THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE
OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT (i) UNDER COVER
OF A REGISTRATION STATEMENT UNDER SUCH 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 AN EXCEPTION FROM
REGISTRATION UNDER SUCH ACT.
No. 2 - Ally 20,513 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
WHEREAS, in connection with the extension of an
additional Five Hundred Thousand Dollars ($500,000) in financial
credits by Ally Capital Management, Inc., a Delaware corporation
("Ally"), to Perma-Fix Environmental Services, Inc., a Delaware
corporation (the "Company"), or subsidiaries of the Company, under
the terms of an amendment to the Equipment Lease Agreement between
the Company and/or subsidiaries of the Company and Ally ("Lease
Agreement"), the Company has agreed to grant to Ally this Warrant
which provides, in part, that Ally may purchase up to twenty
thousand five hundred thirteen (20,513) shares of the Company's
Common Stock, par value $.001 per share, for $2.4375 per share (the
"Warrant Price"), subject and pursuant to the terms and conditions
of this Warrant.
NOW, THEREFORE, FOR VALUE RECEIVED, the Company, hereby
grants to Ally, or any permitted assignee thereof (the "Holder"),
the right to purchase from the Company, at any time in whole or
from time to time in part, during the period commencing the 11th
day of September, 1995, and ending at 5:00 p.m., Atlanta, Georgia
time, on September 10, 2000 (the "Exercise Period"), twenty
thousand five hundred thirteen (20,513) shares of the Company's
Common Stock, $.001 par value ("Common Stock"), all of which shall
be fully paid and nonassessable, at a purchase price of $2.4375 per
share, to be issued and delivered by the Company upon any exercise
of this Warrant and the payment of the Warrant Price (as hereafter
defined) to be paid for each such share of Common Stock to be
purchased upon such exercise pursuant to the terms thereof, which
shall be subject to adjustment from time to time as hereinafter
provided. 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 hereinafter
collectively referred to as the "Warrant", the shares of Common
Stock of the Company issuable and issued upon exercise of this
Warrant is hereinafter collectively referred to as the "Warrant
Shares", and the price payable for each of the Warrant Shares upon
such exercise is hereinafter referred to as the "Warrant Price".
1. Exercise of Warrant. This Warrant may be exercised, as a
whole at any one time or in part from time to time, during the
Exercise Period, by Ally, the holder of this Warrant, by the
surrender of this Warrant (with the subscription form at the end
hereof duly executed in a manner satisfactory to the Company) at
the address set forth in Subsection 10(a) 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, 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 Ally shall be entitled to
receive a new Warrant covering the number of Warrant Shares in
respect of which this Warrant has not been exercised, unless this
Warrant has expired pursuant to its terms. Upon any exercise and
surrender of this Warrant, the Company (i) will issue and deliver
to Ally a certificate or certificates in the name of Ally for the
largest whole number of Warrant Shares to which Ally shall be
entitled and, if this Warrant is exercised in whole, in lieu of any
fractional Warrant Share to which Ally 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 (ii) will deliver to Ally such
other securities and properties which Ally 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. This Warrant may not be exercised after the Exercise
Period.
2. Reservation of Warrant Shares. The Company agrees that at all
times prior to the expiration of the Warrant, the Company will have
authorized and in reserve, and will keep available, solely for
issuance or delivery upon the exercise of the Warrant such number
of shares of the Common Stock and such amount of other securities
and properties as from time to time shall be deliverable upon the
exercise of the Warrant, free and clear of all restrictions on sale
or transfer (except as otherwise provided by this Agreement or as
may be imposed under applicable federal and state securities laws
or the applicable exchange upon which the Common Stock may be
listed) and free and clear of all preemptive rights.
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 to all of
the holders of its outstanding Common Stock, (i)
securities, or (ii) property, other than cash, without
payment therefor, then, and in each such case, Ally,
upon the exercise of this Warrant, shall be entitled to
receive the securities and property which Ally would
hold on the date of such exercise if, on the date of
this Warrant, Ally 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 Ally during such period.
Notice of each such distribution shall be forthwith
mailed to Ally.
