As filed with the Securities and Exchange Commission
on December 23, 1997
Registration No. 333-
================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
(Exact name of registrant as specified in charter)
DELAWARE 58-1954497
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
1940 Northwest 67th Place
Gainesville, Florida 32653
(352) 373-4200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
________________________________
DR. LOUIS F. CENTOFANTI
Chairman of the Board
Perma-Fix Environmental Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
(352) 373-4200
(Address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
IRWIN H. STEINHORN, ESQUIRE
Conner & Winters, A Professional Corporation
One Leadership Square, Suite 1700
211 North Robinson
Oklahoma City, Oklahoma 73102
(405) 272-5711
Approximate date of commencement of proposed sale to the
public: As soon as practicable after this Registration Statement
becomes effective.
If the only securities being registered on this form are being
offered pursuant to a dividend or interest reinvestment plans,
please check the following box: [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box: [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering:
If delivery of the prospectus is expected to be made pursuant
to Rule 434, check the following box: [ ]
The registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until this
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Maximum Maximum
Class of Number of Offering Aggregate Amount of
Securities to Shares to be Price Offering Registration
be Registered Registered Per Share Price Fee
______________ ____________ ____________ __________ ___________
Common Stock,
$.001 par value 3,302,074(1) $2.4688(2) $8,152,160 $2,404.89
Common Stock,
$.001 par value 375,000(3) $2.00-$3.625(4) $1,165,625 $ 343.86
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=======
(1) Includes (a) 1,379,311 shares to be issued upon conversion of the
Company's Series 6 Class F Convertible Preferred Stock, par value $.001
per share (''Series 6 Preferred''); (b) 250,000 shares which may be issued
by the Company in payment of dividends accrued on the Series 6 Preferred;
(c) 200,000 shares to be issued upon conversion of the Company's Series 7
Class G Convertible Preferred Stock, par value $.001 per share (''Series
7 Preferred''); (d) 36,000 shares which may be issued by the Company in
payment of dividends accrued on the Series 7 Preferred; (e) 100,000 shares
to be issued upon exercise of one warrant at an exercise price of $1.50
per share; (f) 100,000 shares to be issued upon exercise of one warrant at
an exercise price of $1.70 per share; (g) 375,000 shares to be issued upon
exercise of two warrants at an exercise price of $1.8125; (h) 35,000
shares to be issued upon exercise of two warrants at an exercise price of
$1.8125; (i) 200,000 shares to be issued upon exercise of one warrant at
an exercise price of $2.00 per share; (j) 175,000 shares to be issued upon
exercise of one warrant at an exercise price of $2.00 per share; (k)
75,000 shares to be issued upon exercise of one warrant at an exercise
price of $2.00 per share; (l) 281,250 shares to be issued upon the
exercise of one warrant at an exercise price of $2.125 per share; (m)
75,000 shares to be issued upon the exercise of five warrants at an
exercise price of $2.375 per share; and (n) 20,513 shares to be issued
upon exercise of one warrant at an exercise price of $2.4375 per share.
(2) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(c) on the basis of the average of the high and
low price as quoted on the NASDAQ Small Cap Market on December 19, 1997.
(3) Includes (a) 75,000 shares to be issued upon exercise of one warrant at
an exercise price of $2.50 per share; (b) 175,000 shares to be issued upon
exercise of one warrant at an exercise price of $3.00 per share; and (c)
125,000 shares to be issued upon exercise of one warrant at an exercise
price of $3.625 per share.
(4) Estimated in accordance with Rule 457(g) for the purpose of calculating
the registration fee.
<PAGE>
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Subject to Completion: Dated December 23, 1997
PROSPECTUS
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
3,677,074 Shares of Common Stock, par value $.001
This prospectus (''Prospectus'') covers 3,677,074 shares (the
''Shares'') of the common stock, par value $.001 per share
(''Common Stock''), of Perma-Fix Environmental Services, Inc., a
Delaware corporation (the ''Company'') for reoffer or resale from
time to time by the Selling Shareholders (as defined on page 32).
The Shares are comprised of the following: (a) 1,379,311 shares of
Common Stock issuable by the Company upon the conversion of 2,500
shares of Series 6 Class E Convertible Preferred Stock, par value
$.001 per share (''Series 6 Preferred''), issued by the Company in
connection with an Exchange Agreement, dated November 6, 1997, but
effective as of September 16, 1997 (the ''RBB Exchange
Agreement''), entered into between the Company and RBB Bank
Aktiengesellschaft (''RBB Bank''), located in Graz, Austria; (b)
250,000 shares of Common Stock which may be issued by the Company
to RBB Bank in payment of accrued dividends on the Series 6
Preferred; (c) 656,250 shares of Common Stock issuable upon the
exercise of three warrants, each dated as of September 16, 1997,
issued by the Company to RBB Bank in connection with the RBB
Exchange Agreement, with two warrants each being for 187,500 shares
and exercisable for three years at $1.8125 per share, and the third
warrant being for 281,250 shares and exercisable for three years at
$2.125 per share (collectively, the ''Series 6 Warrants''); (d)
300,000 shares of Common Stock issuable by the Company upon the
exercise of two warrants, each dated June 9, 1997, issued by the
Company to JW Charles Financial Services, Inc. (''JW Charles''),
with one warrant being for 100,000 shares and exercisable for three
years at $1.50 per share and the other warrant being for 200,000
shares and exercisable for five years at $2.00 per share
(collectively, the ''Charles Warrants''); (e) 200,000 shares of
Common Stock issuable by the Company upon the conversion of 350
shares of Series 7 Class G Convertible Preferred Stock, par value
$.001 per share (''Series 7 Preferred''), issued by the Company in
connection with an Exchange Agreement, dated October 31, 1997, but
effective as of September 16, 1997 (the ''Infinity Exchange
Agreement''), entered into between the Company and The Infinity
Fund, L.P. (''Infinity''); (f) 36,000 shares of Common Stock which
may be issued by the Company to Infinity in payment of dividends
accrued on the Series 7 Preferred; (g) 35,000 shares of Common
Stock issuable upon the exercise of two warrants, each dated as of
September 16, 1997, issued by the Company to Infinity in connection
with the Infinity Exchange Agreement, and exercisable for three
years at $1.8125 (the ''Infinity Warrants''); (h) 125,000 shares of
Common Stock issuable by the Company upon the exercise of a
warrant, dated June 17, 1994, issued by the Company to Sun Bank,
National Association (''Sun Bank'') in connection with the
extension of certain financial credits by Sun Bank to the Company
(''Sun Bank Warrant''), exercisable until June 16, 1999, at an
exercise price of $3.625 per share; (i) 7,000 shares of Common
Stock issuable by the Company upon exercise of one warrant (''Blair
Remainder Warrant''), exercisable until December 31, 1999, at an
exercise price of $2.375 per share, issued to D.H. Blair Investment
Banking Corporation (''Blair'') to reflect the unassigned portion
of a warrant for 75,000 shares of Common Stock which was previously
issued by the Company to Blair in connection with the extension of
a promissory note (''Blair Warrant'') and which was partially
assigned by Blair to the following officers and directors of Blair:
(w) 28,000 shares of Common Stock issuable by the Company upon
exercise of one warrant issued to J. Morton Davis (''Davis'') as a
result of the assignment by Blair of a portion of the Blair
Warrant, exercisable until December 31, 1999, at an exercise price
of $2.375 per share (''Davis Warrant''); (x) 28,000 shares of
Common Stock issuable by the Company upon exercise of one warrant
issued to Esther Stahler (''Stahler'') as a result of the
assignment by Blair of a portion of the Blair Warrant, exercisable
until December 31, 1999, at an exercise price of $2.375 per share
(''Stahler Warrant''); (y) 7,000 shares of Common Stock issuable by
the Company upon exercise of one warrant issued to Ruki Renov
(''Renov'') as a result of the assignment by Blair of a portion of
the Blair Warrant, exercisable until December 31, 1999, at an
exercise price of $2.375 per share (''Renov Warrant''); and (z)
5,000 shares of Common Stock issuable by the Company upon exercise
of one warrant issued to Martin A. Bell (''Bell'') as a result of
the assignment by Blair of a portion of the Blair Warrant,
exercisable until December 31, 1999, at an exercise price of $2.375
per share (''Bell Warrant''); (j) 20,513 shares of Common Stock
issuable by the Company upon exercise of a warrant issued to Ally
<PAGE>
Capital Management (''Ally'') in connection with a loan to the
Company, which warrant is exercisable until September 11, 2000, at
an exercise price of $2.4375 per share; (k) 100,000 shares of
Common Stock issuable by the Company upon exercise of one warrant,
dated as of September 16, 1997, issued by the Company to Dionysus
Limited (''Dionysus''), an Isle of Man corporation, for services
rendered to the Company in connection with the Private Placement
(as defined) and exercisable for three years at $1.70 per share
(''Dionysus Warrant''); and (l) 500,000 shares of Common Stock
issuable upon the exercise of four warrants, each dated July 25,
1997, issued to the following individuals for services rendered to
the Company: (x) Karl H. Ehlert, a five year warrant to purchase up
to 175,000 shares at an exercise price of $2.00 per share and a
five year warrant to purchase up to 175,000 shares at an exercise
price of $3.00 per share (collectively, the ''Ehlert Warrants'')
and (y) R. Keith Fetter, a three year warrant to purchase up to
75,000 shares at an exercise price of $2.00 per share and a three
year warrant to purchase up to 75,000 shares at an exercise price
of $2.50 per share (collectively, the ''Fetter Warrants'') (the
Ehlert Warrants and Fetter Warrants are collectively referred to as
the ''Service Warrants''). See ''Summary of Securities Being
Offered'' and ''Private Placements and Exchange Agreements.''
The shares of Series 6 Preferred and the shares of Series 7
Preferred may be converted into shares of Common Stock at a
conversion price (''Conversion Price'') equal to $1.8125 per share
of Common Stock, except that, in the event the average closing bid
price of the Common Stock as reported in the over-the-counter
market, or the closing sale price if listed on a national
securities exchange, for 20 of any 30 consecutive trading days
after March 1, 1998, shall be less than $2.50 per share, the
Conversion Price shall be adjusted thereafter (''Conversion Price
Adjustment'') to be the lesser of (i) the average closing bid
quotation of the Common Stock as reported on the over-the-counter
market, or the closing sale price if listed on a national
securities exchange, for the five trading days immediately
preceding the date of the conversion notice provided to the
Company, multiplied by eighty percent (80%) or (ii) $1.8125;
provided, however, that the Conversion Price Adjustment applies to
the Series 7 Preferred only if the holders of such Series 7
Preferred have engaged in no sales of Common Stock during and for
30 trading days prior to the 30 consecutive trading day period used
to activate the Conversion Price Adjustment. If the Conversion
Price Adjustment becomes effective, then the minimum conversion
price shall be $0.75 per share of Common Stock, which minimum will
be eliminated from and after September 6, 1998. If the Conversion
Price Adjustment does not become effective, the conversion of all
of the Series 6 Preferred could result in the issuance of up to
approximately 1,379,311 shares of Common Stock, and the conversion
of all of the Series 7 Preferred could result in the issuance of up
to approximately 200,000 shares of Common Stock. If the Conversion
Price Adjustment is in effect and the conversion occurs prior to
September 6, 1998, the number of shares of Common Stock issuable
upon the conversion of the Series 6 Preferred could result in the
issuance of between approximately 1,379,311 to 3,333,333 shares of
Common Stock, and the conversion of the Series 7 Preferred could
result in the issuance of between approximately 200,000 to 467,000
shares of Common Stock with the actual number depending upon the
closing bid price of the Common Stock over the five trading days
immediately preceding the conversion date or dates. The number of
shares of Common Stock issuable upon conversion of the Series 6
Preferred and the Series 7 Preferred could exceed the foregoing
estimates if converted after the minimum conversion price is
eliminated on September 6, 1998, or under certain other limited
circumstances. See ''Summary of Securities Being Offered.''
However, the Company is required to use reasonable efforts to
register only 1,379,311 shares to be issued upon the conversion of
the Series 6 Preferred under the terms of the RBB Exchange
Agreement and 200,000 shares to be issued upon the conversion of
the Series 7 Preferred under the terms of the Infinity Exchange
Agreement. The 1,379,311 shares and 200,000 shares required to be
registered under the terms of the RBB Exchange Agreement and the
Infinity Exchange Agreement, respectively, approximates the number
of shares of Common Stock issuable by the Company upon such
conversion at a conversion price of $1.8125 per share. See
''Private Placements and Exchange Agreements.''
The Company's Common Stock is traded under the symbol ''PES''
on the Boston Stock Exchange (''BSE'') and under the symbol
''PESI'' on the National Association of Securities Dealers
Automated Quotation System SmallCap Market (''NASDAQ''). The
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Shares may be offered for sale from time to time in one or more
transactions, including block trades, in the over the counter
market, on the BSE and the NASDAQ, in privately negotiated
transactions, or in a combination of any such methods of sale. On
December 19, 1997, the closing bid price of the Company's Common
Stock as quoted by the NASDAQ was $2.4375 per share.
The Company will not receive any of the proceeds from the
sale of Shares by the Selling Shareholders. However, the Company
will receive the exercise price upon the exercise of the various
warrants described herein. See ''Use of Proceeds.''
The Company has agreed to pay all the costs and fees relating
to the registration of the Shares covered by this Prospectus.
However, the Company will not pay any discounts, concessions or
commissions payable to underwriters, dealers or agents incident to
the offering of the Shares or fees and expenses incurred by counsel
for the Selling Shareholders.
The mailing address, including zip code, and the telephone
number of the principal executive office of the Company is: 1940
Northwest 67th Place, Gainesville, Florida 32653, and the telephone
number is (352) 373-4200.
___________________________________
INVESTMENT IN THESE SECURITIES INVOLVES A HIGH DEGREE OF
RISK. SEE ''RISK FACTORS'' OF THIS PROSPECTUS FOR A
DISCUSSION OF CERTAIN FACTORS THAT PROSPECTIVE INVESTORS
SHOULD CONSIDER PRIOR TO AN INVESTMENT IN THESE
SECURITIES.
___________________________________
<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
___________________________________
The date of this Prospectus is December ____, 1997.
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<PAGE>
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Certain statements contained within this Prospectus may be
deemed ''forward-looking statements'' within the meaning of Section
27A of the Securities Act of 1933, as amended, and Section 21E of
the Securities Exchange Act of 1934, as amended (collectively, the
''Private Securities Litigation Reform Act of 1995''). All
statements in this Prospectus other than statements of historical
fact are forward-looking statements that are subject to known and
unknown risks, uncertainties and other factors which could cause
actual results and performance of the Company to differ materially
from such statements. The words ''believe,'' ''expect,''
''anticipate,'' ''intend,'' ''will,'' and similar expressions
identify forward-looking statements. Forward-looking statements
contained herein relate to, among other things, (i) ability or
inability to improve operations and become profitable on an
annualized basis and continue its operations, (ii) completion of
the Congress Loan (as defined below), (iii) resolution of the
defaults under the Heller Agreement (as defined below) and the Ally
Agreement (as defined below), (iv) the Company's ability to develop
or adopt new and existing technologies in the conduct of its
operations, (v) anticipated financial performance, (vi) ability to
comply with the Company's general working capital requirements,
(vii) ability to recover under certain insurance policies, (viii)
ability to retain or receive certain permits, (ix) the successful
resolution of certain actions instituted by the Tennessee
Department of Environment and Conservation (''TDEC'') against the
Memphis, Tennessee facility of the Company, (x) ability to be able
to continue to borrow under the Company's revolving line of credit,
(xi) ability to generate sufficient cash flow from operations to
fund all costs of operations and remediation of certain formerly
leased property in Dayton, Ohio and the Company's facility in
Memphis, Tennessee, (xii) ability to remediate certain contaminated
sites for projected amounts, (xiii) determination whether the
Company is a potentially responsible party at the Drum site (as
defined below), and, if determined to be a potentially responsible
party, the potential cost to the Company in connection with
remediating the Drum site, (xiv) determination that the Company is
a potentially responsible party at the Drum site (as defined below)
and, as a result, potential cost to the Company in connection with
remediating the Drum site, and all other statements which are not
statements of historical fact. While the Company believes the
expectations reflected in such forward-looking statements are
reasonable, it can give no assurance such expectations will prove
to have been correct. There are a variety of factors which could
cause future outcomes to differ materially from those described in
this Prospectus, including, but not limited to, (i) general
economic conditions, (ii) material reduction in revenues, (iii)
inability to collect in a timely manner a material amount of
receivables, (iv) increased competitive pressures, (v) the ability
to maintain and obtain required permits and approvals to conduct
operations, (vi) the ability to develop new and existing
technologies in the conduct of operations, (vii) overcapacity in
the environmental industry, (viii) ability to receive or retain
certain required permits, (ix) ability to satisfactorily resolve
certain pending orders or issues or to reopen a certain facility,
(x) discovery of additional contamination or expanded contamination
at a certain Dayton, Ohio property formerly leased by the Company
or the Company's facility at Memphis, Tennessee which would result
in a material increase in remediation expenditures, (xi)
determination that PFM is the source of chlorinated compounds at
the Allen Well Field, (xii) changes in federal, state and local
laws and regulations, especially environmental regulations, or in
interpretation of such, (xiii) potential increases in equipment,
maintenance, operating or labor costs, (xiv) management retention
and development, (xv) the requirement to use internally generated
funds for purposes not presently anticipated, (xvi) Congress' (as
defined below) decision regarding the completion of the Congress
Loan, (xvii) Congress' providing terms in the Congress Loan which
are unacceptable to the Company, (xviii) the ability to obtain
waivers regarding existing defaults under certain covenants
contained in loan agreements that the Company is a party to or the
ability of the Company to successfully negotiate a payoff under
such loan agreements should alternative financing become available,
(xix) a determination by the insurance carrier that coverage is not
available or is available in limited amounts regarding pending or
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future claims, a determination that PFM or the Company is a
potentially responsible party regarding the Drum site, and, as a
result is determined to be liable for a substantial portion of the
remediation cost at the Drum site, or (xx) the ability of the
Company to become profitable or, if unable to become profitable,
the ability to secure additional liquidity in the form of
additional equity or debt. The Company undertakes no obligation to
update publicly any forward-looking statement, whether as a result
of new information, future events or otherwise.
