Contract
NEITHER THIS WARRANT NOR ANY SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AND QUALIFICATION IN EFFECT WITH RESPECT THERETO UNDER THE SECURITIES ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF PERMA-FIX ENVIRONMENTAL SERVICES, INC.'S COUNSEL THAT SUCH REGISTRATION AND QUALIFICATION IS NOT REQUIRED UNDER APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM IS AVAILABLE.
NOTWITHSTANDING THE FOREGOING, THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE TERMS SET FORTH IN THAT CERTAIN LETTER AGREEMENT BETWEEN THE HOLDER HEREOF AND THE COMPANY, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE.
COMMON STOCK PURCHASE WARRANT CERTIFICATE
7-01-9
Dated: July 9, 2001
1,839,405 Warrants
to Purchase 1,839,405
Shares of Perma-Fix Environmental Services, Inc.
Common Stock, $.001 Par Value Per Share
VOID AFTER 5:00 P.M., UNITED STATES EASTERN DAYLIGHT SAVINGS TIME
on
July 9, 2006
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation (the "Company"), hereby certifies that Capital Bank Grawe Gruppe, organized under the laws of Austria, and its permissible successors and assigns (the "Warrant Holder" or "Holder"), for value received, is entitled to purchase from the Company at any time after July 9, 2001, until 5:00 p.m., Eastern Daylight Savings Time on July 9, 2006, up to an aggregate of one million eight hundred thirty-nine thousand four hundred five (1,839,405) shares (the "Shares" or "Warrant 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").
1. Cash Exercise of Warrants. Upon presentation and surrender of this Common Stock Purchase Warrant Certificate ("Warrant Certificate" or "this Certificate"), with the attached Form of Election to Purchase 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 multiplied by the number of Warrant Shares being purchased (the "Aggregate Exercise Price"), the Company, or the Company's transfer agent, as the case may be, shall deliver to the Warrant Holder hereof, certificates of Common Stock which, in the aggregate, represent the number of Warrant Shares being purchased. The purchase rights represented by each Warrant Certificate are exercisable at the option of the Holder thereof, in whole or in part (but not as to fractional shares of the Common Stock underlying the Warrants). Warrants may be exercised to purchase all or part of the shares of Common Stock represented thereby. In the case of the purchase of less than all the shares of Common Stock purchasable under any Warrant Certificate, the Company shall cancel said Warrant Certificate upon the surrender thereof and shall execute and deliver a new Warrant Certificate of like tenor for the balance of the shares of Common Stock purchasable thereunder.
2. Definition of Market Price. As used herein, the phrase "Market Price" at any date shall be deemed to be the average closing bid quotation of the Company's Common Stock (i) as reported on the National Association of Securities Dealers SmallCap Quotation market ("NASDAQ") for the last five (5) trading days, or (ii) if the Common Stock is not traded on NASDAQ, the average closing price as listed on a national securities exchange for the last five (5) trading days, or (iii) if no longer traded on NASDAQ or listed on a national securities exchange, as determined in good faith by resolution of the Board of Directors of the Company, based on the best information available to it.
3. Exchange and Transfer. This Certificate, at any time prior to the exercise hereof, upon presentation and surrender to the Company, may be exchanged, alone or with other certificates of like tenor registered in the name of the same Warrant Holder, for another Certificate or Certificates of like tenor in the name of such Warrant Holder exercisable for the aggregate number of Warrant Shares as the Certificate or Certificates surrendered.
4. Rights and Obligations of Warrant Holder of this Certificate. The Holder of this Certificate shall not, by virtue hereof, be entitled to any rights of a shareholder in the Company, either at law or in equity; provided, however, that in the event any certificate 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 Certificate, such Holder shall, for all purposes, be deemed to have become the Holder of record of such Common Stock on the date on which this Certificate, together with a duly executed Form of Election to Xxxxxxxx, was surrendered and payment of the Aggregate Exercise Price was made pursuant to the terms
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hereof, irrespective of the date of delivery of such share certificate. The rights of the Holder of this Certificate are limited to those expressed herein and the Holder of this Certificate, by his acceptance hereof, consents and agrees to be bound by, and to comply with, all of the provisions of this Certificate, including, without limitation, all of the obligations imposed upon the Warrant Holder contained in this Warrant Certificate. In addition, the Warrant Holder, by accepting this Certificate, agrees that the Company may deem and treat the person in whose name this Certificate is registered on the books of the Company as the absolute, true and lawful owner of this Certificate for all purposes whatsoever, and the Company shall not be affected by any notice to the contrary.
5. Common Stock.
5.1 The Company covenants and agrees that all shares of Common Stock which may
be
acquired by the Holder under this Warrant Certificate will, when issued and
upon
delivery, be duly and validly authorized and issued, fully paid and
nonassessable,
and free from all stamp taxes, liens, and charges with respect to the
purchase thereof.
5.2 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 all outstanding options,
warrants
and rights, including the Warrants; and, if at the time the number of
authorized but
unissued shares of Common Stock shall not be sufficient to effect
the exercise of all
of the Warrants covered by this Warrant Certificate, 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.
6. Issuance of Certificates. As soon as possible after full or partial exercise of this Warrant Certificate, the Company, at its expense, will cause to be issued in the name of, and delivered to, the Holder of this Warrant Certificate, a certificate or certificates for the number of fully paid and nonassessable shares of Common Stock to which that Holder shall be entitled on such exercise. No fractional shares will be issued on exercise of this Warrant. If on any exercise of this Warrant a fraction of a share results, the Company will pay the cash value of that fractional share, calculated on the basis of the Per Share Exercise Price. All such certificates shall bear a restrictive legend to the effect that, subject to the provisions of Section 7 below, the Shares represented by such certificate have not been registered under the Securities Act of 1933, as amended, or qualified under any state securities laws and the Shares may not be sold or transferred in the absence of such registration and qualification or an exemption thereof, such legend to be substantially in the form set forth in Section 7.2 of this Warrant Certificate.