3.2 If, at any time or from time to time after the date of
this Warrant, the Company shall (i) pay a dividend or
make a distribution on its Common Stock in shares of
Common Stock, (ii) subdivide its outstanding shares of
Common Stock into a greater number of shares, (iii)
combine its outstanding shares of Common Stock into a
smaller number of shares, or (iv) 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, Ally 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 Ally 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 Ally would have had to pay for such Warrant
Shares immediately prior to such event divided by the
number of Warrant Shares Ally 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, Ally 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 Ally 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 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, Ally shall have the right thereafter,
upon exercise of this Warrant, to receive the kind and
amount of securities, cash or other property which Ally
would have owned or been entitled to receive immedi-
ately after such consolidation, merger, sale or
conveyance had this Warrant been exercised in full
immediately prior to the effective date of such
consolidation, merger, sale or conveyance and in any
such case, if necessary, appropriate adjustment shall
be made in the application thereafter of the provisions
of this Section 3 with respect to the rights and
interests of Ally 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. The provisions of this
subsection 3.3 shall similarly apply to successive
consolidations, mergers, sales or conveyances. Notice
of any such consolidation, merger, sale or conveyance,
and of said provisions so proposed to be made, shall be
mailed to Ally not less than twenty (20) 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.
3.4 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.10; provided, however, that any
adjustments which by reason of this subsection 3.4 are
not required to be made shall be carried forward and
taken into account in any subsequent adjustment, and
provided further, that adjustments shall be required
and made in accordance with the provisions of this
Section 3 (other than this subsection 3.4) not later
than such time as may be required in order to preserve
the tax-free nature of a distribution to Ally. All
calculations under this Section 3 shall be made to the
nearest cent or to the nearest 1/100th of a share, as
the case may be. Anything in this Section 3 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Warrant Price, in
addition to those required by this Section 3, as it
shall deem to be advisable in its discretion in order
that any stock dividend, subdivision of shares or
distribution of rights to purchase stock or securities
convertible or exchangeable for stock hereafter made by
the Company to its shareholders shall not be taxable.
3.5 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of Ally in accordance with this Section 3, the Chief
Financial Officer of the Company promptly shall
certify the Warrant Price and the number of Warrant
Shares after such adjustment or modification, a brief
statement of the facts requiring such adjustment or
modification and the manner of computing the same, and
shall cause such certificate to be mailed to Ally.
3.6 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock shall be or
are to be sold or issued by the Company for cash, the
net proceeds received by the Company shall be deemed to
be the consideration received by the Company therefor.
If any shares of Common Stock, options or securities
entitling the holders thereof to purchase Common Stock
or to convert such securities into Common Stock shall
be or are to be sold or issued for a consideration
other than cash, the amount of the consideration other
than cash received by the Company shall be deemed to be
the fair value of such consideration as determined in
good-faith by the Board of Directors of the Company,
without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed
by the Company in connection therewith.
3.7 No adjustment to the Warrant Price shall be required,
however (i) upon the exercise of any of the options
presently outstanding under the Company's 1991 Per-
formance Equity Plan (the "1991 Plan"), 1992 Outside
Directors Stock Option Plan (the "1992 Plan"), and 1993
Nonqualified Stock Option Plan (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) upon the issuance
or exercise of any options or securities which may
hereafter be granted or exercised under the Plans or
under any other employee benefit plan of the Company
provided such securities are issued with a conversion
or exercise price equal to not less than eighty-five
percent (85%) of the fair market value of the Common
Stock pursuant to the terms of the employee benefit
plan; or (iii) upon the exercise of outstanding
warrants to purchase shares of the Common Stock; or
(iv) upon the sale of any shares of Common Stock or
convertible securities in a private placement or in a
firm commitment underwritten public offering for value
received or to be received by the Company; or (v) upon
the issuance or sale of Common Stock or convertible
securities upon the exercise of any rights or warrants
to subscribe for or purchase, or any options for the
purchase of, Common Stock or convertible securities,
whether or not such rights, warrants or options were
outstanding on the date of the original sale of the
Warrants or were thereafter issued or sold; or (vi)
upon the issuance by the Company of Common Stock to
Quadrex Corporation or Quadrex Environmental Company.
3.8 As used in this Section 3, the term "Common Stock"
shall mean and include the Company's Common Stock
authorized on the date of the original issue of the
Warrants and shall also include any capital stock of
any class of the Company thereafter authorized which
shall not be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to
participate in dividends and in the distribution of
assets upon the voluntary liquidation, dissolution or
winding up of the Company; provided, however, that the
shares issuable upon exercise of this Warrant shall
include only shares of such class designated in the
Company's Certificate of Incorporation as Common Stock
on the date of the original issue of the Warrants or
(i), in the case of any reclassification, change,
consolidation, merger, sale or conveyance of the
character referred to in Subsection 3.3 hereof, the
stock, securities or property provided for in such
section or (ii), in the case of any reclassification or
change in the outstanding shares of Common Stock
issuable upon exercise of the Warrants as a result of
a subdivision or combination or consisting of a change
in par value, or from par value to no par value, or
from no par value to par value, such shares of Common
Stock as so reclassified or changed.
