Stock previously issued upon conversion of this
Warrant);
(iii) upon the expiration of any such Options or
any rights of conversion or exchange under such
Convertible Securities which shall not have been
exercised, the Exercise Price computed upon the
original issue thereof (or upon the occurrence of a
record date with respect thereto), and any subsequent
adjustments based thereon, shall, upon such expiration,
be recomputed as if:
(A) in the case of Convertible Securities or
Options for Common Stock the only Additional
Shares of Common Stock issued were the shares of
Common Stock, if any, actually issued upon the
exercise of such Options or the conversion or
exchange of such Convertible Securities and the
consideration received therefor was the
consideration actually received by the Company for
the issue of all such Options, whether or not
exercised, plus the consideration actually
received by the Company upon such exercise, or for
the issue of all such Convertible Securities which
were actually converted or exchanged, plus the
additional consideration, if any, actually
received by the Company upon such conversion or
exchange and
(B) in the case of Options for Convertible
Securities only the Convertible Securities, if
any, actually issued upon the exercise thereof
were issued at the time of issue of such Options,
and the consideration received by the Company for
the Additional Shares of Common Stock deemed to
have been then issued was the consideration
actually received by the Company for the issue of
all such Options, whether or not exercised, plus
the consideration deemed to have been received by
the Company (determined pursuant to Section 11.1
upon the issue of the Convertible Securities with
respect to which such Options were actually
exercised;
(iv) no readjustment pursuant to clause (ii) or
(iii) above shall have the effect of increasing the
Exercise Price to an amount which exceeds the lower of
(A) the Exercise Price on the original adjustment date,
or (B) the Exercise Price that would have resulted from
any issuance of Additional Shares of Common Stock
between the original adjustment date and such
readjustment date;
(v) in the case of any Options which expire by
their terms not more than 30 days after the date of
issue thereof, no adjustment of the Exercise Price
shall be made until the expiration or exercise of all
such Options, whereupon such adjustment shall be made
in the same manner provided in clause (3) above.
(d) Adjustment of Exercise Price Upon Issuance of
Additional Shares of Common Stock. In the event the
Company, at any time after the Warrant Issue Date shall
issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued
pursuant to Section 11.1(c)) without consideration or for a
consideration per share less than the Exercise Price in
effect on the date of and immediately prior to such issue,
then and in such event, the Exercise Price shall be reduced,
concurrently with such issue, to a price (calculated to the
nearest cent) determined by multiplying such Exercise Price
by a fraction, the numerator of which shall be the number of
shares of Common Stock outstanding immediately prior to such
issue plus the number of shares of Common Stock which the
aggregate consideration received by the Company for the
total number of Additional Shares of Common Stock so issued
would purchase at such Exercise Price in effect immediately
prior to such issuance, and the denominator of which shall
be the number of shares of Common Stock outstanding
immediately prior to such issue plus the number of such
Additional Shares of Common Stock so issued. For the
purpose of the above calculation, the number of shares of
Common Stock outstanding immediately prior to such issue
shall be calculated on a fully diluted basis, as if all
Convertible Securities had been fully converted into shares
of Common Stock immediately prior to such issuance and any
outstanding warrants, options or other rights for the
purchase of shares of stock or convertible securities had
been fully exercised immediately prior to such issuance (and
the resulting securities fully converted into shares of
Common Stock, if so convertible) as of such date, but not
including in such calculation any additional shares of
Common Stock issuable with respect to Convertible
Securities, or outstanding options, warrants or other rights
for the purchase of shares of stock or convertible
securities, solely as a result of the adjustment of the
respective Exercise Prices (or other conversion ratios)
resulting from the issuance of Additional Shares of Common
Stock causing such adjustment.
(e) Determination of Consideration. For purposes of
this Section 11.1, the consideration received by the Company
for the issue of any Additional Shares of Common Stock shall
be computed as follows:
(i) Cash and Property. Such consideration shall:
(A) insofar as it consists of cash, be computed
at the aggregate amount of cash received by the
Company excluding amounts paid or payable for
accrued interest or accrued dividends;
(B) insofar as it consists of property other
than cash, be computed at the fair value thereof
at the time of such issue, as determined in good
faith by the Board; and
(C) in the event Additional Shares of Common
Stock are issued together with other shares or
securities or other assets of the Company for
consideration which covers both, be the proportion
of such consideration so received, computed as
provided in clauses (A) and (B) above, as
determined in good faith by the Board.