___________________________________
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (''Exchange Act''),
and, in accordance therewith, files reports, proxy statements and
other information with the Securities and Exchange Commission (the
''Commission''). Such reports, proxy statements and other
information can be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D. C. 20549, as well as
at its Regional Offices located at 7 World Trade Center, Suite
1300, New York, New York 10048, and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained from the Public Reference Section of the Commission, 450
Fifth Street, N.W., Washington, D. C. 20549, at prescribed rates.
Such materials can also be accessed through the World Wide Web site
of the Commission, which contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission (http://www.sec.gov). The
Company's Common Stock is listed on the BSE and with NASDAQ, and
reports, proxy statements and other information concerning the
Company may also be inspected at (a) the offices of the BSE at One
Boston Place, Boston, Massachusetts 02108, and (b) the offices of
NASDAQ at 1735 K Street, N.W., Washington, D. C. 20006-1506.
The Company has filed a registration statement on Form S-3
(together with any amendments thereto, the ''Registration
Statement'') under the Securities Act of 1933, as amended (the
''Securities Act''), with respect to the Shares offered by this
Prospectus. This Prospectus constitutes a part of the Registration
Statement and omits certain information contained in the
Registration Statement in accordance with the rules and regulations
of the Commission. Reference is made to the Registration Statement
and exhibits thereto for further information with respect to the
Company and the Shares of Common Stock offered hereby. Copies of
the Registration Statement and the exhibits thereto may be obtained
at prescribed rates upon request to the Commission in Washington,
D. C. Any statements contained herein concerning the provisions of
any documents are not necessarily complete, and, in each instance,
such statements are qualified in their entirety by reference to
such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission.
INCORPORATION BY REFERENCE
The following documents filed by the Company with the
Commission under the Exchange Act are incorporated by reference in
this Prospectus and will be deemed part of this Prospectus:
(1) Annual Report on Form 10-K for the year ended
December 31, 1996, as amended by Amendment No. 1 on
Form 10-K/A filed October 16, 1997;
(2) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
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(3) Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997;
(4) Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997;
(5) Current Report on Form 8-K dated June 11, 1997, as
amended by Current Report on Form 8-K/A dated
June 25, 1997;
(6) Current Report on Form 8-K dated July 7, 1997.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering under this
Prospectus will be deemed to be incorporated by reference into this
Prospectus from the respective dates those documents are filed. If
any statement in this Prospectus, in a subsequent supplement to
this Prospectus or any document incorporated by reference in this
Prospectus is modified or superseded by a statement in this
Prospectus, in subsequent supplement to this Prospectus, or in any
document incorporated by reference in this Prospectus, the earlier
statement will be deemed, for the purposes of this Prospectus to
have been modified or superseded by the subsequent statement and
the earlier statement is incorporated by reference only as modified
or to the extent it is not superseded
The Company will provide to each person to whom this
Prospectus is delivered a copy of any or all of the documents which
have been or may be incorporated by reference in this Prospectus
(other than certain exhibits to those documents). Such copies will
be provided upon written or oral request and without charge.
Requests should be directed to Richard T. Kelecy, Perma-Fix
Environmental Services, Inc., 1940 Northwest 67th Place,
Gainesville, Florida 32653, telephone (352) 373-4200.
RISK FACTORS
In evaluating an investment in the Shares, prospective
purchasers of the Shares pursuant to this Prospectus should
consider carefully the factors set forth below, as well as the
other information contained in this Prospectus and incorporated
herein by reference.
Accumulated Deficits; Net Losses; Future Losses
The Company has reported consolidated net losses in all annual
periods since it began operations in 1991. The Company's historical
consolidated balance sheet at December 31, 1996, reflected an
accumulated deficit of approximately $14,290,000, and the Company's
consolidated statement of operations for the year ended
December 31, 1996, reflected a net loss applicable to Common Stock
of approximately $405,000, or a net loss of approximately $.05 per
share, as compared to a net loss applicable to Common Stock of
approximately $9,052,000, or a net loss of approximately $1.15 per
share, for the year ended December 31, 1995. For the three months
ended September 30, 1997, the Company had an unaudited consolidated
net income of approximately $157,000 on unaudited consolidated net
revenues of approximately $7,246,000, as compared to an unaudited
consolidated net income of approximately $155,000 on unaudited
consolidated net revenues of approximately $7,734,000 for the three
months ended September 30, 1996. However, for the nine month period
ended September 30, 1997, the Company had an unaudited consolidated
net loss of approximately $1,202,000 on unaudited consolidated net
revenues of approximately $20,882,000, as compared to an unaudited
consolidated net loss of approximately $244,000 on unaudited
consolidated net revenues of approximately $23,484,000 for the nine
months ended September 30, 1996. If the Company is unable to
improve its operations and become profitable on an annualized basis
in the foreseeable future, such inability would have a material
adverse effect on the Company and the Company's ability to operate.
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Defaults on Senior Debt
The Company and its subsidiaries are parties to a Loan and
Security Agreement (''Heller Agreement''), with Heller Financial,
Inc. (''Heller''), which provides a term loan and a revolving
credit facility to the Company. In addition, the Company has an
equipment financing agreement (''Ally Agreement'') with Ally
Capital Corporation (''Ally''). As of September 30, 1997, the
Company owed Heller under the term loan approximately $993,000 and
under the revolving credit facility approximately $2,173,000, and
owed Ally under the Ally Agreement approximately $796,000. As of
September 30, 1997, the Company was, and as of the date of this
Prospectus the Company is, in default of certain financial and
other covenants under the Heller Agreement and the Ally Agreement,
including certain covenants in the Heller Agreement prohibiting the
issuance by the Company of shares of stock other than shares which
Heller has specifically authorized. The Company has not received
consent from Heller to issue various shares of stock, including,
but not limited to (i) the Series 4 Preferred, Series 5 Preferred,
Series 6 Preferred and Series 7 Preferred; (ii) the Series 4
Warrants, Series 6 Warrants, Infinity Warrants, Dionysus Warrant,
and Service Warrants; (iii) Common Stock to be issued in payment of
dividends accrued on, or upon conversion of, the Series 4
Preferred, Series 5 Preferred, Series 6 Preferred and Series 7
Preferred and (iv) Common Stock to be issued upon exercise of the
Series 4 Warrants, Series 6 Warrants, Infinity Warrants, Sun Bank
Warrant, Dionysus Warrant, and Service Warrants. See ''Private
Placements and Exchange Agreements.''
Although Heller and Ally may, under the terms of their
respective agreements with the Company, declare a default and
demand immediate repayment of all amounts due under their
respective agreements, neither has done so and neither has
indicated that it intends to take such action despite being in
default of certain covenants. In addition, Heller has continued
to provide loans to the Company under the revolving credit facility
of the Heller Agreement. If, however, Heller or Ally, or both of
them, were to declare a default and demand immediate repayment
under one or both of their respective agreements, the Company does
not have sufficient liquidity to enable it to make such repayment.
If the Company were unable to negotiate a settlement with Heller
and/or Ally, or obtain alternative financing from Congress or other
external sources, such could have a material adverse effect on the
Company and its ability to continue as a viable entity.
During November, 1997, the Company signed a letter of intent
with Congress Financial Corporation (''Congress'') regarding a
proposed $7,000,000 credit facility (''Congress Loan'') which, as
proposed, would consist of a revolving line of credit of
approximately $4,500,000 and a term loan of approximately
$2,500,000. The Congress Loan, if completed, would be used to
replace the Company's current term loan and revolving loan facility
with Heller, as well as the Company's current equipment financing
arrangements with Ally. Completion of the Congress Loan, however,
is subject to completion by Congress of its due diligence,
completion of loan documentation, and credit approval by Congress.
No assurance can be made that the Congress Loan will close in the
near future or at all.
Potential Environmental Liability
The Company's business involves rendering services in
connection with management of waste, including certain types of
hazardous waste and low level radioactive waste. The nature of
this business is such that the Company cannot avoid exposure to
significant risk of liability for damages. Such liability could
involve, without limitation, (a) claims for clean-up costs,
personal injury or damage to the environment in cases in which the
Company is held responsible for the release of hazardous or
radioactive materials; (b) claims of employees, customers or third
parties for personal injury or property damage occurring in the
course of the Company's operations; and (c) claims alleging
negligence or professional errors or omissions in the planning or
performance of its services or in the providing of its products.
In addition, the Company could be deemed a responsible party for
the cost of clean-up of any property which may be contaminated by
hazardous substances generated by the Company and disposed of at
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such property or transported by the Company to a site selected by
the Company, including properties owned or leased by the Company.
The Company could also be subject to fines and civil penalties in
connection with violations of regulatory requirements. See ''The
Company -- Facility Disruption,'' ''--Potential Environmental
Liability and Certain Environmental Expenditures,'' and ''--
Governmental Regulation.''
Loss Carryovers
Certain of the Company's losses have resulted in net operating
loss carryovers which the Company anticipates may be used to reduce
the federal income tax payments which the Company would otherwise
be required to make with respect to income generated in future
years. The Company had available net operating loss carryovers of
approximately $9,200,000 based on its federal income tax returns as
filed with the Internal Revenue Service (''IRS'') for taxable years
through 1996. The use of the net operating loss carryovers is,
however, subject to certain limitations and will expire to the
extent not utilized by the years 2006 through 2011. See ''The
Company--Availability of Company's Loss Carryovers.'' In addition,
the amount of these carryovers has not been audited or approved by
the IRS, and, accordingly, no assurance can be given that such
carryovers will not be reduced as a result of audits in the future.
Governmental Regulation
The Company's business is subject to extensive, evolving and
increasingly stringent federal, state and local environmental laws
and regulations. Such federal, state and local environmental laws
and regulations govern the Company's activities regarding the
treatment, storage, recycling, disposal and transportation of
hazardous and non-hazardous waste and low level radioactive waste.
The Company must obtain and maintain permits, licenses and/or
approvals in order to conduct such activities in compliance with
such laws and regulations. Failure to obtain and maintain such
permits, licenses and/or approvals would have a material adverse
effect on the Company, its operations and financial condition.
There can be no assurance that the Company will be able to maintain
its currently held permits, licenses and/or approvals or obtain any
additional permits, licenses and/or approvals which may be required
as the Company expands its operations. See ''The Company -- Facility
Disruption,'' ''--Governmental Regulation,'' and ''--Permits and
Licenses.''
Because the environmental industry continues to develop
rapidly, the Company cannot predict the extent to which its
operations may be affected by future enforcement policies as
applied to existing laws, by changes to current environmental laws
and regulations or by the enactment of new environmental laws and
regulations. Any predictions regarding possible liability under
such laws are complicated further by current environmental laws
which provide that the Company could be liable jointly and
severally for certain activities of third parties over whom the
Company has limited or no control. See ''--Potential Environmental
Liability.'' The nature of the standards imposed by federal,
state, and local permitting laws require the Company to incur
certain levels of capital expenditures to maintain compliance with
such standards. See ''The Company -- Facility Disruption,''
'' Potential Environmental Liability and Certain Environmental
Expenditures,'' and ''--Governmental Regulation.''
A lack of liquidity on the part of the Company could have a
negative impact on the Company's ability to remain in compliance
with various federal, state and local environmental regulations.
Violation of such federal, state and local regulations could result
in the loss of one or more of the Company's permits or subject the
Company to substantial fines, penalties or other liabilities that
could have a material adverse impact on the Company's business.
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Facility Disruption
On January 27, 1997, an explosion and resulting fire at the
Memphis, Tennessee facility of PFM resulted in damage to certain
hazardous storage tanks located on the facility and caused certain
limited contamination at the facility. The fire and resulting
explosion were caused by the welding activity of employees of an
independent contractor at or near a hazardous waste tank farm
located on the facility contrary to instructions of PFM. The fire
and explosion at PFM have resulted in the Company incurring
additional losses as a result of being able to carry on only
limited operations at this facility since the fire and explosion
and further resulting in the Tennessee Department of Environment
and Conservation (''TDEC'') taking certain actions against PFM
which could have a material adverse effect on the Company. See
''The Company--Facility Disruption.''
Potential Increase in Litigation
The Company's operations are regulated by numerous laws
regarding procedures for waste treatment, storage, recycling,
transportation and disposal activities. See ''The Company--
Governmental Regulation.'' In recent years, the waste treatment
industry has experienced a significant increase in so-called
''toxic-tort'' litigation as those injured by contamination seek to
recover for personal injuries or property damage. The Company
believes that as the Company's operations and activities expand,
there will be a similar increase in the potential for litigation
alleging that the Company is responsible for contamination or
pollution caused by its normal operations, negligence or other
misconduct or for accidents which occur in the course of the
Company's business activities. Such litigation, if significant and
not adequately insured against, could have a material adverse
effect upon the Company's operations and financial condition. In
addition, involvement in protracted litigation would likely result
in expenditure of significant amounts of the Company's time, effort
and money, and could prevent the management of the Company from
focusing on the operation and expansion of the Company and thereby
result in a material adverse effect upon the Company. See ''--
Potential Environmental Liability.''
Insurance
The business of the Company exposes it to various risks,
including claims for causing damage to property and injuries to
persons which may involve allegations of negligence or professional
errors or omissions in the performance of its services. Such
claims could be substantial. See ''--Potential Environmental
Liability'' and ''--Potential Increase in Litigation.'' The
Company believes that its insurance coverage is presently adequate
and similar to or greater than the coverage maintained by other
companies of its size in the industry. There can be no assurance
that the Company will be able to obtain adequate or required
insurance coverage in the future or, if obtainable, that such
insurance be available at affordable rates. If the Company cannot
obtain or maintain such coverage, it would be a violation of its
permit conditions and other requirements of the environmental laws,
rules and regulations under which the Company operates and the
Company would be unable to continue certain of its operations.
Such events would have a material adverse effect on the Company's
operations and financial condition. See ''The Company--Insurance''
and ''--Facility Disruption.''
Reliance on Key Employees; Attraction and Retention of Qualified
Professionals
The Company is substantially dependent upon the services of
Dr. Louis F. Centofanti, its Chairman, President and Chief
Executive Officer. The loss of Dr. Centofanti could have a
material adverse effect on the Company. The Company's future
success depends on its ability to retain and expand its staff of
qualified personnel, including environmental specialists and
technicians, sales personnel and engineers. There can be no
assurance that the Company will be successful in its efforts to
attract and retain such personnel as their availability is limited
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due to the rapid increase in the demand for hazardous waste
management services and the highly competitive nature of the
hazardous waste management industry.
Dependence on Environmental Regulation and Future Legislation
Demand for the Company's services is substantially dependent
upon the public's concern with, and the continuation and
proliferation of the laws and regulations governing, the treatment,
storage, recycling and disposal of hazardous, non-hazardous and low
level radioactive waste. A decrease in the level of public
concern, the repeal or modification of such laws, or any
significant relaxation of regulations relating to the treatment,
storage, recycling and disposal of hazardous waste and low level
radioactive waste, would significantly reduce the demand for the
services offered by the Company and could have a material adverse
effect on the Company, its operations and financial condition.
Competition
The Company competes with numerous companies which are able to
provide one or more of the environmental services offered by the
Company. Many of the Company's competitors have greater financial,
human and other resources than the Company. The increased
competition in the waste management industry has resulted in
reduced gross margin levels, which are likely to become further
reduced due to several factors: (a) more companies entering the
market as the industry continues to mature; (b) the likely
expansion of the range of services offered by current and future
competitors of the Company; (c) the current efforts of companies
and governmental authorities to encourage waste minimization; and
(d) the existence of fewer unserved markets available for Company
expansion as the Company and its competitors move into new
geographic markets. The increased competition and reduced gross
margin levels could have a material adverse effect on the business
and financial condition of the Company. See ''The Company--
Competitive Conditions.''
Voting Control; Ability to Direct Management
Prior to the conversion of the outstanding shares of the
Company's Series 3 Class C Convertible Preferred Stock, par value
$.001 per share (the ''Series 3 Preferred''), Series 6 Preferred
and Series 7 Preferred or the exercise of any outstanding warrants
and options, approximately 11.8% of the outstanding shares of
Common Stock is held by the Company's executive officers and
directors as of the date of this Prospectus. In addition, such
persons have options or similar other rights to acquire
approximately 2.7% of additional shares of the Company's Common
Stock. Assuming the options and warrants held by the Company's
executive officers and directors which are exercisable within 60
days of the date hereof have been exercised and the Company's
outstanding shares of preferred stock are not converted and no
other outstanding options or warrants are exercised, the Company's
executive officers and directors would beneficially own, as a
group, approximately 14.4% of the outstanding shares of Common
Stock.
