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.
Warrant for the Purchase of Shares of Common Stock
No. JWG:06-30-98 150,000 shares of
Common Stock
FOR VALUE RECEIVED, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), hereby certifies that JW
GENESIS FINANCIAL CORPORATION ("JW Genesis"), 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 Daylight Savings Time on June 30, 2001 (the
"Exercise Period"), up to one hundred fifty thousand (150,000)
fully paid and nonassessable shares of the Company's common stock,
par value $.001 per share ("Common Stock"), at a purchase price of
$1.875 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. This Warrant and all warrants
of like tenor which may be issued by the Company in exchange or
substitution for, or upon transfer or partial exercise of, this
Warrant are hereinafter collectively referred to as the "Warrants";
the shares of Common Stock issuable and issued upon exercise of the
Warrants are hereinafter collectively referred to as the "Warrant
Shares" and the price payable for each of the Warrant Shares upon
exercise is hereinafter referred to as the "Warrant Price".
Exercise of Warrant and Shareholder Approval
1.1 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 8 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.
1.2 In connection with the transactions pursuant to which the
Company is issuing this Warrant, the Company is also issuing (i) to
RBB Bank Aktiengesellschaft ("RBB Bank") certain shares of a new
series of Preferred Stock designated as Series 10 Class J
Convertible Preferred Stock ("Preferred Stock"), which Preferred
Stock is convertible into the Company's Common Stock pursuant to
the terms thereof, and certain warrants to RBB Bank for the
purchase by RBB Bank of up to 350,000 shares of Common Stock ("RBB
Warrants") pursuant to the terms of that certain Private Securities
Subscription Agreement, dated June 30, 1998 between the Company and
RBB Bank ("RBB Subscription Agreement"), and (ii) a certain warrant
to Xxxxxx X. Xxxx ("Prag Warrant") providing for the purchase of up
to an aggregate of 625,000 shares of Common Stock pursuant to the
terms of that certain Placement and Consulting Agreement, dated
June 30, 1998 between the Corporation and the Holder ("Liviakis
Consulting Agreement"), (iii) a certain warrant to Liviakis
Financial Communications, Inc. ("Liviakis Warrant") providing for
the purchase of up to an aggregate of 1,875,000 shares of Common
Stock pursuant to the terms of the Liviakis Consulting Agreement,
and (iv) a certain warrant to Fontenoy Investments ("Fontenoy
Warrant") providing for the purchase of up to an aggregate of
350,000 shares of Common Stock.
If (i) the aggregate number of shares of Common Stock issued
by the Company as a result of (a) conversion of the Preferred
Stock, (b) payment of dividends accrued on the Preferred Stock, (c)
exercise of the RBB Warrants, (d) exercise of this Warrant, (e)
exercise of the Prag Warrant, (f) exercise of the Liviakis Warrant,
and (g) exercise of the Fontenoy Warrant exceeds 2,388,347 shares
of Common Stock (which equals 19.9% of the outstanding shares of
Common Stock of the Company as of the date of this Warrant), (ii)
RBB Bank has converted or elects to convert any of the then
outstanding shares of Preferred Stock pursuant to the terms of the
Preferred Stock at a Conversion Price (as defined in the terms of
the Preferred Stock) less than $1.875 ($1.875 being the market
value per share of Common Stock as quoted on the NASDAQ as of the
close of business on June 30, 1998), other than if the Conversion
Price is less than $1.875 solely as a result of the anti-dilution
provisions of the Preferred Stock, then, notwithstanding anything
in this Warrant to the contrary, thereafter the Company shall not
issue any shares of Common Stock as a result of the exercise of
this Warrant unless and until the Company shall have obtained
approval of its shareholders entitled to vote on the transactions
referenced to in the RBB Subscription Agreement and the Liviakis
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Consulting Agreement pursuant to requirements of subparagraphs
(25)(H)(i)d, and (iv) and (v) of Rule 4310 of the NASDAQ
Marketplace Rules ("Shareholder Approval").
If Shareholder Approval is required as set forth in the above
paragraph, the Company shall take all practical steps to obtain
such Shareholder Approval within ninety (90) days of the event
triggering the need for Shareholder Approval (the "90 Day Period").