(ii) Options and Convertible Securities. The
consideration per share received by the Company for
Additional Shares of Common Stock deemed to have been
issued pursuant to Section 11.1(c), relating to Options
and Convertible Securities shall be determined by
dividing:
(A) the total amount, if any, received or
receivable by the Company as consideration for the
issue of such Options or Convertible Securities,
plus the minimum aggregate amount of additional
consideration (as set forth in the instruments
relating thereto, without regard to any provision
contained therein designed to protect against
dilution) payable to the Company upon the exercise
of such Options or the conversion or exchange of
such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise
of such Options for Convertible Securities and the
conversion or exchange of such Convertible
Securities by
(B) the maximum number of shares of Common
Stock (as set forth in the instruments relating
thereto, without regard to any provision contained
therein designed to protect against the dilution)
issuable upon the exercise of such Options or
conversion or exchange of such Convertible
Securities.
11.2 Merger, Sale of Assets, etc. If at any time while this
Warrant, or any portion thereof, is outstanding and unexpired
there shall be (a) a reorganization (other than a combination,
reclassification, exchange or subdivision of shares otherwise
provided for herein), (b) a merger or consolidation of the
Company with or into another corporation in which the Company is
not the surviving entity, or a reverse triangular merger in which
the Company is the surviving entity but the shares of the
Company's capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property,
whether in the form of securities, cash, or otherwise, or (c) a
sale or transfer of the Company's properties and assets as, or
substantially as, an entirety to any other person, then, as a
part of such reorganization, merger, consolidation, sale or
transfer, lawful provision shall be made so that the holder of
this Warrant shall thereafter be entitled to receive upon
exercise of this Warrant, during the period specified herein and
upon payment of the Exercise Price then in effect, the number of
shares of stock or other securities or property of the successor
corporation resulting from such reorganization, merger,
consolidation, sale or transfer that a holder of the shares
deliverable upon exercise of this Warrant would have been
entitled to receive in such reorganization, consolidation,
merger, sale or transfer if this Warrant had been exercised
immediately before such reorganization, merger, consolidation,
sale or transfer, all subject to further adjustment as provided
in this Section 11. The foregoing provisions of this Section
11.2 shall similarly apply to successive reorganizations,
consolidations, mergers, sales and transfers and to the stock or
securities of any other corporation that are at the time
receivable upon the exercise of this Warrant. If the per-share
consideration payable to the holder hereof for shares in
connection with any such transaction is in a form other than cash
or marketable securities, then the value of such consideration
shall be determined in good faith by the Company's Board of
Directors. In all events, appropriate adjustment (as determined
in good faith by the Company's Board of Directors) shall be made
in the application of the provisions of this Warrant with respect
to the rights and interests of the Holder after the transaction,
to the end that the provisions of this Warrant shall be
applicable alter that event, as near as reasonably may be, in
relation to any shares or other property deliverable alter that
event upon exercise of this Warrant.
11.3 Reclassification, etc. If the Company, at any time
while this Warrant, or any portion thereof, remains outstanding
and unexpired by reclassification of securities or otherwise,
shall change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such
change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such
reclassification or other change and the Exercise Price therefor
shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
11.4 Split, Subdivision or Combination of Shares. If the
Company at any time while this Warrant, or any portion thereof,
remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this
Warrant exist, into a different number of securities of the same
class, the Exercise Price for such securities shall be
proportionately decreased in the case of a split or subdivision
or proportionately increased in the case of a combination.
11.5 Certificate as to Adjustments. Upon the occurrence of
each adjustment or readjustment pursuant to this Section 11, the
Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to
each Holder of this Warrant a certificate setting forth such
adjustment or readjustment and showing in detail the Acts upon
which such adjustment or readjustment is based. The Company
shall, upon written request, at any time, of any such Holder,
furnish or cause to be furnished to such Holder a like
certificate setting forth: (a) such adjustments and
readjustments; (b) the Exercise Price at the time in effect; and
(c) the number of shares and the amount, if any, of other
property that at the time would be received upon the exercise of
the Warrant.