As of the date of this Prospectus, RBB Bank holds 931,567
shares of Common Stock, or approximately 8.0% of the outstanding
shares of Common Stock. RBB is also the owner of (i) 4,000 shares
of the Company's Series 3 Preferred, which are convertible into
approximately 2,672,024 shares of Common Stock, assuming the
average closing bid quotation for the Common Stock for the five
trading days immediately preceding each conversion date equals or
exceeds $2.00 per share, and (ii) 2,500 shares of Series 6
Preferred, which are convertible into approximately 1,379,311
shares of Common Stock, assuming the Conversion Price Adjustment is
not in effect, or if in effect, assuming the average closing bid
quotation for the Common Stock for the five trading days
immediately preceding each conversion date equals or exceeds $2.27
per share.
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RBB Bank holds the 1996 RBB Warrants (as defined
under ''Private Placements and Exchange Agreements'') and the
Series 6 Warrants, which together may be exercised for the purchase
of up to 2,656,250 shares of Common Stock. If RBB Bank acquires
(i) an aggregate of an additional 4,051,335 shares of Common Stock
on conversion of the Series 3 Preferred and Series 6 Preferred,
(ii) 2,656,250 shares of Common Stock upon the exercise of the
1996 RBB Warrants and Series 6 Warrants, and (iii) 401,221 shares
of Common Stock which have previously been or herein are being
registered to be issuable for payment of dividends on the Series 3
Preferred and Series 6 Preferred, RBB Bank will own approximately
8,040,373 shares of Common Stock (which includes the 931,567 shares
of Common Stock directly held by RBB Bank as of the date of this
Prospectus), representing approximately 42.9% of the Company's then
outstanding Common Stock, assuming no other options or warrants are
exercised, the Series 7 Preferred is not converted, and the Company
does not issue any additional shares of Common Stock after the date
of this Prospectus other than in connection with the conversion of
the outstanding shares of Series 3 Preferred and Series 6 Preferred
and exercise of the 1996 RBB Warrants and Series 6 Warrants. In
such event, RBB Bank would be the largest shareholder of the
Company, and the Company may not have sufficient remedies to be
able to avoid an actual change in control of the Company if RBB
Bank seeks such a change in control. See ''The Company --Private
Placements and Exchange Agreements'' and ''Selling Shareholders.''
Potential Adverse Effect to Company and Possible Adverse Impact on
Earnings Per Share Upon Exercise of Outstanding Warrants and
Options and Conversion of Outstanding Preferred Stock
The Company has outstanding warrants to purchase up to
approximately 9 ,640,238 shares of Common Stock, including, without
limitation, the 1996 RBB Warrants and Series 6 Warrants, and
outstanding options to purchase up to approximately 1,273,409
shares of Common Stock. The Company is also obligated to issue to
(a) RBB Bank up to approximately 2,672,024 shares of Common Stock
upon conversion of the Series 3 Preferred assuming that the average
closing bid quotation for the Common Stock for five trading days
immediately preceding each of the conversion date or dates of the
Series 3 Preferred equals or exceeds $2.00, and up to approximately
1,379,311 shares upon the conversion of the Series 6 Preferred,
assuming the Conversion Price Adjustment is not in effect, or, if
in effect assuming the average closing bid quotation for the Common
Stock for the five trading days immediately preceding each
conversion date or dates of the Series 6 Preferred equals or
exceeds $2.27, and (b) Infinity up to approximately 200,000 shares
of Common Stock upon conversion of the Series 7 Preferred assuming
the Conversion Price Adjustment is not in effect, or, if in effect,
assuming the average closing bid quotation for Common Stock for the
five trading days immediately preceding each conversion date or
dates of the Series 7 Preferred equals or exceeds $2.27 per share.
Depending on the price of the Common Stock as of the date of
conversion and under certain conditions, the number of shares
issuable upon conversion of the Series 3 Preferred, Series 6
Preferred and Series 7 Preferred may exceed the amounts indicated
above. In addition, the Company intends to pay dividends accruing
on the outstanding shares of Series 3 Preferred, Series 6 Preferred
Stock and Series 7 Preferred in shares of Common Stock rather than
cash if and when declared by the Board of Directors. The terms
of the Heller Agreement provide that all dividends paid on the
Series 3 Preferred must be paid in shares of Common Stock rather
than cash. The Company has not, however, received Heller's consent
to issue the Series 6 Preferred Stock, Series 7 Preferred Stock or
shares of Common Stock to be issued upon conversion thereof or as
dividends thereon. The Company is currently seeking to replace
the loan with Heller and has signed a letter of intent with
Congress regarding such potential replacement financing. See
'' -- Defaults on Senior Debt.''
The issuance of Common Stock pursuant to such warrants,
options, convertible preferred stock, or in payment of dividends on
the Series 3 Preferred, Series 6 Preferred and Series 7 Preferred
could adversely affect the ability of the Company to, and the terms
on which it can, raise additional equity capital. If all or a
substantial portion of such warrants and options are exercised and
all or a substantial portion of the Series 3 Preferred, Series 6
Preferred and Series 7 Preferred are converted into Common Stock,
the issuance of the additional shares of Common Stock will have a
substantial and material adverse impact on an existing
stockholder's ownership percentage of the outstanding shares of
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<PAGE>
Common Stock and may result in a ''change of control'' of the
Company. Moreover, in the event the Company generates net income,
there could be a substantial material adverse impact on earnings
per share if such additional shares are issued and to the extent
the options and warrants are required to be included in the
weighted average shares outstanding calculation. See ''--Voting
Control; Ability to Direct Management,'' ''--Barriers to Takeover''
and ''Private Placements and Exchange Agreements.''
No Dividends Paid
Since its inception, the Company has not paid cash dividends
on its Common Stock. The Company intends to retain future
earnings, if any, to provide funds for the operation and/or
expansion of its business. Accordingly, the Company does not
anticipate paying cash dividends on its Common Stock in the
reasonably foreseeable future. Moreover, the terms of the Heller
Agreement provide that no dividends may be paid on the Common Stock
without Heller's approval.
The terms of the Series 3 Preferred Stock, Series 6 Preferred
Stock, and the Series 7 Preferred Stock allow the Company to pay
dividends on the shares of such preferred stock in cash or Common
Stock. The terms of the Heller Agreement require the Company to
pay the dividends accruing on the shares of Series 3 Preferred
Stock in shares of Common Stock if and when declared and paid by
the Board of Directors of the Company. The Company currently
intends to pay the dividends accruing on the shares of Series 3
Preferred, Series 6 Preferred Stock and the Series 7 Preferred
Stock in shares of Common Stock if and when declared and paid by
the Board of Directors of the Company. The Company has not,
however, received Heller's consent to issue the Series 6 Preferred
Stock, Series 7 Preferred Stock or shares of Common Stock to be
issued upon conversion thereof or as dividends thereon. The
Company is currently seeking to replace the loan with Heller and
has signed a letter of intent with Congress regarding such
potential replacement financing. See ''--Defaults on Senior
Debt,'' ''--Potential Adverse Effect to the Company and
Possible Adverse Impact on Earnings Per Share Upon Exercise of
Outstanding Warrants and Options'' and ''Private Placements and
Exchange Agreements.''
Barriers to Takeover
The Company is a Delaware corporation and is governed, in
part, by the provisions of Section 203 of the General Corporation
Law of Delaware, an anti-takeover law enacted in 1988. In general,
Section 203 prohibits a Delaware public corporation from engaging
in a ''business combination'' with an ''interested stockholder''
for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless the
business contribution is approved in a prescribed manner. As a
result of Section 203, potential acquirers of the Company may be
discouraged from attempting to effect acquisition transactions with
the Company, thereby possibly depriving holders of the Company's
securities of certain opportunities to sell or otherwise dispose of
such securities at above-market prices pursuant to such
transactions. Further, the Company's 1991 Performance Equity Plan,
1992 Outside Directors Stock Option Plan and 1993 Nonqualified
Stock Option Plan provide for the immediate acceleration of, and
removal of restrictions from, options and other awards under such
plans upon a ''change of control'' (as defined in the respective
plans). Such provisions may also have the result of discouraging
acquisitions of the Company. See ''--Voting Control'' and ''--
Ability to Direct Management.''
RBB Bank has the right to acquire an aggregate of
approximately 6,707,585 shares of Common Stock, consisting of (i)
2,672,024 shares upon conversion of the issued and outstanding
Series 3 Preferred assuming the average closing bid quotation for
the Common Stock for five trading days immediately preceding each
of the conversion date or dates equals or exceeds $2.00 per share
and (ii) 1,379,311 shares upon conversion of the issued and
outstanding Series 6 Preferred assuming the Conversion Price
Adjustment is not in effect, or, if in effect, assuming the average
closing bid quotation for the Common Stock for five trading days
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immediately preceding each of the conversion date or dates equals
or exceeds $2.27 per share and (iii) 2,656,250 shares upon the
exercise of the 1996 RBB Warrants and Series 6 Warrants. Upon such
conversion and exercise, RBB Bank will own approximately 41.7% of
the outstanding shares of Common Stock of the Company, which
includes the 931,567 shares of Common Stock directly held by RBB
Bank as of the date of this Prospectus but does not include the
401,221 shares of Common Stock which have previously been or herein
are being registered to be issuable for payment of dividends on the
Series 3 Preferred and Series 6 Preferred. This estimate assumes
that the Series 7 Preferred is not converted and that no shares of
Common Stock are issued by the Company after the date of this
Prospectus, other than in connection with the conversion of the
outstanding shares of Series 3 Preferred and Series 6 Preferred and
exercise of the 1996 RBB Warrants and Series 6 Warrants. In such
event, RBB Bank will be the largest single stockholder of the
Company and will have such a significant number of shares of Common
Stock within its control that the Company may have insufficient
remedies to avoid an actual change in control of the Company in
favor of RBB Bank. If RBB Bank obtains ownership of an additional
substantial percentage of Common Stock of the Company, it could
prevent or discourage other persons from attempting to acquire the
Company even if RBB Bank does not obtain control of the Company.
See ''--Voting Control; Ability to Direct Management'' and
''Private Placements and Exchange Agreements.''
THE COMPANY
Company Overview
The Company is a Delaware corporation organized in 1990. The
Company is engaged, through its subsidiaries, in the (a) waste
management services, consisting of treatment, storage, recycling,
and disposal of hazardous and non-hazardous industrial and
commercial wastes, and the storage, treatment and disposal of
certain low-level radioactive waste; and (b) consulting and
engineering services to industry and government for broad-scope
environmental problems. In recent years, the Company has grown
through acquisitions and internal development. The Company's
primary subsidiaries in the waste management services are:
* Perma-Fix Treatment Services, Inc. (''PFTS'') located in
Tulsa, Oklahoma;
* Perma-Fix of Florida, Inc. (''PFF'') located in Gainesville,
Florida;
* Perma-Fix of Dayton, Inc. (''PFD'') located in Dayton, Ohio;
* Perma-Fix, Inc. (''PFI'') located in Tulsa, Oklahoma;
* Perma-Fix of Ft. Lauderdale, Inc. (''PFFL'') located in
Davie, Florida;
* Perma-Fix of Memphis, Inc. (''PFM'') located in Memphis,
Tennessee.
The Company's primary subsidiaries in the consulting and
engineering services are:
* Mintech, Inc., located in Tulsa, Oklahoma, and
* Schreiber, Grana & Yonley, Inc., located in St. Louis,
Missouri.
The Company's executive offices are located at 1940 N.W. 67th
Place, Gainesville, Florida 32653.
Principal Products and Services
The Company is engaged in two lines of business: (a) waste
management, including off-site and on-site services for the
treatment, storage, recycling, and disposal of hazardous, non-
hazardous and mixed low-level radioactive and hazardous wastes; and
(b) environmental engineering and consulting services specializing
in environmental management programs, agency communications,
regulatory permitting, compliance and auditing, landfill design,
field testing and characterization. The Company presently services
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institutions, commercial companies, and governmental agencies
nationwide. Distribution channels for services are through direct
sales to customers by the Company's sales force or via
intermediaries.
New Process
The Company has developed a new process (''New Process'')
designed to remove certain types of organic hazardous constituents
from soils or other substrates (''Soils''). This New Process will
be used at PFF's facility and is designed to remove the organic
hazardous constituents from the Soils through a water based system.
The Company has filed a patent application with the U. S. Patent
and Trademark Office covering the New Process. As of the date of
this Prospectus, the Company has not received a patent for the New
Process, and there are no assurances that such a patent will be
issued to the Company.
Until development by the Company of this New Process, the
Company was not aware of a relatively simple and inexpensive
process that would remove the organic hazardous constituents from
Soils without elaborate and expensive equipment or expensive
treating agents. Due to the organic hazardous constituents
involved, the disposal options for such materials are extremely
limited, resulting in high disposal cost when there is a disposal
option available. By removing the organic hazardous waste
constituents from the Soils to a level where the Soils may be
returned to the ground, the generator's disposal options for such
waste are substantially increased, allowing the generator to
dispose of such waste at substantially less cost.
As of the date of this Prospectus, the Company has only
performed limited testing on the New Process and has not developed
the New Process for commercial use. As a result, there are no
assurances that the New Process will perform as presently expected,
once such is developed for commercial use. It is anticipated that
the Company will have developed the New Process and such will be
ready for commercial use on or before the end of 1998. Further,
changes to current environmental laws and regulations could limit
the use of the New Process or the disposal options available to the
generator. See ''-- Permits and Licenses.''
Facility Disruption
On January 27, 1997, a fire and explosion occurred at the PFM
facility in Memphis, Tennessee, which resulted in damage to
certain hazardous waste storage tanks located on the facility and
caused certain limited contamination at the facility. The facility
was not operational from the date of the fire until limited
operations resumed during May, 1997. Since May 1997, PFM has
operated this facility on a limited basis and has (a) accepted
waste for processing and disposal, but has arranged for other
facilities owned by the Company or subsidiaries of the Company or
others not affiliated with the Company to process such waste, and
(b) ceased all fuel blending at the facility. The Company is
currently evaluating the extent of PFM's activities at this
facility and various options available to the Company in connection
therewith, including the move of all or a portion of PFM's Memphis,
Tennessee operations to a new facility on a short or long-term
basis is, subject to, among other things, PFM being able to receive
necessary permits for such a move and PFM having sufficient
liquidity to make such a move.
During the period of limited operations of PFM's Memphis,
Tennessee facility, the utilization of other facilities to process
waste has resulted in higher costs to PFM than if PFM were able to
process waste at its Memphis, Tennessee facility, along with the
additional handling and transportation costs associated with these
activities. The net revenues for PFM were approximately $1,514,000
for the nine months ended September 30, 1997, reflecting a decrease
of approximately $1,386,000 or approximately 48% from PFM net
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revenues from the nine months ended September 30, 1996, of
approximately $2,900,000. The Company and PFM have property and
business interruption insurance. The Company has settled its
property and contents claim for $522,000, less a retention of
$25,000. The Company is in the process of negotiating with its
insurance carrier regarding the amount of business interruption
insurance that may be recoverable by PFM as a result thereof, if
any. The inability to recover PFM's losses under such insurance
may have a material adverse effect on the Company. See ''--
Potential Environmental Liability.''
As a result of the explosion and resulting tank fire at the
PFM facility, the TDEC issued an order dated April 23, 1997 (the
''TDEC Order''), which alleges that the facility violated certain
hazardous waste rules and regulations promulgated by the TDEC. The
TDEC Order assessed a penalty of approximately $144,000 and
ordered, among other things, that (a) the facility cease blending
operations, (b) the facility's permit to construct a new hazardous
waste tank storage area, which has not yet been constructed, be
revoked, and (c) PFM implement certain other actions. PFM has
responded to the TDEC Order and asserted that the TDEC Order was
issued against the wrong party, that PFM did not violate any rules
and regulations promulgated by the TDEC, that the actions taken by
the TDEC were contrary to applicable rules and regulations and that
the TDEC is not entitled to such penalties. The Company intends
for PFM to vigorously defend itself in connection with this matter.
As a result of the TDEC Order, the EPA has made a determination
(''EPA Determination'') that PFM's Memphis, Tennessee facility is
unacceptable for the receipt of waste generated under the
Comprehensive Environmental Response Compensation and Liability Act
of 1980 (''CERCLA''). PFM's Memphis, Tennessee facility, however,
has not accepted a material amount of CERCLA waste in the past and,
therefore, the Company believes the EPA Determination will not have
a material adverse effect on the Company. If the Company is not
successful in its defense of the TDEC Order, and the current terms
of the TDEC Order are enforced, such could have a material adverse
effect on the Company. See ''Risk Factors--Facility Disruption.''
Potential Environmental Liability and Certain Environmental
Expenditures
In May 1995, PFM, a subsidiary of the Company which was
purchased in December 1993 and was formerly known as American
Resource Recovery Corporation (''ARR''), became aware that the U.S.