The Holder shall, and the Company shall use its best efforts to
cause its officers and directors to, vote all shares of Common
Stock of the Company over which they have voting control in favor
of such Shareholder Approval. If the Company is required to obtain
such Shareholder Approval within the 90 Day Period, then, the
Company agrees that the Exercise Period shall be extended for that
number of additional days equal to the number of days in the period
of time beginning with the day after the expiration of the 90 Day
Period and ending as of the day such Shareholder Approval is
obtained.
In addition, if the Company is required to obtain such
Shareholder Approval within the 90 Day Period but is unable to
obtain such Shareholder Approval within such 90 Day Period and
thereafter the Holder notifies the Company in writing of its
intention to exercise this Warrant for all or a portion of the
Warrant Shares pursuant to the requirements of this Warrant
("Notification of Intention") before such Shareholder Approval is
obtained, with such Notification of Intention specifying the exact
number of Warrant Shares that the Holder intends to purchase
("Warrant Shares to be Purchased") pursuant to the requirements of
this Warrant, then the Company shall have an additional sixty (60)
days ("Additional 60 Days") from receipt by the Company from the
Holder of such Notification of Intention. If the Company has not
obtained the Shareholder Approval within the Additional 60 Days,
then the Holder shall have the option to terminate this Warrant as
to the Warrant Shares to be Purchased, and, in the event of such
termination, the Company shall pay to the Holder an amount
("Payment Amount") determined by subtracting from (a) an amount
determined by multiplying the fair market value (as defined below)
per share of Common Stock by the number of Warrant Shares to be
Purchased, (b) the Aggregate Exercise Price of the Warrant Shares
to be Purchased. If the Holder elects to terminate this Warrant as
to the Warrant Shares to be Purchased for the Payment Amount
pursuant to the terms of this paragraph ("Election"), the Holder
shall deliver to the Company written notice ("Election Notice") of
the Election, and the Company shall have fifteen (15) days from
receipt of such Election Notice to pay the Payment Amount to the
Holder either in cash or by delivering to the Holder the Company's
promissory note payable to the order of the Holder in the principal
amount of the Payment Amount. If the Company elects to pay the
Payment Amount by delivery to the Holder such promissory note, such
promissory note shall be in the principal amount of the Payment
Amount and shall bear an annual rate of interest equal to the prime
rate announced from time to time by the Chase Manhattan Bank plus
1%, with the principal payable in thirty-six (36) equal monthly
installments plus accrued and unpaid interest, and the first
monthly installment beginning the first full month after issuance
of such promissory note. Such promissory note shall be in form
reasonably satisfactory to the Holder. For the purpose of this
paragraph, "fair market value" per share of the Company's Common
Stock shall be the average closing price of a share of the
Company's Common Stock as reported on the National Association of
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Securities Dealers Automated Quotation System ("NASDAQ"), or if the
Common Stock is not listed on the NASDAQ but is listed for trading
on a national securities exchange the average closing price of a
share of Common Stock as reported on such national securities
exchange, for the five (5) trading days immediately prior to the
Company's receipt of the Election Notice from the Holder.
Notwithstanding anything herein to the contrary, this Warrant as to
the Warrant Shares to be Purchased shall terminate in all respects
as of the date of receipt by the Company of the Holder's Election
Notice.
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 nonassessable, 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, at any time or from time to time after the date of
this Warrant, the Company shall distribute pro rata to
all of the holders of its then outstanding shares of
Common Stock (a) securities, other than shares of Common
Stock or stock options, or (b) property, other than cash,
without payment therefor, then, and in each such case,
the Holder, upon the exercise of this Warrant, shall be
entitled to receive the securities and property which the
Holder would hold on the date of such exercise if, on the
date of this Warrant, the Holder had been the holder of
record of the number of shares of the Common Stock
subscribed for upon such exercise and, during the period
from the date of this Warrant to and including the date
of such exercise, had retained such shares and the
securities and properties receivable by the Holder during
such period.