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 the 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. Registration under the Securities Act of 1933.
5.1 Subject to the terms of this Section 5, if, at any time
during the Exercise Period, the Company proposes to
register shares of the Company Common Stock for public
sale in a firm commitment underwriting for its own
account under a Form S-1 or S-2 registration statement
(collectively, the "Registration Statement"), the
Company shall give the Holder notice of such proposed
registration at least twenty (20) calendar days prior
to the filing of the Registration Statement. At the
written request of the Holder delivered to the Company
within seven (7) calendar days after the receipt of the
notice from the Company, which request shall state the
Holder's intent to sell all of the Warrant Shares then
owned by the Holder, the Company shall use its
reasonable efforts to register such Warrant Shares
under the same Registration Statement otherwise being
filed by the Company, and to use reasonable efforts to
cause such registration to become and remain effective
so long as the Company keeps such registration
effective as to such other Company Common Stock being
sold for the account of the Company. The Company shall
not be required to include any of the Warrant Shares in
any Registration Statement unless the Holder accepts
the terms of the underwriting as agreed upon between
the Company and the managing underwriter or
underwriters, jeopardize the success or the offering by
the Company. If the total amount of the Warrant Shares
requested to be included in the registration by the
Holder and other shareholders of the Company that
request the inclusion of securities of the Company in
such Registration Statement (the "Other Shareholders")
exceeds the amount of securities that the managing
underwriters reasonably believe compatible with the
success of the offering, the Company shall only be
required to include in the offering so many of the
Warrant Shares held by the Holder and other securities
of the Company held by the Other Shareholders as the
managing underwriters believe will not jeopardize the
success of the offering (the Warrant Shares and other
securities of the Company held by the Other
Shareholders so included to be apportioned pro rata
among the Holder and the Other Shareholders according
to the amounts of Warrant Shares and other securities
of the Company held by the Other Shareholders so
requested to be included in the Registration Statement
or in such other proportions as have been mutually
agreed by the Holder and the Other Shareholders);
provided, however, that no such reduction shall be made
with respect to any securities offered by the Company
or any Other Shareholders whose shares are included in
such Registration Statement other than pursuant to
piggyback registration rights. All Warrant Shares
registered pursuant to this Section 5 must be offered
for sale in the public offering by the same underwriter
or underwriters that are offering the other shares of
the Company Common Stock being registered. The Company
may withdraw the Registration Statement at any time
before it becomes effective or postpone the offering
without obligation to, or the consent of, the Holder.
The Company will use reasonable efforts to obtain
appropriate approvals or registrations under state
"blue sky" securities laws. With respect to any such
securities, however, this Warrant may not be exercised
by, or shares of Common Stock issued to, the Holder in
any state in which such exercise would be unlawful.
The Holder's rights under this Section 5.1 shall expire
and terminate at the earlier of (i) such time as the
Holder shall have received from counsel to the Company
an unqualified written opinion of such counsel that the
Holder has the right, pursuant to the provisions of
Rule 144 under the Act, to sell within any three (3)
month period all Warrant Shares then held and
purchasable upon the exercise of Warrants by the Holder
or (ii) termination of the Exercise Period.
5.2 The Company shall bear the expenses of preparing the
Registration Statement contemplated by this Section 5,
including, without limitation, costs of complying with
federal and state securities laws and regulations,
attorneys' fees of the Company, accounting fees,
printing expenses and federal and state filing fees;
provided, however, that the Holder shall bear all
transfer fees, underwriting commissions and discounts,
and fees of counsel to the Holder relating to the
Warrant Shares included in such Registration Statement.