District Attorney for the Western District of Tennessee and the
Department of Justice (the ''DOJ'') were investigating certain
prior activities of W. R. Drum Company (''Drum''), its successor,
First Southern Container Company, and any other facility owned or
operated, in whole or in part, by Johnnie Williams. In May and
September 1995, PFM received a Grand Jury Subpoena which demanded
the production of any documents in the possession of PFM pertaining
to Drum, First Southern Container Company, or any other facility
owned or operated, and held in part, by Johnnie Williams. PFM
complied with each Grand Jury Subpoena. In December 1995,
representatives of the DOJ advised PFM that it was also currently
a subject of the investigation involving Drum, First Southern
Container Company, and/or Johnnie Williams. Since December 1995,
PFM has not heard from, or been in contact with, the DOJ regarding
this investigation. In accordance with certain provisions of the
Agreement and the Plan of Merger relating to the prior acquisition
of PFM, on or about January 2, 1996, PFM notified Ms. Billie K.
Dowdy, the sole shareholder of PFM prior to its acquisition by the
Company, of the foregoing, and advised her that the Company and PFM
would look to Ms. Dowdy to indemnify, defend and hold the Company
and PFM harmless from any liability, loss, damage or expense
incurred or suffered as a result of, or in connection with, this
matter.
Recently, PFM was notified by the United States Environmental
Protection Agency (''EPA'') that the EPA had conducted remediation
operations at a site owned and operated by Drum in Memphis,
Tennessee (the ''Drum site'') at the approximate cost of
$1,500,000, and that the EPA was now seeking information regarding,
among other things, details regarding transportation of materials
by others (such as ARR and PFM) to the Drum site and parties that
may be a ''potentially responsible party'' (''PRP'') as defined
under CERCLA, regarding the Drum site as a result of delivering
hazardous waste containers to Drum during the time of its
operation. The EPA has orally informed PFM that PFM may be a PRP
regarding the remediation of the Drum site. If the EPA believes
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PFM, as a result of acts by ARR prior to the time ARR was acquired
by the Company, is a PRP regarding the Drum site, the EPA may seek
to require PFM to pay the cost of part or all of the remediation
which has been performed at the Drum site. Although the Company
does not believe that it is a PRP regarding the Drum site, no
assurance can be made that the Company will not be deemed a PRP for
the Drum site and will not have to pay for part or all of the cost
of remediation of such site. If PFM is determined to be a PRP
regarding the Drum site and were determined to be liable for all or
a substantial portion of the remediation cost of the Drum site,
such could have a material adverse effect on the Company. See ''--
Governmental Regulations.''
For 1997, the Company budgeted capital expenditures of
$1,250,000 for improving operations and maintaining permit
compliance at its various TSD facilities (excluding capital
expenditures due to the January, 1997, fire and explosion at the
PFM facility) and $350,000 to comply with federal, state, and local
regulations in connection with remediation activities by PFD at the
Leased Property (as defined below), and the PFM facility, of which
$165,000 has been spent as of September 30, 1997. The Company
believes that these expenditures are necessary to remain
competitive or to maintain compliance with federal, state or local
environmental requirements. As of September 30, 1997, the
Company's net purchases of new capital equipment totaled
approximately $1,185,167. The Company anticipates financing the
remainder of these expenditures by, without limitation, a
combination of lease financing and/or utilization of the equity
raised in the RBB Private Placement and the Infinity Private
Placement.
PFD is required to remediate a parcel of formerly leased
property (''Leased Property'') which was formerly operated as a
RCRA storage and solvent recycling facility by a company that was
merged with PFD prior to the Company's acquisition of PFD. The
Leased Property contains certain contaminated waste in the soils
and groundwater. The Company was indemnified by the seller of PFD
for costs associated with remediating the Leased Property, which
entails remediation of soil and/or groundwater restoration.
However, the seller filed for bankruptcy in 1995. Prior to the
acquisition of PFD by the Company, the seller had established a
trust fund (''Trust Fund'') to support the remedial activity on the
Leased Property pursuant to an agreement with the Ohio
Environmental Protection Agency (''Ohio EPA''). The Trust Fund was
funded with the seller's stock. The value of the seller's stock
subsequently declined and the stock was sold by the Trustee of
Trust Fund after the Company's acquisition of PFD and prior to the
seller's bankruptcy filing. The decline in the value of the
seller's stock resulted in a shortfall in the value of the Trust
Fund, and the Company was required to deposit $250,000 into the
Trust Fund. The current balance in the Trust Fund is approximately
$342,000. The Company has accrued approximately $925,000 for the
estimated costs of remediating the Leased Property, which is in
excess of the current estimate for completion and is estimated to
extend over a period of three to five years. While the Company
believes that its expenditures towards remediation of the Leased
Property will not have a material adverse effect upon the Company,
no assurance can be made that the remediation process will not
prove to be more difficult or costly than anticipated or that the
Company's remediation expenditures will not have a material adverse
effect on the Company's operations and financial condition.
Prior to the Company's acquisition of PFM, gasoline had been
detected in the groundwater at the PFM facility. In the
acquisition process, the Company assumed certain liabilities to
remediate gasoline contaminated groundwater and to investigate
potential areas of soil contamination at the PFM facility. The
previous owners of PFM installed monitoring and treatment equipment
to restore the groundwater to acceptable standards in accordance
with federal, state and local authorities. The Company is
continuing this restoration process and anticipates expenditures of
approximately $1,050,000 over the next five to ten years to
remediate the prior contamination.
The PFM facility is situated in the vicinity of the Memphis
Defense Depot (the ''Defense Facility''). The Defense Facility is
listed as a Superfund site. The Defense Facility is adjacent to
the Allen Well Field utilized by Memphis Light, Gas & Water to
provide public water to Memphis, Tennessee. Chlorinated compounds
have been detected in the groundwater beneath the Defense Facility,
as well as in a limited number of certain production wells in the
Allen Well Field. Very low concentrations of certain chlorinated
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compounds also have been detected in the groundwater beneath the
PFM facility. The Company is currently investigating the possible
presence of these compounds. Based upon a study performed by the
Company's environmental engineering group, the Company does not
believe the PFM facility is the source of the chlorinated compounds
in the Allen Well Field. Accordingly, the Company does not believe
that the presence of the low concentrations of chlorinated
compounds at the PFM facility will have a material adverse effect
upon the Company. If the Company is determined to be the source of
such contamination, any liabilities, obligations to remediate, or
penalties associated with such contamination, could have a material
adverse effect upon the Company.
The explosion and fire at the PFM facility in January, 1997,
caused limited contamination at the facility. The Company is in
the process of repairing and/or replacing the damaged storage tanks
and any contamination resulting from the occurrence. The Company
and PFM have provided notice to their property and business
interruption insurance carriers of such loss and have settled the
property and contents claim for $522,000, less a retention of
$25,000, which the Company anticipates, but there is no assurance,
will cover substantially all of the costs to repair or remove tanks
damaged at PFM's facility. See ''Risk Factors--Facility
Disruption''; ''--Potential Environmental Liability,'' The Company
is in the process of negotiating with its insurance carrier
regarding the amount of business interruption insurance that may be
recoverable by PFM, if any.
Insurance
The Company currently maintains general liability insurance
coverage of $1 million per occurrence, with $2 million in the
aggregate plus an additional $6 million excess umbrella coverage.
In addition, the Company carries contractors' operations and
professional liability coverage of $1 million per occurrence and $2
million in the aggregate subject to a $50,000 deductible. The
Company is required by EPA regulations to carry environmental
impairment liability insurance providing coverage for off-site
damages on a ''claims made'' basis in amounts of at least $1
million per occurrence and $2 million per year in the aggregate.
To meet the requirements of customers, the Company has doubled
these coverage amounts to $2 million per occurrence and $4 million
per year in the aggregate. In addition, the deep well operated by
PFTS located in Tulsa, Oklahoma, carries environmental impairment
liability insurance of $4 million per occurrence and $8 million per
year in the aggregate. The cost of the Company's insurance is
substantial and is expected to increase. See ''Risk Factors--
Insurance.''
Governmental Regulation
Various federal, state and local laws and regulations have
been enacted regarding the handling and management of waste. These
laws create liability for environmental contamination caused by
such handling and management. The Company will likely be subject
to extensive compliance review by federal, state and local
environmental regulatory authorities. The Company has implemented
or intends to implement procedures at each of its facilities
designed to help assure compliance with applicable environmental
laws and regulations. Noncompliance with environmental laws and
regulations, including failure to implement required procedures
regarding such laws and regulations, could result in civil or
criminal enforcement actions or private actions, mandatory cleanup
requirements, revocation of required permits or licenses, denial of
applications for future permits, or significant fines, penalties or
damages, any of which could have a material adverse effect on the
Company, its operations and financial condition.
In connection with the Company's waste management services,
the Company may generate from time to time both hazardous and non-
hazardous waste which it transports to other facilities for
destruction or disposal. The Company also acts as a broker for
customers in connection with the transportation, treatment and/or
disposal of hazardous and non-hazardous waste. As a generator or
broker of hazardous substances delivered to a disposal facility,
the Company could be a PRP notwithstanding any absence of fault on
the part of the Company. If the Company were deemed a responsible
party, it could be subject to substantial clean-up costs, fines and
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penalties. Specifically, liability is joint and several under
CERCLA, which authorizes the EPA or a private party to require
companies to remediate contaminated or polluted sites.
Accordingly, the Company could be held responsible under CERCLA for
clean-up costs at a site as to which it is deemed a responsible
party regardless of its proportionate responsibility for the site
pollution. While the Company believes that, as a practical matter,
the EPA and the courts attempt to allocate clean-up costs for a
site among the various potentially responsible parties, no
assurance can be made that such allocation would occur if the
Company is deemed a responsible party for a clean-up site. If the
Company is deemed a responsible party regarding one or more sites,
the resulting liability could have a material adverse effect on the
Company's operations and financial condition. Further, the Company
will be liable to remediate sites on which it operates its
hazardous waste treatment, storage and disposal (''TSD'')
facilities under the Resource Conservation and Recovery Act of
1976, as amended (''RCRA''), if such sites become contaminated.
The Company is, as of the date of this Prospectus, remediating one
site on which it operates a RCRA permitted treatment and storage
facility that became contaminated prior to being acquired by the
Company in 1993, one site that was leased by a company subsequently
acquired by the Company in 1994 and has been advised by the EPA
that it is investigating whether PFM is a PRP as to the Drum site.
See ''Risk Factors Potential Environmental Liability'' and
'' Potential Environmental Liability and Certain Environmental
Expenditures.''
Permits and Licenses
The Company's business is subject to extensive, evolving and
increasingly stringent federal, state and local environmental laws
and regulations. Such federal, state and local environmental laws
and regulations govern the Company's activities regarding the
treatment, storage, recycling, blending, disposal and
transportation of hazardous, non-hazardous and low level
radioactive waste. These laws and regulations require the Company
to obtain and maintain permits, licenses and/or approvals in order
to conduct its hazardous, non-hazardous and low-level radioactive
waste activities. Failure to obtain and maintain such permits or
approvals would have a material adverse effect on the Company, its
operations and financial condition. There can be no assurance that
the Company will be able to maintain its currently held permits and
approvals, and as the Company continues to expand its operations
there can be no assurance that the Company will be able to obtain
any additional approvals or permits which may be required. See ''-
- -Governmental Regulations,'' ''--Facility Disruption'' and ''Risk
Factors--Governmental Regulation.''
PFTS provides transportation, treatment, storage and disposal
of liquid hazardous and non-hazardous wastes, stabilization of
liquid and solid drum residues, and deepwell injection services to
manufacturing companies located generally in the southwestern
portion of the United States. Prior to disposal of the liquid
waste in the deepwell, all hazardous liquids are processed in a
manner designed to destroy or eliminate the hazardous
characteristics of the liquids. These liquids, along with non-
hazardous liquids, can be injected into the deep well that has been
specifically designed and constructed for this purpose. PFTS has
a final RCRA Part B permit to store and treat hazardous waste at
its facility. PFTS operates its non-hazardous waste deepwell under
a permit issued by the State of Oklahoma.
PFM is a permitted facility that provides transportation,
storage and treatment services to hazardous and non-hazardous waste
generators throughout the United States. PFM operates a hazardous
waste storage facility that accepts hazardous and non-hazardous
waste liquids, solids and sludges. Until the fire and explosion at
PFM's facility in January, 1997, PFM blended and processed such
hazardous and non-hazardous waste into substitute fuel to be burned
in cement kilns that have been specially permitted for the
processing of hazardous and non-hazardous wastes as fuels.
As a result of the explosion and resulting tank fire at PFM's
facility, the TDEC issued the TDEC Order which alleges that the
facility violated certain hazardous waste rules and regulations
promulgated by the TDEC. The TDEC Order assessed a penalty of
approximately $144,000 and ordered, among other things, that (a)
the facility cease blending operations, (b) the facility's permit
to construct a new hazardous waste tank storage area, which has not
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yet been constructed, be revoked, and (c) PFM implement certain
other actions. PFM has responded to the TDEC Order and asserted
that the TDEC Order was issued against the wrong party, that PFM
did not violate any rules and regulations promulgated by the TDEC,
that the actions taken by the TDEC were contrary to applicable
rules and regulations and the TDEC is not entitled to such
penalties. The Company intends for PFM to vigorously defend itself
in connection with this matter. If the Company is not successful
in its defense and the current terms of the TDEC Order are
enforced, the TDEC Order could have a material adverse effect on
the Company. See ''Risk Factors--Potential Environmental
Liability,'' ''Risk Factors--Facility Disruption,'' and ''--
Facility Disruption.''
PFF handles hazardous waste and treatment of waste liquid
scintillation vials, a mixed low-level radioactive/hazardous
(flammable) waste used primarily by the medical research and
treatment industry. PFF operates under a final RCRA permit and a
low level radioactive license issued by the appropriate authorities
of the State of Florida. PFF's low-level radioactive license was
issued on August 18, 1995, and amended on March 13, 1996 to allow
expanded low-level radioactive waste management activities. It is
intended that the New Process will operate under existing permits
granted to PFF, and, as a result, the operations of the New Process
will be limited. The Company is currently exploring expanded uses
of the New Process, which expanded uses may require additional or
modified permits. There is no assurance that PFF can obtain the
additional or modified permits to expand the uses of the New
Process.
PFD operates a permitted hazardous waste treatment and storage
facility to collect and treat oily waste waters and used oil from
both small and large quantity generators. PFD also provides
hazardous waste treatment services for collecting and processing
organic solvents, sludges, and solids for use as secondary fuels in
cement kilns. PFD operates under a RCRA Part B permit which was
granted January 3, 1996.
Subject to the Company and satisfactorily resolving the TDEC
Order, the Company believes that its TSD facilities have, as of the
date of this Prospectus, obtained all approvals, licenses and
permits necessary to enable it to conduct its business as presently
conducted. The failure of the Company's TSD facilities to renew
any of their present approvals, licenses and permits, or the
termination of any such approvals, licenses or permits, could have
a material adverse effect on the Company, its operations and
financial condition. See ''Risk Factors--Governmental Regulation''
and ''The Company--Facility Disruption.''
As an alternative to off-site waste treatment and disposal
methods, PFI conducts waste treatment services at the site of the
waste generator. PFI's services include converting certain types
of characteristic hazardous wastes into non-hazardous waste and
treating non-hazardous waste. The Company believes that PFI's on-
site waste treatment services do not require federal environmental
permits provided certain conditions are satisfied. PFI has
received written verification from each state in which it is
presently operating that no such permit is required provided
certain conditions are satisfied. Neither PFI nor the Company has,
however, received any such verification from the federal
government. There can be no assurance that states in which PFI
presently does business or the federal government will not enact
policies or regulations requiring PFI to obtain permits to conduct
its on-site activities.
The Company believes that the licensing requirements for the
New Process may be accomplished through modification of licenses
currently held by the Company, however, no assurance can be made
that the New Process will be approved for use or that it will not
require separate license applications in the future which may
involve the expenditure of certain of the Company's resources to
accomplish.
Competitive Conditions
The Company competes with numerous companies which are able to
provide one or more of the environmental services offered by the
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Company. Many of the Company's competitors have greater financial,
human and other resources than the Company. The increased
competition in the waste management industry has resulted in
reduced gross margin levels which are likely to reduce further due
to several factors: (a) more companies entering the market as the
industry matures; (b) the likely expansion of the range of services
offered by current and future competitors of the Company; (c) the
current efforts of companies and governmental authorities to
encourage waste minimization policies, and (d) fewer underserved
markets available for Company expansion as the Company and its
competitors move into new geographic markets. The increased
competition and reduced gross margin levels could have a material
adverse effect on the business and financial condition of the
Company. See ''Risk Factors -Competition.''
The Company believes that it is a significant participant in
the delivery of off-site waste treatment services in the Southeast,
Midwest and Southwest. The Company competes with TSD facilities
operated by national, regional and independent environmental
services firms located within a several hundred mile radius of the
Company's facilities.
The Company's competitors for remediation services include
national and regional environmental services firms that may have
larger environmental remediation staffs and greater resources than
the Company. The Company recognizes its lack of technical and
financial resources necessary to compete for larger remediation
contracts. Accordingly, the Company presently concentrates on
remediation services projects within its existing customer base or
projects in its service area which are too small for companies
without a physical presence in the market to perform competitively.