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7. Disposition of Warrants or Shares.
7.1 The Holder of this Warrant Certificate, by its acceptance thereof, agrees that (a)
no public
distribution of Warrants or Shares will be made in violation of the
provisions of the
Securities Act of 1933, as amended, and the Rules and
Regulations promulgated
thereunder (collectively, the "Act"), and (b) during such
period as delivery of a
prospectus with respect to Warrants or Shares may be
required by the Act, no
public distribution of Warrants or 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 of this Warrant
Certificate and each transferee hereof
further agrees that if any distribution of any
of the Warrants or Shares is proposed
to be made by them otherwise than by
delivery of a prospectus meeting the
requirements of Section 10 of the Act, such
action shall be taken only after receipt
by the Company of an opinion of its
counsel, to the effect that the proposed
distribution will not be in violation of the
Act or of applicable state law. Furthermore,
it shall be a condition to the transfer
of the Warrants that any transferee thereof
deliver to the Company his or its
written agreement to accept and be bound by all
of the terms and conditions
contained in this Warrant Certificate.
7.2 By acceptance hereof, the Holder represents and warrants that this Warrant
Certificate is
being acquired, and all Warrant Shares to be purchased upon the
exercise of this Warrant
Certificate will be acquired, by the Holder solely for the
account of the 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
promulgated
thereunder, and
the Holder agrees that neither this Warrant
Certificate nor any of the Warrant
Shares may be sold or transferred except under cover
of a registration statement
under the Act which is effective and current with respect to
such Warrant Shares
or pursuant to an opinion of counsel reasonably satisfactory to
the Company that
registration under the Act is not required in connection with such
sale or transfer. Any Warrant Shares issued upon exercise of this Warrant shall bear
a legend to the following effect:
The securities represented by this certificate 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
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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. Warrant Holder Not Shareholder. This Warrant Certificate shall not be deemed to confer upon the Holder any right to vote the Warrant Shares or to consent to or receive notice as a shareholder of the Company as such, because of this Warrant Certificate, in respect of any matters whatsoever, or any other rights or liabilities as a shareholder.
9. Authorization and Approval. The issuance of the Warrant Shares are subject to appropriate corporate, NASDAQ and regulatory authority approval.
10. Anti-Dilution.
10.1 If the Company at any time, or from time to time, while this Warrant Certificate
is
outstanding
shall declare or pay, without consideration, any dividend on the
Common
Stock payable in Common Stock, or shall effect a subdivision of the
outstanding
shares of Common Stock into a greater number of shares of Common
Stock (by
stock split, reclassification or otherwise than by payment of a dividend
in Common
Stock or in any right to acquire Common Stock), or if the outstanding
shares of
Common Stock shall be combined or consolidated, by reclassification or
otherwise,
into a lesser number of shares of Common Stock, then the number of
shares of
Common Stock issuable upon the exercise of this Warrant Certificate or
the Exercise
Price shall be appropriately adjusted such that immediately after the
happening of any
such event, the proportionate number of shares of Common Stock
issuable immediately
prior to the happening of such event shall be the number of
shares of Common Stock
issuable subsequent to the happening of such event.
10.2 In case of any consolidation or merger of the Company in which the Company is
not
the surviving entity, or in case of any sale or conveyance by the Company to
another
entity of all or substantially all of the property of the Company as an
entirety or
substantially as an entirety, the Holder shall have the right thereafter,
upon exercise
of this Warrant, to receive the kind and amount of securities, cash
or other property
which the Holder would have owned or been entitled to receive
immediately after
such consolidation, merger, sale or conveyance had this Warrant
been exercised in
full immediately prior to the effective date of such consolidation,
merger, sale or
conveyance, and in any such case, if necessary, appropriate
adjustment shall be made
in the application thereafter of the provisions of this
Section 10 with respect to the
rights and interests of the Holder to the end that the
provisions of this Section 10
thereafter shall be correspondingly applicable, as
nearly as may be, to such securities
and other property.
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11. 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, 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 11):
If to the Company: Perma-Fix Environmental Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
Fax No.: (000) 000-0000
with copies simultaneously Xxxxxx & Xxxxxxx
by like means to: One Leadership Square, Suite 0000
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esquire
Fax No.: (000) 000-0000
If to the Subscriber: Capital Bank Xxxxx Gruppe
Xxxxxxxx 00, 0000 Xxxx, Xxxxxxx
Attention: Xxxxxxx Xxxxxxx
Fax No.: 000-00-000-0000, ext. 392
12. Governing Law. This Warrant Certificate and all rights and obligations hereunder shall be deemed to be made under and governed by the laws of the State of Delaware without giving effect to such State's conflict of laws provisions. The Holder hereby irrevocably consents to the venue and jurisdiction of the federal courts located in Wilmington, Delaware.
13. Successors and Assigns. This Warrant Certificate shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
14. Headings. The headings of various sections of this Warrant Certificate have been inserted for reference only and shall not be a part of this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed, manually or by facsimile, by one of its officers thereunto duly authorized.
Dated as of July 9, 2001.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By /s/ Xxxxx Xxxxxxxxxx
Xx. Xxxxx X. Xxxxxxxxxx
Chief Executive Officer
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FORM OF ELECTION TO PURCHASE OR ASSIGN
Election to Purchase
The undersigned hereby irrevocably elects to exercise the right, represented by the foregoing Warrant Certificate, 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 ____________________________