5.3 In the event any Warrant Shares are included in a
Registration Statement pursuant to Section 5.1 hereof:
5.3.1 Except as otherwise provided in this Section
5.3, to the extent permitted by law, the
Company will indemnify and hold harmless the
Holder and each other entity or person, if
any, controlling the Holder within the meaning
of either Section 15 of the Act or Section 20
of the Exchange Act (collectively, the
"Controlling Party") against any losses,
claims, damages or liabilities to which the
Holder or the Controlling Party may become
subject under the Act, insofar as such losses,
claims, damage or liabilities (or actions in
respect thereof) arise out of or are based on
any untrue or alleged untrue statement of any
material fact contained in such Registration
Statement registering the Warrant Shares filed
by the Company with the Commission, including
any preliminary prospectus or final prospectus
contained therein or any amendments or supple-
ments 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 not misleading or arise out of any
violation by the Company of any rule or
regulation promulgated under the Act
applicable to the Company and relating to
action or inaction required of the Company in
connection with any such registration, and
will reimburse the Holder and such Controlling
Party for any legal or other expenses
reasonably incurred by it in connection with
investigating or defending any such loss,
claim, damage, liability or action, except as
otherwise provided in Section 5.3; provided,
however, that the indemnity agreement
contained in this Section 5.3.1 shall not
apply to amounts paid in settlement of any
such loss, claim, damage, liability or action
if such settlement is effected without the
consent of the Company (which consent shall
not be unreasonably withheld) nor shall the
Company be liable in any such case for any
such loss, claim, damage, liability, or action
to the extent that it arises out of or is
based upon any untrue statement or alleged
untrue statement or omission or alleged
omission made in connection with such
Registration Statement, preliminary
prospectus, final prospectus, or amendments or
supplements thereto, in reliance upon and in
conformity with written information furnished
expressly for use in connection with such
Registration Statement by the Holder, any
underwriter or Controlling Party thereof.
5.3.2 Except as otherwise provided in this Section
5.3, to the extent permitted by law, the
Holder will indemnify and hold harmless the
Company, each of its directors, each of its
officers who have signed the Registration
Statement, each person, if any, who controls
the Company within the meaning of the Act or
the Exchange Act, and each agent for the
Company against any losses, claims, damages,
or liabilities to which the Company or any
such director, officers, controlling person,
agent, or underwriter may become subject under
the Act, insofar as such losses, claims,
damages or liabilities (or actions in respect
thereto) arise out of or are based upon any
untrue statement or alleged untrue statement
of a material fact contained in such
Registration Statement, including any
preliminary prospectus or final prospectus
contained therein or any amendments or supple-
ments 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 not misleading, in each case to the
extent, but only to the extent, that such
untrue statement or omission or alleged
omission was made in such Registration
Statement, preliminary or final prospectus or
amendments or supplements thereto, in reliance
upon and in conformity with written
information furnished by or on behalf of the
Holder for use in connection with such Regis-
tration Statement, and the Holder will
reimburse any legal or other expenses
reasonably incurred by the Company or any such
director, officer, controlling person or agent
in connection with investigating or defending
any such loss, claim, damage, liability or
action, except as otherwise provided in
Section 5.3; provided, however, that the
indemnity agreement contained in this Section
5.3.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage,
liability or action if such settlement is
effected without the consent of the Holder
(which consent shall not be unreasonably
withheld), and that the obligation of the
Holder hereunder shall be limited to an amount
equal to the proceeds to the Holder of Warrant
Shares sold pursuant thereto.
5.3.3 Promptly after receipt by a person entitled to
indemnification pursuant to this Section 5 (an
"Indemnified Party") under this section of
notice of the commencement of any action, the
Indemnified Party will, if a claim in respect
thereof is to be made against the indemnifying
party under this Section 5.3, notify in
writing the indemnifying party of the
commencement thereof; but the omission so to
notify the indemnifying party will not relieve
it from any liability which it may have to the
Indemnified Party otherwise than under this
Section. In case any such action is brought
against an Indemnified Party and it notifies
the indemnifying party of the commencement
thereof, the indemnifying party will be
entitled to participate in and, to the extent
that it may wish, jointly with any other
indemnifying party similarly notified, to
assume the defense thereof, subject to the
provisions herein stated, with counsel reason-
ably satisfactory to the Indemnified Party,
and after notice from the indemnifying party
to the Indemnified Party of its election so to
assume the defense thereof, the indemnifying
party will not be liable to the Indemnified
Party under this Section 5.3 for any legal or
other expenses subsequently incurred by the
Indemnified Party in connection with the
defense thereof. The Indemnified Party shall
have the right to employ separate counsel in
any such action and to participate in the
defense thereof, but the fees and expenses of
such counsel shall be at the expense of the
indemnifying party only if (i) the employment
of such counsel has been specifically
authorized in writing by the indemnifying
party or (ii) the named parties to any such
action (including any impleaded parties)
include both the Indemnified Party or parties
and the indemnifying party and the Indemnified
Party has been advised that there are defenses
available to it or them that the indemnifying
party or its counsel refuses to accept and in
which case the indemnifying party shall not
have the right to assume the defense of such
action on behalf of the Indemnified Party or
parties, it being understood, however, that
the indemnifying party or parties shall not,
in connection with any one such action or
separate, but substantially similar or related
actions in the same jurisdiction arising out
of the same general allegations or
circumstances, be liable for the reasonable
fees and expenses of more than one separate
firm of attorneys for the Indemnified Party or
parties.