Environmental engineering and consulting services provided by
the Company through its engineering companies involve competition
with larger engineering and consulting firms. The Company believes
that it is able to compete with these firms based on its
established reputation in its market areas and its expertise in
several specific elements of environmental engineering and
consulting such as cement kiln waste recycling programs.
The Company believes that the barriers of entry for companies
seeking to compete with the Company in the waste management
industry are dependent upon the specific service to be offered.
Consequently, the Company believes that its operations which
provide certain services are more likely to encounter increased
competition in the future. The Company believes that there are no
formidable barriers to entry into the on-site treatment business
within which the Company operates. Similarly, certain of the
Company's non-hazardous waste operations engage in businesses which
do not present any formidable barriers of entry. However, the
Company believes that the permitting requirements and the cost to
obtain such permits may be barriers of entry into the business of
providing hazardous and low-level radioactive waste TSD facilities
as presently operated by the Company. The Company's business of
providing low level radioactive and hazardous waste recycling of
liquid scintillation vials requires both a radioactive permit and
a hazardous waste permit, and the Company believes that this dual
permitting requirement is a substantial barrier of entry. The
Company believes that only one other facility in the United States
currently provides low level radioactive and hazardous waste
recycling of liquid scintillation vials. If the permit
requirements for hazardous waste TSD activities and/or the handling
of low level radioactive materials are eliminated or if such
permits become easier to obtain, the Company believes that more
companies will enter these markets and provide greater competition
to the Company, which could have a material adverse effect on the
Company, its operations and financial condition.
The Company believes that consumers of waste management
services currently focus primarily on the quality and timeliness of
service. However, the Company anticipates that price will become
an increasingly important competitive factor as the industry
matures. Accordingly, the revenues generated from, and the
profitability of, certain of the Company's services may be reduced
as price competition intensifies. This reduction could have a
material adverse effect on the business and financial condition of
the Company. Many of the Company's competitors are larger and more
established, with greater marketing, financial, human and other
resources than the Company. These competitors will provide
significant long-term competition. The Company also expects
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competition to intensify as technological and other advances are
made in the waste treatment fields and as public awareness of the
hazardous waste disposal problem increases.
Availability of Company's Loss Carryovers
The Company anticipates that its cash flow in future years
will benefit from its ability to utilize net operating loss
(''NOL'') carryovers from prior periods. The NOL carryovers should
reduce the federal income tax payments which the Company will
otherwise be required to make with respect to income generated in
future years. Based upon its federal income tax returns as filed
with the IRS for taxable years through 1996, the Company estimates
that it had on a consolidated basis available NOL carryovers of
approximately $9,200,000 for federal income tax purposes. These
NOL carryovers will expire to the extent not utilized by the years
2006 through 2011. See ''Risk Factors--Loss Carryovers.''
The amount of NOL carryovers has not been audited or approved
by the Internal Revenue Service (''IRS'') and no assurance can be
given that such carryovers will not be reduced as a result of
future audits. In addition, the ability of the Company to utilize
these carryovers in the future will be subject to a variety of
limitations applicable to corporate taxpayers generally under both
the Internal Revenue Code of 1986, as amended (the ''Code''), and
the Treasury Regulations. These include, in particular,
limitations imposed by Code Section 382 (''382 Limitations'').
The 382 Limitations provide certain limitations on the
utilization of NOL carryovers following a more than 50% change (by
value) in the stock ownership of company. In general, the 382
limitations apply when, within a three year ''testing period'',
there is a more than 50 percentage point increase in the stock of
a company that has an NOL held by one or more persons who own
(directly or constructively) at least 5% of such Company's stock
(with persons who separately are less than 5% shareholders
generally being treated in the aggregate as a single shareholder)
over the lowest percentage of stock of such company owned by such
person(s) at any time during the testing period. The amount of the
percentage point increase in stock ownership is calculated for each
5% shareholder, and the increase of each 5% shareholder is
aggregated with the increases of other 5% shareholders to determine
the total percentage point increase in stock ownership. For
purposes of these tests, stock issuable upon the exercise of
certain options and warrants or upon the conversion of preferred
stock may be treated as outstanding.
The use of approximately $7,800,000 of the approximate
$9,200,000 in NOL carryovers as of the taxable year ending
December 31, 1996, is limited to a certain extent in future years
by reason of certain acquisitions and the issuance of various
series of preferred stock of the Company, including, but not
limited to, the Series 3 Preferred and Series 6 Preferred. See
''Private Placements and Exchange Agreements -- RBB Private Placement
and -- RBB Exchange Agreement.'' Each taxable year after 1996,
approximately $1,500,000 of the approximate $7,800,000 in 382
Limitations is no longer limited, and after six years, all of the
approximate $9,200,000 in NOL carryovers will be available for use
by the Company for federal income tax purposes, except to the
extent such has been previously used to reduce the Company's
federal income tax payments or such has been reduced by the IRS in
connection with audits conducted by the IRS.
PRIVATE PLACEMENTS AND EXCHANGE AGREEMENTS
RBB Private Placement
On or about June 11, 1997, the Company issued to RBB Bank
2,500 shares of newly-created Series 4 Class D Convertible
Preferred Stock, par value $.001 per share (the ''Series 4
Preferred'') at a price of $1,000 per share, for an aggregate sales
price of $2,500,000 (''RBB Private Placement''). The sale to RBB
Bank was made in a private placement under Rule 506 of Regulation
D under the Securities Act, pursuant to the terms of a Subscription
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and Purchase Agreement, dated June 9, 1997, between the Company and
RBB Bank (''RBB Subscription''). As part of the sale of the Series
4 Preferred, the Company also issued to RBB Bank certain warrants
(''Series 4 Warrants'') entitling RBB Bank to purchase, after
December 31, 1997 and until June 9, 2000, an aggregate of up to
375,000 shares of Common Stock, subject to certain antidilution
provisions, with 187,500 shares exercisable at a price equal to
$2.10 per share and 187,500 shares exercisable at a price equal to
$2.50 per share. The Company received net proceeds of
approximately $2,287,500 under the RBB Private Placement after the
payment of placement fees and legal fees. The Company has used the
net proceeds from the RBB Private Placement to reduce the
outstanding balance under its revolving credit facility under the
Heller Agreement, but has continued to borrow under such revolving
credit facility after such reduction.
The Company paid fees (excluding legal and accounting) of
$200,000 in connection with the RBB Private Placement and issued to
JW Charles, the investment banking firm that handled the RBB
Private Placement, the Charles Warrants, entitling JW Charles to
purchase (a) until June 9, 2000, up to 200,000 shares of Common
Stock at an exercise price of $2.00 per share, subject to certain
antidilution provisions; and (b) until June 9, 2002, up to 100,000
shares of Common Stock, at an exercise price of $1.50 per share,
subject to certain antidilution provisions. Under the terms of the
Charles Warrants, JW Charles is entitled to certain registration
rights with respect to the shares of Common Stock issuable on the
exercise of each warrant.
In connection with the RBB Private Placement, the Company
issued (i) two warrants to Karl H. Ehlert, each to purchase 175,000
shares of Common Stock for five years, with the first having an
exercise price of $2.00 per share and the second having an exercise
price of $3.00 per share; (ii) two warrants to R. Keith Fetter,
each allowing the purchase of up to 75,000 shares of Common Stock
for three years, with the first having an exercise price of $2.00
per share and the second having an exercise price of $2.50 per
share and (iii) one warrant to Dionysus Limited allowing the
purchase of up to an aggregate of 100,000 shares of Common Stock
for three years at an exercise price of $1.70 per share. These
warrants were issued for various consulting services rendered to
the Company. Heller has not consented to issuance of the Series
4 Preferred, the Series 4 Warrants, warrants issued to JW Charles,
Karl H. Ehlert, R. Keith Fetter, or Dionysus Limited or to the
issuance of shares of Common Stock to be issued upon exercise of
such warrants. See ''Risk Factors -- Defaults on Senior Debt.''
RBB Exchange Agreement
Pursuant to the RBB Exchange Agreement, the Company and RBB
Bank exchanged the 2,500 shares of Series 4 Preferred and the
Series 4 Warrants for (i) 2,500 shares of Series 6 Preferred, (ii)
two warrants each allowing the purchase of up to 187,500 shares of
Common Stock at an exercise price of $1.8125 per share, and (iii)
one warrant to purchase 281,250 shares of Common Stock at an
exercise price of $2.125 per share (collectively, the ''Series 6
Warrants''). The Series 6 Warrants may be exercised at any time
after December 31, 1997, and until June 9, 2000. Heller has not
consented to issuance of the Series 6 Warrants or shares of Common
Stock to be issued upon exercise thereof, or to the issuance of
Series 6 Preferred or shares of Common Stock to be issued upon
conversion thereof or in payment of dividends thereon. See ''Risk
Factors -- Defaults on Senior Debt.''
The rights of the Series 6 Preferred are substantially the
same as the rights under the Series 4 Preferred, except for certain
conversion rights. The Series 6 Preferred is not entitled to any
voting rights, except as required by law. The Series 6 Preferred
has a liquidation preference over the Common Stock equal to $1,000
consideration per outstanding share of Series 6 Preferred (the
''Series 6 Liquidation Value''), plus an amount equal to all unpaid
dividends accrued thereon. The Series 6 Preferred accrues
dividends on a cumulative basis at a rate of 4% per annum of the
Liquidation Value (''Series 6 Dividend Rate''), and is payable
semi-annually when and as declared by the Board of Directors. No
dividends or other distributions may be paid or declared or set
aside for payment on the Common Stock until all accrued and unpaid
dividends on all outstanding shares of Series 6 Preferred have been
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paid or set aside for payment. Dividends may be paid, at the
option of the Company, in the form of cash or Common Stock of the
Company if and when declared by the Board of Directors. If the
Company pays dividends in Common Stock, such is payable in the
number of shares of Common Stock equal to the product of (a) the
quotient of (i) the Series 6 Dividend Rate divided by (ii) the
average of the closing bid quotation of the Common Stock as
reported on the NASDAQ for the five trading days immediately prior
to the date the dividend is declared, multiplied by (b) a
fraction, the numerator of which is the number of days elapsed
during the period for which the dividend is to be paid and the
denominator of which is 365.
The holder of the Series 6 Preferred may convert into Common
Stock up to 1,250 shares of the Series 6 Preferred on and after
October 5, 1997, and the remaining 1,250 shares of the Series 6
Preferred on and after November 5, 1997. The conversion price per
share is $1.8125, except that, in the event the average closing bid
price of the Common Stock as reported in the over-the-counter
market, or the closing sale price if listed on a national
securities exchange, for 20 of any 30 consecutive trading days
after March 1, 1998, shall be less than $2.50, the conversion price
shall thereafter be the lesser of (i) the average closing bid
quotation of the Common Stock as reported on the over-the-counter
market, or the closing sale price if listed on a national
securities exchange for the five trading days immediately preceding
the date of the conversion notice provided by the holder to the
Company multiplied by 80% or (ii) $1.8125. Notwithstanding the
foregoing, the conversion price shall not be less than a minimum of
$.75 per share, which minimum shall be eliminated from and after
September 6, 1998.
The Company will have the option to redeem the shares of
Series 6 Preferred (a) between June 11, 1998, and June 11, 2001, at
a redemption price of $1,300 per share if at any time the average
closing bid price of the Common Stock for ten consecutive trading
days is in excess of $4.00, and (b) after June 11, 2001, at a
redemption price of $1,000 per share. The holder of the Series 6
Preferred Stock will have the option to convert the Series 6
Preferred prior to redemption by the Company. See ''Summary of
Securities Being Offered''; ''Risk Factors--Voting Control; Ability
to Direct Management.''
Pursuant to the RBB Exchange Agreement, the Company agreed to
prepare and file with the Commission by October 27, 1997, a
Registration Statement covering up to 1,379,311 shares of Common
Stock issuable upon conversion of the Series 6 Preferred, plus up
to 250,000 shares of Common Stock issuable in payment of dividends
on the Series 6 Preferred pursuant to the terms of the Series 6
Preferred, and up to 656,250 shares of Common Stock issuable upon
exercise of the Series 6 Warrants. Such Registration was filed on
December 23, 1997. The Company has agreed to use its reasonable
efforts to cause the Registration Statement to become effective at
the earliest possible date after filing. If the Registration
Statement is not declared effective by December 31, 1997, the
Company agreed to pay to RBB Bank a penalty of one-tenth of one
percent (0.1%) of $2,500,000 for each business day thereafter which
ends without the Registration Statement becoming effective. If the
Registration Statement is not effective by January 31, 1998, the
Company agreed to pay RBB Bank an additional one-time penalty of
two percent (2.0%) of $2,500,000 payable in cash or Common Stock.
Once the Registration Statement becomes effective, if it
subsequently becomes ineffective before September 16, 2000, the
Company shall pay to RBB Bank a penalty of $1.00 for each
outstanding share of Series 6 Preferred for each business day that
the Registration Statement is not effective. If such
ineffectiveness extends for thirty days, the Company shall pay to
RBB Bank a one-time penalty of $20.00 for each share of Series 6
Preferred outstanding on the thirtieth day.
If the Company at any time or from time to time while shares
of Series 6 Preferred are issued and outstanding declares or pays,
without consideration, any dividend on the Common Stock payable in
Common Stock, or effects 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
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dividend in Common Stock or in any right to acquire Common Stock),
or if the outstanding shares of Common Stock are combined or
consolidated, by reclassification or otherwise, into a lesser
number of shares of Common Stock, then the conversion price in
effect immediately before such event will, concurrently with the
effectiveness of such event, be proportionately decreased or
increased, as appropriate. If the Company declares or pays,
without consideration, any dividend on the Common Stock payable in
any right to acquire Common Stock for no consideration, then the
Company will be deemed to have made a dividend payable in Common
Stock in an amount of shares equal to the maximum number of shares
issuable upon exercise of such rights to acquire Common Stock.
Under the terms of the Series 6 Warrants, if the Company
declares or pays, without consideration, any dividend on the Common
Stock payable in Common Stock, or effects 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 are
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 such warrant or the
exercise price of such warrant will be adjusted appropriately. As
a result of such adjustment, the proportionate number of shares of
Common Stock issuable immediately prior to the happening of such
event will be the number of shares of Common Stock issuable
subsequent to the happening of such event. If at any time the
shares of Common Stock covered by the Series 6 Warrants are covered
by an effective registration statement and the average closing bid
price of the Common Stock for ten consecutive trading days is in
excess of $3.50 with respect to half of the Series 6 Warrants or in
excess of $4.00 with respect to the other half of the Series 6
Warrants, then the Company will have the option to redeem the
respective Series 6 Warrants for $0.01 per share of Common Stock
covered by the Series 6 Warrants. The holder of the Series 6
Warrants will have the option to exercise the Series 6 Warrants
prior to redemption by the Company. Under the terms of the Series
6 Warrants, the Common Stock issuable upon conversion of the Series
6 Warrants is subject to certain registration rights.
The Series 6 Warrants are entitled to certain rights upon 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. Upon any such event, the holder of the Series 6 Warrants
will have the right, upon exercise of such warrants, to receive the
kind and amount of securities, cash or other property which the
holder of the Series 6 Warrants would have owned or been entitled
to receive immediately after such consolidation, merger, sale or
conveyance had such warrants been exercised in full immediately
prior to the effective date of such consolidation, merger, sale or
conveyance.
RBB Bank has the right to acquire an aggregate of
approximately 6,707,585 shares of Common Stock, consisting of (i)
2,672,024 shares upon conversion of the issued and outstanding
Series 3 Preferred assuming the average closing bid quotation for
the Common Stock for five trading days immediately preceding each
of the conversion date or dates equals or exceeds $2.00 per share
and (ii) 1,379,311 shares upon conversion of the issued and
outstanding Series 6 Preferred assuming the Conversion Price
Adjustment is not in effect, or, if in effect, assuming the average
closing bid quotation for the Common Stock for five trading days
immediately preceding each of the conversion date or dates equals
or exceeds $2.27 per share and (iii) 2,656,250 shares upon the
exercise of the 1996 RBB Warrants and Series 6 Warrants. Upon such
conversion and exercise, RBB Bank will own approximately 41.7% of
the outstanding shares of Common Stock of the Company, which
includes the 931,567 shares of Common Stock directly held by RBB
Bank as of the date of this Prospectus but does not include the
401,221 shares of Common Stock which have previously been or herein
are being registered to be issuable for payment of dividends on the
Series 3 Preferred and Series 6 Preferred.
If RBB Bank acquires 8,000,000 shares of Common Stock upon
conversion of the Series 3 Preferred and 3,333,333 shares upon
conversion of the Series 6 Preferred at their respective minimum
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conversion prices as of the date of this Prospectus, and exercises
all of the 1996 RBB Warrants and Series 6 Warrants, RBB Bank will
own 15,322,371 shares of Common Stock, representing approximately
58.9% of the then outstanding shares of Common Stock of the
Company. In either case, RBB Bank will be the largest single
shareholder of the Company, and the Company may not be able to
avoid an actual change in control of the Company if RBB Bank seeks
such a change in control. Moreover, if such conversion and
exercise results in RBB Bank acquiring more than 50% of the then
outstanding Common Stock of the Company, the Company would not be
able to avoid a change in control. The foregoing estimates assume
that the Series 7 Preferred is not converted, no other shares of
Common Stock are issued by the Company, no other warrants or
options are exercised, the Company does not acquire additional
shares of Common Stock as treasury stock, and RBB Bank does not
dispose of any shares of Common Stock. See ''--Private Placements
and Exchange Agreements.'' See ''Risk Factors--Voting Potential;
Ability to Direct Management.''