12. Registration Rights. Upon exercise of this Warrant,
the Holder shall have and be entitled to exercise, together with
all other holders of Registrable Securities possessing
registration rights under that certain Investors' Rights
Agreement, of even date herewith, between the Company and the
parties who have executed the counterpart signature pages thereto
or are otherwise bound thereby (the "Investors' Rights
Agreement"), the rights of registration granted under the
investors' Rights Agreement to Registrable Securities (with
respect to the shares issued on exercise of this Warrant). By
its receipt of this Warrant, Xxxxxx agrees to be bound by the
Investors' Rights Agreement upon exercise of this Warrant as a
party thereto.
13. Miscellaneous.
13.1 Nonwaiver. No course of dealing or any delay or
failure to exercise any right, power or remedy hereunder on the
part of the holder hereof shall operate as a waiver of or
otherwise prejudice such holder's rights, powers or remedies.
13.2 Successors and Assigns. This Warrant and the rights
evidenced hereby shall inure to the benefit of and be binding
upon the successors and assigns of the Company, the holder hereof
and shall be enforceable by any such holder.
13.3 Modification and Severability. If, in any action
before any court or agency legally empowered to enforce any
provision contained herein, any provision hereof is found to be
unenforceable, then such provision shall be deemed modified to
the extent necessary to make it enforceable by such court or
agency. If any such provision is not enforceable as set forth in
the preceding sentence, the unenforceability of such provision
shall not affect the other provisions of this Warrant, but this
Warrant shall be construed as if such unenforceable provision had
never been contained herein.
13.4 Integration. This Warrant replaces all prior
agreements, supersedes all prior negotiations and constitutes the
entire agreement of the parties with respect to the transactions
contemplated herein.
13.5 Governing Law. This Warrant shall be governed by the
internal laws (as opposed to conflicts of laws provisions) of the
State of Delaware.
IN WITNESS WHEREOF, PERMA-FIX ENVIRONMENTAL SERVICES, INC.
has caused this Warrant to be executed by its officers thereunto
duly authorized.
Dated: February 10, 1992
HOLDER: PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
/s/ Xxxxx X. Xxxxxxxxxx
X. X. Xxxxx Investment By:___________________________
Banking Corp. Title: President
NOTICE OF EXERCISE
To: PERMA-FIX ENVIRONMENTAL SERVICES, INC.
(1) The undersigned hereby elects to purchase ______ shares
of Common Stock of PERMA-FIX ENVIRONMENTAL SERVICES, INC.,
pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price for such shares in full.
(2) In exercising this Warrant, the undersigned hereby
confirms and acknowledges that the shares of Common Stock or the
Common Stock to be issued upon conversion thereof are being
acquired solely for the account of the undersigned and not as a
nominee for any other party, and for investment, and that the
undersigned will not offer, sell or otherwise dispose of any such
shares of Common Stock or Common Stock except under circumstances
that will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing
said shares of Common Stock in the name of the undersigned or in
such other name as is specified below:
______________________________
( Name )
______________________________
(Name)
(4) Please issue a new Warrant for the unexercised portion
of the attached Warrant in the name of the undersigned or in such
other name as is specified below:
______________________________
( Name )
__________________________ ______________________________
( Date ) (Signature)
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee
named below all of the rights of the undersigned under the within
warrant, with respect to the number of shares of Common Stock (or
Common Stock) set forth below:
Name of Assignee Address No. of Shares
________________ ____________________ _____________
and does hereby irrevocably constitute and appoint Attorney
__________________________ to make such transfer on the books of
PERMA-FIX ENVIRONMENTAL SERVICES, INC., maintained for the
purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof,
the Assignee acknowledges that this Warrant and the shares of
stock to be issued upon exercise hereof or conversion thereof are
being acquired for investment and that the Assignee will not
offer, sell or otherwise dispose of this Warrant or any shares of
stock to be issued upon exercise hereof or conversion thereof
except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended, or any state
securities laws. Assignee does hereby acknowledge and agree that
it is subject to and bound by the terms and conditions of the
Warrant and the Purchase Agreement as the successor to the
Investor under such agreements and that the transfer made hereby
is being made in conformity with the transfer limitations
described in the Warrant and Purchase Agreement. Further, the
Assignee has acknowledged that upon exercise of this Warrant, the
Assignee shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that the shares of stock
so purchased are being acquired for investment and not with a
view toward distribution or resale.
Dated:_______________________
______________________________
Signature of Holder
______________________________
Signature of Assignee