6. Limited Transferability and Investment Representation.
6.1 This Warrant shall not be transferable or assignable by
Ally, except to any bank, corporation or association
which is a successor to Ally or to an Affiliate (as
that term is defined in Rule 405 promulgated under the
Act) of Ally, and shall be so transferable upon the
books of the Company which it shall cause to be
maintained for that purpose; provided that any such
assignee shall be bound by the terms hereof and prior
to such assignment or transfer such transferee or
assignee shall execute such documents as may reasonably
be required by the Company to evidence that such
assignee or transferee is bound by the terms hereof;
provided however, that prior to such permitted transfer
or assignment the Company shall have received from
counsel for Ally, which counsel is reasonably
satisfactory to the Company, an opinion that this
Warrant may be sold, transferred or assigned to such
successor or Affiliate without registration under the
Securities Act of 1933, as amended, and any applicable
state laws, pursuant to an exemption from registration
under the Act and applicable state law. The Company
may treat the registered holder of this Warrant as he
or it appears on the Company's books at any time as
Ally for all purposes. The Company shall permit Ally
or its duly authorized attorney, upon written request
during ordinary business hours, to inspect and copy or
make extracts from its books showing the registered
holder of this Warrant. Any Warrant issued in sub-
stitution of this Warrant will be dated the same date
as this Warrant.
6.2 By acceptance hereof, Ally 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 Ally solely for the account of Ally 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 Ally agrees that neither
this Warrant 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
the following legend:
The securities represented by this certificate
have not been registered under the Securities
Act of 1933, as amended (the "Act"), 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 which is effective
and current with respect to such securities or
pursuant to an opinion of counsel reasonably
satisfactory to the issuer of such securities
that such sale or transfer is exempt from the
registration requirements of such Act.
7. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by Ally
until the Company has listed the Warrant Shares with the National
Association of Securities Dealers Automated Quotation system
("Nasdaq") and the Boston Stock Exchange (the "Exchange"). The
Company will use, at its expense, reasonable efforts to list the
Warrant Shares with the Nasdaq and the Exchange at the earlier of
(i) exercise of the Warrant Shares or (ii) registration of the
Warrant Shares under the Act.
8. 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 Ally a new Warrant of like date, tenor and
denomination.
9. Warrant Holder Not Shareholder. This Warrant shall not be
deemed to confer upon Ally any right as a stockholder of the
Company, including, but not limited to, rights as a stockholder to
receive dividends or to vote the Warrant Shares or to consent to or
receive notice as a shareholder of the Company, as such, because of
this Warrant, in respect of any matters whatsoever, or any other
rights or liabilities as a shareholder, prior to the exercise
hereof.
10. Notices. No notice or other communication pursuant to or in
respect of this Warrant shall be effective unless, but any notice
or other communication shall be effective and shall be deemed to
have given if and when, the same is in writing and is mailed by
first-class mail, postage prepaid, addressed:
If to the Company: Perma-Fix Environmental
Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxx, Xx.
If to Ally: Ally Capital Management, Inc.
0000 Xxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxxxx
Attention: Vice President -
Venture Investments
With a copy to: Xxxxxx X. Xxxxxxxxx, Esquire
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
or such other address as the Company and Ally previously may have
designated in conformity with the foregoing.
11. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
12. 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.
13. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
IN WITNESS WHEREOF, the Company has causes this Warrant to be
signed by its President and its corporate seal to be hereunto
affixed and attested by its Secretary this 11th day of September,
1995.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: ________________________________
Xxxxxx X. Xxxxxx
President
(the "Company")
ALLY CAPITAL MANAGEMENT, INC.
By: _________________________________
Name:____________________________
Title:___________________________
("Ally")
ISTE:\N-P\PESI\ALLY\WARRANT.2
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.
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 assigns
and transfers unto ___________________________ the right to
purchase ___________ shares of the Common Stock of Perma-Fix
Environmental Services, Inc. by the foregoing Warrant, and a
proportionate part of said Warrant and the rights evidenced hereby,
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 ____________________________
ISTE:\N-P\PESI\ALLY\WARRANT.2