As of the date of this Prospectus, RBB Bank holds 931,567
shares of Common Stock, or approximately 8.0% of the outstanding
shares of Common Stock. In July, 1996, RBB acquired from the
Company 5,500 shares of Series 3 Preferred, and prior to the date
of this Prospectus converted 1,500 shares of such Series 3
Preferred into Common Stock pursuant to the terms thereto. As of
the date of this Prospectus, RBB Bank owns 4,000 shares of the
Company's Series 3 Preferred, which are convertible into
approximately 2,672,024 shares of Common Stock assuming an average
bid quotation of the Common Stock five trading days immediately
preceding each conversion date equals or exceeds $2.00 per share,
which numbers could increase under certain limited circumstances.
The conversion price of the Series 3 Preferred is based on the
product of the average of the closing bid quotation of the Common
Stock for the five trading days immediately preceding the
conversion date multiplied by 75%. The initial conversion price
had a minimum of $0.75 per share and a maximum of $1.50 per share.
The minimum conversion price is reduced by $0.25 per share each
time the Company sustains a net loss, on a consolidated basis, in
each of two consecutive quarters; provided, however, that for the
purposes of determining whether the Company has sustained a net
loss in each of two consecutive quarters under the Series 3
Preferred, at no time will a quarter that has already been
considered in such determination be considered in any subsequent
determination. As a result of the net losses sustained by the
Company for the first and second quarters of 1997, the minimum
conversion price relating to the Series 3 Preferred has been
reduced to $0.50 per share. The Common Stock issuable upon
conversion of the Series 3 Preferred is covered by an effective
registration statement. See ''Selling Shareholders.''
In July, 1996, RBB Bank was granted two warrants to purchase
up to an aggregate 2,000,000 shares of Common Stock in connection
with the acquisition of the Series 3 Preferred, with 1,000,000
shares of Common Stock exercisable at $2.00 per share and 1,000,000
shares of Common Stock exercisable at $3.50 per share (the ''1996
RBB Warrants''). The 1996 RBB Warrants are for a term of five
years.
Under the Heller Agreement, the ownership of more than 50% of
a class of voting securities of the Company entitled to elect the
Board of Directors by any one party or a group acting in concert is
a ''change of control'' and is an ''event of default.'' Upon such
an ''event of default,'' Heller has the right to exercise certain
remedies described in the Heller Agreement, including the right to
declare a default and immediately accelerate the debt incurred
pursuant to the Heller Agreement. RBB Bank's ownership of more
than 50% of the Common Stock as a result of RBB Bank's conversion
or exercise of the Series 3 Preferred, Series 6 Preferred, 1996 RBB
Warrants and Series 6 Warrants, or any combination thereof, would
be an ''event of default'' under the Heller Agreement. See ''Risk
Factors Defaults on Senior Debt.'' If the debt which the Company
has incurred pursuant to the Heller Agreement is accelerated, the
Company may not be able to repay such debt on an accelerated basis
or replace such debt with alternative financing.
Additionally, Heller has not specifically consented to the
ownership by RBB Bank of more than 50% of the Company's Common
Stock. See ''Risk Factors--Potential Adverse Effect to Company and
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Possible Adverse Impact on Earnings Per Share Upon Exercise of
Outstanding Warrants and Options'' and ''--Barriers to Takeover.''
Infinity Private Placement
On July 14, 1997, the Company issued to Infinity 350 shares of
newly-created Series 5 Class E Convertible Preferred Stock, par
value $.001 per share (the ''Series 5 Preferred'') at a price of
$1,000 per share, for an aggregate sales price of $350,000. The
sale to Infinity was made in a private placement (the ''Infinity
Private Placement'') under Rule 506 of Regulation D under the
Securities Act, pursuant to the terms of a Subscription and
Purchase Agreement, dated July 7, 1997, between the Company and
Infinity (''Infinity Subscription''). The Company received
proceeds of $350,000 under the Infinity Private Placement,
excluding the payment of legal fees and miscellaneous costs. The
Company has used the net proceeds from the Infinity Private
Placement to reduce the outstanding balance under its revolving
credit facility under the Heller Agreement, but has continued to
borrow under such revolving credit facility after such reduction.
Heller has not consented to issuance of the Series 5 Preferred or
shares of Common Stock to be issued upon conversion thereof or in
payment of dividends thereon. See ''Risk Factors Defaults on
Senior Debt.''
Infinity Exchange Agreement
Effective September 16, 1997, the Company entered into an
Exchange Agreement with Infinity (''Infinity Exchange Agreement'')
pursuant to which the 350 shares of Series 5 Preferred were
tendered to the Company in exchange for (i) 350 shares of Series 7
Preferred and (ii) two warrants to purchase up to an aggregate of
35,000 shares of Common Stock at an exercise price of $1.8125 per
share (the ''Infinity Warrants''). The Infinity Warrants may be
exercised at any time after December 31, 1997, and until July 7,
2000. Heller has not consented to issuance of the Infinity
Warrants or shares of Common Stock to be issued upon exercise
thereof, or to the issuance of Series 7 Preferred or shares of
Common Stock to be issued upon conversion thereof or in payment of
dividends thereon. See ''Risk Factors Defaults on Senior Debt.''
The rights of the Series 7 Preferred are substantially the
same as the rights under the Series 5 Preferred, except for certain
conversion rights. The Series 7 Preferred is not entitled to any
voting rights, except as required by law. The Series 7 Preferred
has a liquidation preference over the Common Stock equal to $1,000
consideration per outstanding share of Series 7 Preferred (the
''Series 7 Liquidation Value''), plus an amount equal to all unpaid
dividends accrued thereon. The Series 7 Preferred accrues
dividends on a cumulative basis at a rate of 4% per annum of the
Liquidation Value (''Series 7 Dividend Rate''), and is payable
semi-annually when and as declared by the Board of Directors. No
dividends or other distributions may be paid or declared or set
aside for payment on the Common Stock until all accrued and unpaid
dividends on all outstanding shares of Series 7 Preferred have been
paid or set aside for payment. Dividends may be paid, at the
option of the Company, in the form of cash or Common Stock of the
Company. If the Company pays dividends in Common Stock, such is
payable in the number of shares of Common Stock equal to the
product of (a) the quotient of (i) the Series 7 Dividend Rate
divided by (ii) the average of the closing bid quotation of the
Common Stock as reported on the NASDAQ for the five trading days
immediate prior to the date the dividend is declared, multiplied
by (b) a fraction, the numerator of which is the number of days
elapsed during the period for which the dividend is to be paid and
the denominator of which is 365.
The holder of the Series 7 Preferred may convert into Common
Stock up to 175 shares of the Series 7 Preferred on or after
November 3, 1997, and the remaining 175 shares of the Series 7
Preferred on or after December 3, 1997. The conversion price of
the Series 7 Preferred is $1.8125 per share of Common Stock, except
that, in the event the average closing bid price of the Common
Stock for 20 of any 30 consecutive trading days (a ''30 Day
Period'') after March 1, 1998, shall be less than $2.50 as reported
on the over-the-counter market, or the closing sale price if listed
on a national securities exchange and if the holders of the Series
7 Preferred have engaged in no sales of Common Stock of the Company
during, and for 30 trading days prior to, the applicable 30 Day
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Period, the conversion price shall thereafter be the lesser of (i)
the average closing bid quotation of the Common Stock as reported
on the over-the-counter market, or the closing sale price if listed
on a national securities exchange, for the five trading days
immediately preceding the date of the conversion notice, provided
by the holder to the Company multiplied by 80% or (ii) $1.8125.
Notwithstanding the foregoing, the conversion price shall not be
less than a minimum of $.75 per share, which minimum shall be
eliminated from and after September 6, 1998. Subject to the
closing bid price of the Company's Common Stock at the time of
conversion and the other conditions which could increase the number
of shares to be issued upon conversion, the Series 7 Preferred, if
all were converted, could be converted into between approximately
200,000 and 467,000 shares of Common Stock, or more after the
minimum conversion price is eliminated, or under certain other
limited circumstances.
The Company will have the option to redeem the shares of
Series 7 Preferred (a) between July 7, 1998, and July 7, 2001, at
a redemption price of $1,300 per share if at any time the average
closing bid price of the Common Stock for ten consecutive trading
days is in excess of $4.00, and (b) after July 7, 2001, at a
redemption price of $1,000 per share. The holder of the Series 7
Preferred will have the option to convert the Series 7 Preferred
prior to redemption by the Company. The Common Stock issuable on
the conversion of the Series 7 Preferred is subject to certain
registration rights pursuant to the Infinity Exchange Agreement.
See ''Summary of Securities Being Offered.''
If the Company at any time or from time to time while shares
of Series 7 Preferred are issued and outstanding declares or pays,
without consideration, any dividend on the Common Stock payable in
Common Stock, or effects 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 are combined or
consolidated, by reclassification or otherwise, into a lesser
number of shares of Common Stock, then the conversion price in
effect immediately before such event will, concurrently with the
effectiveness of such event, be proportionately decreased or
increased, as appropriate. If the Company declares or pays,
without consideration, any dividend on the Common Stock payable in
any right to acquire Common Stock for no consideration, then the
Company will be deemed to have made a dividend payable in Common
Stock in an amount of shares equal to the maximum number of shares
issuable upon exercise of such rights to acquire Common Stock.
Under the terms of the Infinity Warrants, if the Company
declares or pays, without consideration, any dividend on the Common
Stock payable in Common Stock, or effects 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 are
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 such warrant or the
exercise price of such warrant will be adjusted appropriately. As
a result of such adjustment, the proportionate number of shares of
Common Stock issuable immediately prior to the happening of such
event will be the number of shares of Common Stock issuable
subsequent to the happening of such event. If at any time the
shares of Common Stock covered by the Infinity Warrants are covered
by an effective registration statement and the average closing bid
price of the Common Stock for ten consecutive trading days is in
excess of $7.00, then the Company will have the option to redeem
the Infinity Warrants for $0.01 per share of Common Stock covered
by the Infinity Warrants. The holder of the Infinity Warrants will
have the option to exercise the Infinity Warrants prior to
redemption by the Company. Under the terms of the Infinity
Warrants, the Common Stock issuable upon exercise of the Infinity
Warrants is subject to certain registration rights.
The Infinity Warrants are entitled to certain rights upon 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
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Company to another entity of all or substantially all of the
property of the Company as an entirety or substantially as an
entirety. Upon any such event, the holder of the Infinity Warrants
will have the right, upon exercise of such warrant, to receive the
kind and amount of securities, cash or other property which the
holder of the Infinity Warrants would have owned or been entitled
to receive immediately after such consolidation, merger, sale or
conveyance had such warrant been exercised in full immediately
prior to the effective date of such consolidation, merger, sale or
conveyance.
RECENT DEVELOPMENTS
The following are all material changes in the Company's
affairs which have occurred since the end of December 31, 1996, and
which have not been described in a report on Form 10-Q or Form 8-K
filed under the Exchange Act or otherwise discussed in other
sections of this Prospectus:
Congress Letter of Intent
In November, 1997, the Company signed a letter of intent with
Congress Financial Corporation regarding a proposed $7,000,000
credit facility (''Congress Loan'') which, as proposed, would
consist of a revolving line of credit of approximately $4,500,000
and a term loan of approximately $2,500,000. The Congress Loan
would be used to replace the Company's current term loan and
revolving loan facility with Heller, as well as the Company's
current equipment financing arrangements with Ally. Completion of
the Congress Loan, however, is subject to credit approval by
Congress which will entail, among other things, completion of
Congress' due diligence to its satisfaction and finalization of
loan documents satisfactory to the parties. There are no
assurances that the Congress Loan will be completed. No assurance
can be made that the Congress Loan will close in the near future or
at all.
Steve Gorlin Stock Purchase Agreement
On July 30, 1997, the Company entered into a Stock Purchase
Agreement (''Gorlin Agreement'') with Mr. Steve Gorlin, a Director
of the Company, whereby the Company agreed to sell and, and Mr.
Gorlin agreed to purchase, 200,000 shares of the Company's Common
Stock. The purchase price was $2.125 per share representing the
closing bid price of the Common Stock as quoted on the NASDAQ on
July 30, 1997. Pursuant to the terms of the Gorlin Agreement, Mr.
Gorlin agreed to pay the Company the aggregate purchase price of
$425,000 for the 200,000 shares of Common Stock. In order to
induce Mr. Gorlin to enter into the amendment to the Gorlin
Agreement, and to purchase the Common Stock on the terms and
subject to the conditions thereof, PESI agreed to issue to Mr.
Gorlin upon payment for the 200,000 shares, a three (3) year
warrant to Mr. Gorlin for the purchase of 100,000 shares of Common
Stock at $2.40 per share. Under the Gorlin Agreement, Mr. Gorlin
agreed to tender $425,000 during August, 1997, however, pursuant to
an amendment to the Gorlin Agreement, which was entered into on
October 7, 1997, the payment schedule was modified such that Mr.
Gorlin agreed to tender the $425,000 on or before November 30,
1997. As of December 23, 1997, and as of the date of this
Prospectus, Mr. Gorlin has not tendered the $425,000 to the Company
and has not indicated when, or if, he will do so.
USE OF PROCEEDS
The Company will not receive any part of the proceeds of the
sale of Shares. The Company will receive approximately $3,954,531
if the Selling Shareholders exercise all of each warrant covering
Shares included in this Prospectus. See ''Plan Of Distribution.''
Any proceeds received by the Company from the exercise of such
warrants, less the Company's share of the estimated expenses of the
cost of this offering, will be used by the Company for general
corporate purposes.
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The Company has agreed to pay all costs and fees relating to
the registration of the Common Stock covered by this Prospectus,
except for any discounts, concessions or commissions payable to
underwriters, dealers or agents incident to the offering of the
Shares covered by this Prospectus or any legal fees incurred by any
Selling Shareholders relating to this offering.
SUMMARY OF SECURITIES BEING OFFERED
The 3,677,074 Shares covered by this Prospectus are comprised
of the following: (a) 1,379,311 shares of Common Stock issuable by
the Company upon the conversion of 2,500 shares of Series 6
Preferred issued by the Company to RBB Bank in connection with the
RBB Exchange Agreement; (b) 250,000 shares of Common Stock which
may be issued by the Company to RBB Bank in payment of dividends
accrued on the Series 6 Preferred; (c) 656,250 shares of Common
Stock issuable upon the exercise of the Series 6 Warrants issued by
the Company to RBB Bank in connection with the RBB Exchange
Agreement, exercisable for three years at an exercise price of
$1.8125 per share as to 375,000 shares of Common Stock and $2.125
per share as to 281,250 shares of Common Stock; (d) 300,000 shares
of Common Stock issuable by the Company upon the exercise of the
Charles Warrants issued by the Company to JW Charles in connection
with the RBB Private Placement, 100,000 of which are exercisable
for three years at $1.50 per share and 200,000 of which are
exercisable for five years at $2.00 per share; (e) 200,000 shares
of Common Stock issuable by the Company upon the conversion of 350
shares of Series 7 Preferred issued by the Company in connection
with the Infinity Exchange Agreement; (f) 36,000 shares of Common
Stock which may be issued by the Company to Infinity in payment of
dividends accrued on the Series 7 Preferred; (g) 35,000 shares of
Common Stock issuable upon the exercise of the Infinity Warrants
issued by the Company to Infinity in connection with the Infinity
Exchange Agreement, exercisable for three years at an exercise
price of $1.8125 per share; (h) 125,000 shares of Common Stock
issuable by the Company upon the exercise of the Sun Bank Warrant
issued by the Company to Sun Bank in connection with the extension
of certain financial credits by Sun Bank to the Company,
exercisable until June 16, 1999, at an exercise price of $3.625 per
share; (i) 7,000 shares of Common Stock issuable by the Company
upon exercise of the Blair Remainder Warrant, exercisable until
December 31, 1999, at an exercise price of $2.375 per share, issued
to Blair to reflect the unassigned portion of the Blair Warrant for
75,000 shares of Common Stock which was previously issued by the
Company to Blair in connection with the extension of a promissory
note and which was partially assigned by Blair to the following
officers and directors of Blair: (w) 28,000 shares of Common Stock
issuable by the Company upon exercise of the Davis Warrant issued
to Davis as a result of the assignment by Blair of a portion of the
Blair Warrant, exercisable until December 31, 1999, at an exercise
price of $2.375 per share; (x) 28,000 shares of Common Stock
issuable by the Company upon exercise of the Stahler Warrant issued
to Stahler as a result of the assignment by Blair of a portion of
the Blair Warrant, exercisable until December 31, 1999, at an
exercise price of $2.375 per share; (y) 7,000 shares of Common
Stock issuable by the Company upon exercise of the Renov Warrant
issued to Renov as a result of the assignment by Blair of a portion
of the Blair Warrant, exercisable until December 31, 1999, at an
exercise price of $2.375 per share; (z) 5,000 shares of Common
Stock issuable by the Company upon exercise of the Bell Warrant
issued to Bell as a result of the assignment by Blair of a portion
of the Blair Warrant, exercisable until December 31, 1999, at an
exercise price of $2.375 per share; (j) 20,513 shares of Common
Stock issuable by the Company upon exercise of the Ally Warrant
issued by the Company to Ally in connection with a loan to the
Company, which warrant is exercisable until September 11, 2000, at
an exercise price of $2.4375 per share; (k) 100,000 shares of
Common Stock issuable by the Company upon the exercise of the
Dionysus Warrant issued by the Company to Dionysus in connection
with the Private Placement and exercisable for three years at an
exercise price of $1.70 per share; and (l) 500,000 shares of Common
Stock issuable upon the exercise of the following Service Warrants,
each dated July 23, 1997: (x) 175,000 shares of Common Stock
issuable at an exercise price of $2.00 per share and 175,000 shares
of Common Stock issuable at an exercise price of $3.00 per share
under the Ehlert Warrants and (y) 75,000 shares of Common Stock
issuable at an exercise price of $2.00 per share and 75,000 shares
of Common Stock issuable at an exercise price of $2.50 per share
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under the Fetter Warrants. See ''Private Placements and Exchange
Agreements'' for further description of the Series 6 Preferred, the
Series 6 Warrants, the Series 7 Preferred, the Infinity Warrants,
the Charles Warrants, and the Dionysus Warrants.