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3.2 If, at any time or from time to time after the date of
this Warrant, the Company shall (a) pay a dividend on its
Common Stock in shares of Common Stock, (b) subdivide its
outstanding shares of Common Stock into a greater number
of shares, (c) combine its outstanding shares of Common
Stock into a smaller number of shares, or (d) issue by
reclassification of its Common Stock any shares of any
other class of capital stock of the Company, the number
of Warrant Shares and the Warrant Price in effect
immediately prior to such event shall be adjusted so
that, upon exercise of this Warrant, the Holder shall be
entitled to purchase under this Warrant, without
additional consideration therefor, the number of shares
of Common Stock or other capital stock of the Company
which he would have owned or been entitled to purchase
immediately following the happening of any of the events
described above in this subsection 3.2 had this Warrant
been exercised and the Holder become the holder of record
of the Warrant Shares purchased upon such exercise
immediately prior to the record date fixed for the
determination of stockholders entitled to receive such
dividend or distribution or the effective date of such
subdivision, combination or reclassification at a Warrant
Price equal to the aggregate consideration which the
Holder would have had to pay for such Warrant Shares
immediately prior to such event divided by the number of
Warrant Shares the Holder is entitled to receive
immediately after such event. An adjustment made
pursuant to this subsection 3.2 shall become effective
immediately after the record date in the case of a
dividend or distribution and shall become effective
immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a
result of an adjustment made pursuant to this subsection
3.2, the Holder of this Warrant thereafter surrendered
for exercise shall become entitled to receive shares of
two or more classes of capital stock or shares of Common
Stock and any other class of capital stock of the
company, the Board of Directors (whose determination
shall be conclusive and shall be described in a written
notice to all holders of the Warrants promptly after such
adjustment) shall determine the allocation of the
adjusted Warrant Price between or among shares of such
classes of capital stock or shares of Common Stock and
such other class of capital stock.
3.3 In case of any consolidation or merger to which the
Company is a party, other than a merger or consolidation
in which the Company is the continuing or surviving
corporation, or in case of any sale or conveyance to
another entity of all or substantially all of the
property of the Company as an entirety or substantially
as an entirety, the Holder of this Warrant shall have the
right thereafter, upon exercise of this Warrant, to
receive the kind and amount of securities, cash or other
property which he would have owned or been entitled to
receive immediately after such consolidation, merger,
sale or conveyance had this Warrant been exercised
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
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Section 3 with respect to the rights and interests of the
Holder of this Warrant to the end that the provisions of
this Section 3 thereafter shall be correspondingly
applicable, as nearly as may reasonably be, to such
securities and other property. Notice of any such
consolidation, merger, sale or conveyance, and of said
provisions so proposed to be made, shall be mailed to the
Holder not less than thirty (30) days prior to such
event. A sale of all, or substantially all, of the
assets of the Company for a consideration consisting
primarily of securities shall be deemed a consolidation
or merger for the foregoing purposes.
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 nonassessable, 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 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 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
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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.
8. 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 8) 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: JW Genesis Financial Corporation
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Vice Chairman
Fax No.: (000) 000-0000
9. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
10. 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.
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IN WITNESS WHEREOF, this Warrant has been signed by the
parties hereto this 30th day of June, 1998.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By /s/ Xxxxx Xxxxxxxxxx
__________________________
Xx. Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
(the "Company")
JW GENESIS FINANCIAL
CORPORATION
By
___________________________
Xx. Xxxx Xxxxx
Vice Chairman
(the "Holder")
tsb warrants/11-12-97
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SUBSCRIPTION
The undersigned, ________________________, pursuant to the
provisions of the foregoing Warrant, hereby agrees to subscribe for
and purchase ____________________ shares of the Common Stock of
PERMA-FIX ENVIRONMENTAL SERVICES, INC., covered by said Warrant,
and makes payment therefor in full at the price per share provided
by said Warrant pursuant to the terms of said Warrant.
Dated:____________________ Signature_______________________
Address_______________________
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_________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED, _________________________________ hereby
sells, assigns and transfers unto _________________________________
the right to purchase _________ shares of the Common Stock of
PERMA-FIX ENVIRONMENTAL SERVICES, INC. by the foregoing Warrant and
all rights evidenced thereby, and does irrevocably constitute and
appoint _________________________, attorney, to transfer that part
of said Warrant on the books of PERMA-FIX ENVIRONMENTAL SERVICES,
INC.
Dated:____________________ Signature_______________________
Address_________________________
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