The Sun Bank Warrant was issued to Sun Bank under the terms of
a Loan Agreement, dated June 17, 1994, between the Company and Sun
Bank (the ''Loan Agreement''). The Loan Agreement provided for the
extension of approximately $3.4 million of financial credits by Sun
Bank to the Company. Under the terms of the Sun Bank Warrant, if
the Company declares or pays, without consideration, any dividend
on the Common Stock payable in Common Stock, or effects a
subdivision of the outstanding shares of Common Stock into a
greater number of shares of Common Stock (by subdivision or
reclassification) or if the outstanding shares of Common Stock are
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 the Sun Bank Warrant
or the exercise price of such warrant will be adjusted
appropriately. The initial exercise price of the Sun Bank Warrant
was $3.625 per share.
The Sun Bank Warrant is entitled to certain rights upon 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. Upon such event, the holder of the Sun Bank Warrant will
have the right, upon exercise of such warrants, to receive the kind
and amount of securities, cash or other property which the holder
of the Sun Bank Warrant would have owned or been entitled to
receive immediately after such consolidation, merger, sale or
conveyance had such warrants been exercised in full immediately
prior to the effective date of such consolidation, merger, sale or
conveyance. Under the terms of the Sun Bank Warrant, the shares of
Common Stock issuable upon exercise of the Sun Bank Warrant are
entitled to certain registration rights.
Under the terms of the Service Warrants, the Dionysus Warrant,
the Blair Remainder Warrant, the Davis Warrant, the Stahler
Warrant, the Renov Warrant, the Bell Warrant, and the Ally Warrant,
(collectively, the ''Affected Warrants'') if at any time or from
time to time after the date of each Affected Warrant, the Company
(a) pays a dividend on its Common Stock in shares of Common Stock,
(b) subdivides its outstanding shares of Common Stock into a
greater number of shares, (c) combines its outstanding shares of
Common Stock into a smaller number of shares, or (d) issues by
reclassification of its Common Stock any shares of any other class
of capital stock of the Company, then the number of shares issuable
upon exercise of the Affected Warrant and the exercise price of the
Affected Warrant in effect immediately prior to such event will be
adjusted so that the holder will be entitled upon exercise of such
Affected Warrant to purchase, without additional consideration, the
number of shares of Common Stock or other capital stock of the
Company which the holder would have owned or been entitled to
purchase immediately following the happening of any of the events
described in (a), (b) or (c) above had such Affected Warrant been
exercised and the holder become the holder of record of the shares
purchased pursuant to the Affected Warrant 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. In such event the
exercise price will be equal to the aggregate consideration which
the holder would have had to pay for such shares issued pursuant to
the Affected Warrant immediately prior to such event divided by the
number of shares issued pursuant to the Affected Warrant the holder
is entitled to receive immediately after such event. If as a
result of an adjustment made as described in this paragraph the
holder of such Affected Warrant thereafter surrendered for exercise
becomes 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 Affected Warrants promptly
after such adjustment) will determine the allocation of the
adjusted exercise price of the Affected Warrant between or among
shares of such classes of capital stock or shares of Common Stock
and such other class of capital stock.
-30-
<PAGE>
The terms of the Affected Warrants provide that upon 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 the Affected Warrant will have the right thereafter, upon
exercise of such 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 such Affected 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 will be made in the application
thereafter with respect to the rights and interests of the holder
of such Affected Warrant to the end that the provisions of this
paragraph and the preceding paragraph thereafter will be
correspondingly applicable, as nearly as may reasonably be, to such
securities and other property.
If the Company distributes 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 of a Affected Warrant, upon its exercise, will be
entitled to receive the securities and property which such holder
would hold on the date of such exercise if, on the date of such
Affected 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 such 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.
-31-
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SELLING SHAREHOLDERS
The following table sets forth, (a) the name of each Selling
Shareholder, (b) the amount of shares beneficially owned by each
Selling Shareholder as of the date of this Prospectus, (c) the
number of shares of Common Stock under this Prospectus, (d) the
number of shares beneficially owned after the offering, assuming
that all shares of Common Stock being offered hereby are sold and
that such are outstanding, and (e) the percentage of Common Stock
beneficially owned after completion of the offering, assuming that
all shares of Common Stock being offered hereby are sold and that
such are outstanding.
Percentage
of
Common
Common Common Stock
Stock Stock Beneficially
Beneficially Common Beneficially Owned After
Owned Stock Owned After Completion
Prior to Being Completion of of
Selling Shareholder Offering(1) Offered Offering(2) Offering(3)
___________________ ___________ _________ _____________ ___________
<S> <C> <C> <C> <C>
RBB Bank
Aktiengesellschaft 8,040,373(3) 2,285,561 5,754,812 35.0%
JW Charles
Financial Services,
Inc.(4) 412,500(4) 300,000 112,500 (16)
Sun Bank, National
Association(5) 125,000(5) 125,000 0 -
The Infinity Fund,
L.P.(6) 308,800(6) 271,000 37,800 (16)
Karl H. Ehlert(7) 350,000(7) 350,000 0 -
R. Keith Fetter(8) 240,000(8) 150,000 90,000 (16)
Dionysus Limited(9) 315,000(9) 100,000 215,000 1.8%
Ally Capital
Management(10) 53,846(10) 20,513 33,000 (16)
D.H. Blair Investment
Banking Corp.(11) 434,476(11) 7,000 427,476 3.6%
J. Morton Davis(12) 626,251(12) 28,000 598,251 5.3%
Esther Stahler(13) 67,100(13) 28,000 39,100 (16)
Ruki Renov(14) 46,100(14) 7,000 39,100 (16)
Martin A. Bell(15) 13,000(15) 5,000 8,000 (16)
__________________________
<FN>
(1) Includes shares of Common Stock which may be acquired upon (a)
the exercise of outstanding warrants, whether or not such are
-32-
currently exercisable and/or (b) conversion of outstanding
shares of preferred stock.
(2) Assumes (a) all shares of Common Stock covered by this
Prospectus are sold, (b) the Selling Stockholder does not
acquire beneficial ownership of additional shares of Common
Stock after the date of this Prospectus, and (c) the Company
does not issue any additional shares of Common Stock after the
date of this Prospectus, except the shares of Common Stock
which a person has the right to acquire upon the exercise and
conversion of preferred stock outstanding as of the date of
this Prospectus, but are not determined to be outstanding for
the purpose of computing the percentage ownership of any other
person. The amounts indicated are based on outstanding Common
Stock of 11,612,787 shares as of December 12, 1997.
(3) Includes (a) 2,656,250 shares that RBB Bank is entitled to
receive upon exercise of all of the 1996 RBB Warrants and
Series 6 Warrants; (b) 2,672,024 shares that RBB Bank is
entitled to receive upon conversion of the 4,000 shares of
Series 3 Preferred held by RBB Bank (assuming the average
closing bid quotation for the Common Stock for the five
trading days immediately preceding each conversion date equals
or exceeds $2.00 per share); (c) 1,379,311 shares that RBB
Bank is entitled to receive upon conversion of the 2,500
shares of Series 6 Preferred (assuming the Conversion Price
Adjustment is not in effect, or if in effect, assuming the
average closing bid quotation for the Common Stock for the
five trading days immediately preceding each conversion date
equals or exceeds $2.27 per share); (d) 151,221 shares of
Common Stock that RBB Bank may receive in payment of the
accrued dividends on the Series 3 Preferred; (e) 250,000
shares that RBB Bank may receive in payment of the accrued
dividends on the Series 6 Preferred, and (f) 931,567 shares
held directly by RBB Bank. The Company's Registration
Statement on Form S-3, No. 333-14513, effective October 21,
1996 (the ''1996 Registration Statement'') currently covers
the reoffer and resale of up to 6,030,000 of the 8,040,373
shares noted as beneficially owned by RBB Bank. The shares of
Common Stock covered by the 1996 Registration Statement
consist of 3,700,000 shares issuable upon conversion of the
Series 3 Preferred held by RBB Bank, 2,000,000 shares issuable
upon exercise of the 1996 RBB Warrants, and 330,000 shares
issuable in payment of dividends accrued on the Series 3
Preferred.
(4) Includes (a) 112,000 shares that JW Charles's wholly-owned
subsidiary, JW Charles Securities, Inc. (''Charles
Securities'') is entitled to receive upon exercise of a
warrant dated September 16, 1996 (the ''JWCS Warrant''); and
(b) 300,000 shares that JW Charles is entitled to receive upon
exercise of the Charles Warrants. The 1996 Registration
Statement (defined in footnote (3) to this table) covers the
reoffer and resale of the 112,000 shares issuable upon
exercise of the JWCS Warrant.
(5) Includes 125,000 shares that Sun Bank is entitled to receive
upon exercise of the Sun Bank Warrant. Sun Bank currently
provides the Company with certain banking services and
financial credits.
(6) Includes (a) 200,000 shares that Infinity is entitled to
receive upon conversion of all of the Series 7 Preferred held
by Infinity (assuming a conversion price of $1.8125 per
share), (b) 36,000 shares of Common Stock that Infinity may
receive in payment of the accrued dividends on the Series 7
Preferred, and (c) 35,000 shares that are issuable upon
exercise of the Infinity Warrants.
(7) Includes 350,000 shares that Mr. Ehlert is entitled to receive
upon exercise of the Ehlert Warrants. Mr. Ehlert currently
provides investor relations, marketing, and consulting
services to the Company.
(8) Includes 150,000 shares that Mr. Fetter is entitled to receive
upon exercise of the Fetter Warrants. Mr. Fetter currently
provides investor relations, marketing, and consulting
services to the Company under a certain two year Consulting
Agreement, dated May 1, 1996, between Mr. Fetter and the
Company.
(9) Includes 100,000 shares that Dionysus is entitled to receive
upon exercise of the Dionysus Warrant.
-33-
(10) Includes 20,513 shares that Ally is entitled to receive upon
exercise of the Ally Warrant.
(11) Includes 7,000 shares that Blair is entitled to receive upon
exercise of the Blair Remainder Warrant issued to Blair to
reflect the unassigned portion of the Blair Warrant for 75,000
shares of Common Stock which was previously issued by the
Company to Blair in connection with the extension of a
promissory note. Effective March 23, 1995, the Blair Warrant
was partially assigned by Blair to the following officers and
directors of Blair: Davis, Stahler, Renov and Bell to purchase
28,000, 28,000, 7,000 and 5,000 shares thereunder,
respectively. See ''Summary of Securities Being Offered.''
Includes (i) 217,701 shares held by Blair, (ii) 200,000 shares
issuable upon exercise of one warrant, and (iii) 9,775 shares
issuable upon exercise of one warrant. The 1996 Registration
Statement currently covers the reoffer and resale of up to
200,000 shares issuable upon exercise of the warrant for
200,000 shares issued to Blair. All of the Common Stock held
by Blair may be considered to be beneficially owned by Davis,
the sole shareholder of Blair. See footnote 12 to this Table
(12) Mr. Davis is an investment banker and sole shareholder of
Blair, a broker-dealer registered under the Exchange Act.
Includes (i) 28,000 shares that Davis is entitled to receive
upon exercise of the Davis Warrant; (ii) 154,000 shares owned
by Davis' spouse; (iii) 9,775 shares that Davis is entitled to
receive upon exercise of a warrant; and (iv) 434,476 shares
held by Blair and described in footnote 11 to this Table. Mr.
Davis disclaims beneficial ownership over the shares held by
his spouse. The number of shares indicated does not include
570,494 shares which are beneficially owned by Steve Gorlin,
a director of the Company, and which are pledged to Davis and
Blair pursuant to a Pledge Agreement dated June, 1992.
Davis and Blair have filed a joint Schedule 13G, as amended
from time to time, regarding the Common Stock, which states
that Davis has sole voting and dispositive control over the
shares of Common Stock held by Blair. Davis is, therefore,
considered to be the beneficial owner of the Common Stock held
by Blair.
(13) Includes 28,000 shares that Stohler is entitled to receive
upon exercise of the Stohler Warrant.
(14) Includes 7,000 shares that Renov is entitled to receive upon
exercise of the Renov Warrant.
(15) Includes 5,000 shares that Bell is entitled to receive upon
exercise of the Bell Warrant.
(16) Less than 1.0%.
</FN>
</TABLE>
PLAN OF DISTRIBUTION
The Shares may be offered and sold from time to time by the
Selling Shareholders, or by pledges, donees, transferees or other
successors in interest. The Selling Shareholders will act
independently of the Company in making decisions with respect to
the timing, market, or otherwise at prices related to the then
current market price or in negotiated transactions. The Shares may
be sold by the Selling Shareholders in one or more transactions on
the NASDAQ and the BSE or otherwise at market prices then
prevailing or in privately negotiated transactions. The Shares may
be sold by one or more of the following: (i) ordinary brokerage
transactions and transactions in which the broker solicits
purchasers; (ii) purchases and resale by a broker-dealer for its
account pursuant to this Prospectus, and (iii) a block trade in
which the broker-dealer so engaged will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction. The Company has not been
advised by the Selling Shareholders that they have, as of the date
hereof, made any arrangements relating to the distribution of the
Shares covered by this Prospectus, except that certain of the
Selling Shareholders are broker-dealers. See ''Selling
Shareholders.'' In effecting sales, broker-dealers engaged by the
Selling Shareholders may arrange for other broker-dealers to
-34-
<PAGE>
participate, and, in such case, broker-dealers will receive
commissions or discounts from the Selling Shareholders in amounts
to be negotiated immediately prior to sale.
In offering the Shares, the Selling Shareholders and any
broker-dealers and any other participating broker-dealers who
execute sales for the Selling Shareholders may be deemed to be
''underwriters'' within the meaning of the Securities Act in
connection with such sales. Accordingly, any profits realized by
the Selling Shareholders and the compensation of such broker-dealer
may be deemed to be underwriting discounts and commissions. Any
Shares covered by this Prospectus which qualify for sale pursuant
to Rule 144 may be sold under Rule 144 rather than pursuant to this
Prospectus.
LEGAL OPINION
Certain legal matters in connection with the Common Stock
offered hereby will be passed upon for the Company by Conner &
Winters, A Professional Corporation, Oklahoma City, Oklahoma.
EXPERTS
The financial statements and schedules incorporated by
reference in this Prospectus and elsewhere in the Registration
Statement, to the extent and for the periods indicated in their
reports, have been audited by BDO Seidman LLP, independent public
accountants, and are included herein in reliance upon the authority
of said firms as experts in giving such reports.
-35-
<PAGE>
<PAGE>
No dealer, salesman or other person
has been authorized to give any
information not contained in this
Prospectus and, if given or
made, such information or repre-
sentations must not be relied upon
as having been authorized by the
Company or the Standby Purchasers.
This Prospectus does not 3,677,074 Shares
constitute an offer to sell or a
solicitation of an offer to buy Perma-Fix Environmental
any of the securities offered Services, Inc.
hereby in any jurisdiction to any
person to whom it is unlawful
to make such offer in such
jurisdiction. Neither the delivery
of this Prospectus nor any sale
hereunder shall under any
circumstances create any implication
that there has been no change in the
affairs of the Company since the
date hereof.
_______________________
Table of Contents Common Stock
Page
____
Available Information. . . 5
Incorporation by
Reference. . . . . . . . 5
Risk Factors . . . . . . . 6 _____________
The Company. . . . . . . . 13 Prospectus
_____________
Recent Developments. . . . 28
Use of Proceeds. . . . . . 28
Summary of Securities
Being Offered. . . . . . 29
Selling Shareholders . . . 32
Plan of Distribution . . . 34
Legal Opinion. . . . . . . 35 December ___, 1997
Experts. . . . . . . . . . 35
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<CAPTION>
Nature of Expense
___________________
<S> <C>
SEC Registration Fee . . . . . . . . . . . $ 2,748.75
Legal Fees (Including Blue Sky). . . . . . $ 25,000.00
Accounting Fees and Expenses . . . . . . . $ 2,500.00
Printing . . . . . . . . . . . . . . . . . $ 2,500.00
Miscellaneous. . . . . . . . . . . . . . . $ 2,500.00
______________
Total $ 35,248.75
==============
</TABLE>
The foregoing expenses, except for the registration fee, are
estimated pursuant to Item 511 of Regulation S-K.
Item 15. Indemnification of Officers and Directors
Section 145 of the Delaware Corporation Law provides that a
corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a
party by reason of such position, if such person shall have acted
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to
believe his conduct was unlawful; provided that, no indemnification
shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and
only to the extent that the adjudicating court determines that,
despite the adjudication of liability but in view of all the
circumstance of the case, such person is fairly and reasonably
entitled to indemnification.
Article EIGHTH of the Company's Restated Certificate of
Incorporation provides as follows with respect to the
indemnification of officers and directors of the Company:
All persons who the Corporation is empowered to indemnify
pursuant to the provisions of Section 145 of the General
Corporation Law of the State of Delaware (or any similar
provision or provisions of applicable law at the time in
effect), shall be indemnified by the Corporation to the
full extent permitted thereby. The foregoing right of
indemnification shall not be deemed to be exclusive of
any other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
No repeal or amendment of this Article EIGHTH shall
adversely affect any rights of any person pursuant to
this Article EIGHTH which existed at the time of such
repeal or amendment with respect to acts or omissions
occurring prior to such repeal or amendment.
The Company's Restated Certificate of Incorporation provides
that no director of the Company shall be personally liable to the
Company or its stockholders for any monetary damages for breaches
of fiduciary duty as a director, provided that this provision shall
not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the Company or its
stockholders; (ii) for acts or omissions not in good faith or which
<PAGE>
involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the General Corporation Law of the State of
Delaware; or (iv) for any transaction from which the director
derived an improper personal benefit.
Item 16. Exhibits
Exhibit
No. Description
______ ___________
4.1 Subscription and Purchase Agreement, dated June 9, 1997,
between the Company and RBB Bank Aktiengesellschaft as
incorporated by reference from Exhibit 4.1 to the Company's
Form 8-K, dated June 11, 1997.
4.2 Subscription and Purchase Agreement, dated July 7, 1997,
between the Company and the Infinity Fund, L.P. as
incorporated by reference from Exhibit 4.1 to the Company's
Form 8-K, dated July 7, 1997.
4.3 Exchange Agreement, dated November 6, 1997, to be
considered effective as of September 16, 1997, between the
Company and RBB Bank, as incorporated by reference from
Exhibit 4.11 from the Company's Report on Form 10-Q for the
period ended September 30, 1997.
4.4 Certificate of Designations of Series 6 Class F Convertible
Preferred Stock, dated November 6, 1997, incorporated by
reference from Exhibit 4.7 to the Company's Report on Form
10-Q for the period ended September 30, 1997.
4.5 Specimen copy of Series 6 Class F Convertible Preferred
Stock Certificate, as incorporated by reference from
Exhibit 4.8 to the Company's Report on Form 10-Q for the
quarter ended September 30, 1997.
4.6 Exchange Agreement dated as of October 31, 1997, to be
considered effective as of September 16, 1997, between the
Company and the Infinity Fund, L.P., as incorporated by
reference from Exhibit 4.12 to the Company's Report on Form
10-Q for the period ended September 30, 1997.
4.7 Certificate of Designations of Series 7 Class G Convertible
Preferred Stock, dated October 30, 1997, incorporated by
reference from Exhibit 4.9 to the Company's Report on Form
10-Q for the period ended September 30, 1997.
4.8 Specimen copy of Series 7 Convertible Preferred Stock
Certificate, as incorporated by reference from Exhibit 4.10
to the Company's Report on Form 10-Q for the quarter ended
September 30, 1997.
4.9 Common Stock Purchase Warrant ($1.8125) No. RBB 9-97-1,
dated September 16, 1997, between the Company and RBB Bank
Aktiengellschaft.
4.10 Common Stock Purchase Warrant ($1.8125) No. RBB 9-97-2,
dated September 16, 1997, between the Company and RBB Bank
Aktiengellschaft.
4.11 Common Stock Purchase Warrant ($2.125) No. RBB 9-97-3,
dated September 16, 1997, between the Company and RBB Bank
Aktiengellschaft.
4.12 Common Stock Purchase Warrant No. INF 9-97-1, dated
September 16, 1997, between the Company and The Infinity
Fund, L.P.
4.13 Common Stock Purchase Warrant No. INF 9-97-2, dated
September 16, 1997, between the Company and The Infinity
Fund, L.P.
II-2
<PAGE>
4.14 Common Stock Purchase Warrant ($1.50), dated June 9, 1997,
between the Company and JW Charles Financial Services,
Inc., as incorporated by reference from Exhibit 4.6 to the
Company's Form 8-K, dated June 11, 1997.
4.15 Common Stock Purchase Warrant ($2.00), dated June 9, 1997,
between the Company and JW Charles Financial Services, Inc.
as incorporated by reference from Exhibit 4.7 to the
Company's Form 8-K, dated June 11, 1997.
4.16 Warrant Agreement, dated June 17, 1994, between the Company
and Sun Bank, National Association as incorporated by
reference from Exhibit 4.2 to the Company's Form 8-K, dated
June 17, 1994.
4.17 Common Stock Purchase Warrant ($2.00), dated July 25, 1997,
between the Company and Karl Ehlert.
4.18 Common Stock Purchase Warrant ($3.00), dated July 25, 1997,
between the Company and Karl Ehlert.
4.19 Common Stock Purchase Warrant ($2.00), dated July 25, 1997,
between the Company and Keith Fetter.
4.20 Common Stock Purchase Warrant ($2.50), dated July 25, 1997,
between the Company and Keith Fetter.
4.21 Common Stock Purchase Warrant, dated effective as of
September 16, 1997, between the Company and Dionysus
Limited.
4.22 Common Stock Purchase Warrant dated January, 1995, between
the Company and D. H. Blair Investment Banking Corp.
4.23 Common Stock Purchase Warrant dated effective as of March
23, 1995, between the Company and D. H. Blair Investment
Banking Corp.
4.24 Common Stock Purchase Warrant dated effective as of
March 23, 1995, between the Company and J. Morton Davis.
4.25 Common Stock Purchase Warrant dated effective as of
March 23, 1995, between the Company and Esther Stahler.
4.26 Common Stock Purchase Warrant dated effective as of
March 23, 1995, between the Company and Martin Bell.
4.27 Common Stock Purchase Warrant dated effective as of
March 23, 1995, between the Company and Ruki Renov.
4.28 Common Stock Purchase Warrant dated September 11, 1995
between the Company and Ally Capital Management, Inc.
5.1 Opinion of Conner & Winters, a Professional Corporation.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Conner & Winters, as contained in Exhibit 5.1
hereto and incorporated herein by reference.
24.1 Power of Attorney (included on signature page).
II-3
<PAGE>
<PAGE>
Item 17. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
''Securities Act'');
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the ''Exchange Act''), that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at the time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the indemnification
provisions described herein, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE>
<PAGE>
SIGNATURES FOR FORM S-3
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Gainesville, State of Florida, on the 22nd day of December,
1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: /s/ Louis Centofanti
___________________________
Dr. Louis F. Centofanti
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose
signature appears below hereby constitutes and appoints Dr. Louis
F. Centofanti as his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or
could do them in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or any of them, or their or his
substitute or substitutes, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
/s/ Louis Centofanti
_______________________ Chairman of the December 22, 1997
Dr. Louis F. Centofanti Board of Director,
President and
Chief Executive
Officer
(Principal Executive
Officer)
/s/ Richard T. Kelecy
_______________________ Chief Financial December 22, 1997
Richard T. Kelecy Officer
(Principal Financial
And Accounting Officer)
/s/ Mark A. Zwecker
_______________________ Director December 22, 1997
Mark A. Zwecker
/s/ Steve Gorlin
_______________________ Director December 22, 1997
Steve Gorlin
/s/ Jon Colin
_______________________ Director December 22, 1997
Jon Colin
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit Page
No. Description No.
________ ___________ _____
4.1 Subscription and Purchase Agreement,
dated June 9, 1997, between the Company
and RBB Bank Aktiengesellschaft as
incorporated by reference from Exhibit
4.1 to the Company's Form 8-K, dated
June 11, 1997. *
4.2 Subscription and Purchase Agreement,
dated July 7, 1997, between the Company
and the Infinity Fund, L.P. as incorporated
by reference from Exhibit 4.1 to the
Company's Form 8-K, dated July 7, 1997. *
4.3 Exchange Agreement, dated November 6, 1997,
to be considered effective as of September 16,
1997, between the Company and RBB Bank, as
incorporated by reference from Exhibit 4.11
from the Company's Report on Form 10-Q for
the period ended September 30, 1997. *
4.4 Certificate of Designations of Series 6
Class F Convertible Preferred Stock, dated
November 6, 1997, incorporated by reference
from Exhibit 4.7 to the Company's Report on
Form 10-Q for the period ended September 30,
1997. *
4.5 Specimen copy of Series 6 Class F Convertible
Preferred Stock Certificate, as incorporated
by reference from Exhibit 4.8 to the Company's
Report on Form 10-Q for the quarter ended
September 30, 1997. *
4.6 Exchange Agreement dated as of October 31, 1997,
to be considered effective as of September 16,
1997, between the Company and the Infinity Fund,
L.P., as incorporated by reference from Exhibit
4.12 to the Company's Report on Form 10-Q for
the period ended September 30, 1997. *
4.7 Certificate of Designations of Series 7 Class G
Convertible Preferred Stock, dated October 30,
1997, incorporated by reference from Exhibit
4.9 to the Company's Report on Form 10-Q for
the period ended September 30, 1997. *
4.8 Specimen copy of Series 7 Convertible Preferred
Stock Certificate, as incorporated by reference
from Exhibit 4.10 to the Company's Report on
Form 10-Q for the quarter ended September 30,
1997. *
<PAGE>
<PAGE>
4.9 Common Stock Purchase Warrant ($1.8125) No. RBB
9-97-1, dated September 16, 1997, between the
Company and RBB Bank Aktiengellschaft. 45
4.10 Common Stock Purchase Warrant ($1.8125) No. RBB
9-97-2, dated September 16, 1997, between the
Company and RBB Bank Aktiengellschaft. 54
4.11 Common Stock Purchase Warrant ($2.125) No. RBB
9-97-3, dated September 16, 1997, between the
Company and RBB Bank Aktiengellschaft. 61
4.12 Common Stock Purchase Warrant No. INF 9-97-1,
dated September 16, 1997, between the Company
and The Infinity Fund, L.P. 70
4.13 Common Stock Purchase Warrant No. INF 9-97-2,
dated September 16, 1997, between the Company
and The Infinity Fund, L.P. 80
4.14 Common Stock Purchase Warrant ($1.50), dated
June 9, 1997, between the Company and
JW Charles Financial Services, Inc., as
incorporated by reference from Exhibit 4.6
to the Company's Form 8-K, dated June 11, 1997. *
4.15 Common Stock Purchase Warrant ($2.00), dated
June 9, 1997, between the Company and
JW Charles Financial Services, Inc. as
incorporated by reference from Exhibit 4.7
to the Company's Form 8-K, dated June 11,
1997. *
4.16 Warrant Agreement, dated June 17, 1994, between
the Company and Sun Bank, National Association
as incorporated by reference from Exhibit 4.2
to the Company's Form 8-K, dated June 17, 1994. *
4.17 Common Stock Purchase Warrant ($2.00), dated
July 25, 1997, between the Company and Karl
Ehlert. 90
4.18 Common Stock Purchase Warrant ($3.00), dated
July 25, 1997, between the Company and Karl
Ehlert. 104
4.19 Common Stock Purchase Warrant ($2.00), dated
July 25, 1997, between the Company and Keith
Fetter. 118
4.20 Common Stock Purchase Warrant ($2.50), dated
July 25, 1997, between the Company and Keith
Fetter. 132
4.21 Common Stock Purchase Warrant, dated effective
as of September 16, 1997, between the Company
and Dionysus Limited. 140
<PAGE>
<PAGE>
4.22 Common Stock Purchase Warrant dated January,
1995, between the Company and D. H. Blair
Investment Banking Corp. 149
4.23 Common Stock Purchase Warrant dated effective
as of March 23, 1995, between the Company and
D. H. Blair Investment Banking Corp. 170
4.24 Common Stock Purchase Warrant dated effective
as of March 23, 1995, between the Company and
J. Morton Davis. 182
4.25 Common Stock Purchase Warrant dated effective
as of March 23, 1995, between the Company and
Esther Stahler. 195
4.26 Common Stock Purchase Warrant dated effective
as of March 23, 1995, between the Company and
Martin Bell. 208
4.27 Common Stock Purchase Warrant dated effective
as of March 23, 1995, between the Company and
Ruki Renov. 221
4.28 Common Stock Purchase Warrant dated September 11,
1995, between the Company and Ally Capital
Management, Inc. 234
5.1 Opinion of Conner & Winters, a Professional
Corporation. 250
23.1 Consent of BDO Seidman, LLP. 256
23.2 Consent of Conner & Winters, as contained in
Exhibit 5.1 hereto and incorporated herein by
reference. 257
24.1 Power of Attorney (included on signature
page). *
*incorporated by reference
BALL:\N-P\PESI\S-3\1997\RegSt\S3.13
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 REGISTRATION
RIGHTS SET FORTH IN THAT CERTAIN SUBSCRIPTION AND PURCHASE
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
RBB-9-97-1
Dated: September 16, 1997
One Hundred Eighty-Seven Thousand Five Hundred (187,500) Warrants
to Purchase One Hundred Eighty-Seven Thousand Five Hundred
(187,500)
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
June 9, 2000
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), hereby certifies that RBB BANK AKTIENGESELLSCHAFT,
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
<PAGE>
December 31, 1997, until 5:00 p.m., Eastern Daylight Savings Time
on June 9, 2000, up to an aggregate of one hundred eighty-seven
thousand five hundred (187,500) 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 $1.8125 per
share (the "Per Share Exercise Price").
1. Exercise of Warrant. Upon presentation and surrender of this
Common Stock Purchase Warrant Certificate ("Warrant Certificate" or
"this Certificate"), with the attached Purchase Form duly executed
and completed, at the principal office of the Company at
1940 Northwest 67th Place, Gainesville, Florida 32606-1649,
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. All or less than all of
the Warrants represented by this Certificate may be exercised and,
in case of the exercise of less than all, the Company, upon
surrender hereof, will deliver to the Warrant Holder a new Warrant
Certificate or Certificates of like tenor and dated the date hereof
entitling said Warrant Holder to purchase the number of Warrant
Shares represented by this Certificate which have not been
exercised and to receive the Registration Rights set forth in
Section 8 below (to the extent such rights have not already been
exercised) with respect to such Warrant Shares.
2. 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.
3. 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 Purchase Form, was surrendered and payment of
the Aggregate Exercise Price was made pursuant to the terms hereof,
irrespective of the date of delivery of such share certificate.
The rights of the Holder of this Certificate are limited to those
-2-
<PAGE>
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.
4. Common Stock.
4.1 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.
4.2 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.
5. 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.
-3-
<PAGE>
All such certificates shall bear a restrictive legend to the effect
that, subject to the provisions of Section 8 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 6.2 of this Warrant Certificate.
6. Disposition of Warrants or Shares.
6.1 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.
6.2 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
-4-
<PAGE>
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 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.
7. 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.
8. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights set forth in Section 5
of that certain Exchange Agreement by and between the Company and
the Warrant Holder dated effective as of September 16, 1997 (the
"Exchange Agreement"). It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon the exercise of this Warrant Certificate, in whole or
in part, from time to time and at any time.
9. Anti-Dilution.
9.1 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
-5-
<PAGE>
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.
9.2 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 9 with
respect to the rights and interests of the Holder to the
end that the provisions of this Section 9 thereafter
shall be correspondingly applicable, as nearly as may be,
to such securities and other property.
10. Redemption at Corporation's Option. At any time, and from
time to time, the Company may, at its sole option, but shall not be
obligated to, redeem this Warrant at a redemption price of one cent
($0.01) per Warrant Share covered by this Warrant (the "Redemption
Price"). The Company may exercise its option to redeem the Warrant
only if (a) the Warrant Shares are covered by a registration
statement filed with the U. S. Securities and Exchange Commission
which is effective as of the date the Redemption Notice (as defined
below) and (b) the average closing bid quotation of the Company's
Common Stock as reported on the National Association of Securities
Dealers Automated Quotation system ("NASDAQ"), or the average
closing price if listed on a national securities exchange for the
ten (10) trading days immediately prior to the date of the
Redemption Notice (as defined below) is more than $3.50.
10.1 Mechanics of Redemption. Thirty (30) days prior to any
date stipulated by the Company for the redemption of the
-6-
<PAGE>
Warrants (the "Redemption Date"), a written notice (the
"Redemption Notice") shall be mailed to each Holder of
record. The Redemption Notice shall state: (a) the
Redemption Date of the Warrants, (b) the number of
Warrants to be redeemed from the Holder to whom the
redemption notice is addressed, (c) instructions for
surrender to the Company in the manner and at the place
designated of the Warrant Certificate or Certificates
representing the Warrants to be redeemed from such
Holder, and (d) as to how to specify to the Company the
number of Warrants to be exercised into Warrant Shares,
as provided in Sections 1 and 10.2 hereof.
10.2 Exercise Upon Redemption. Upon receipt of the Redemption
Notice, the Holder of this Warrant shall have the option,
at its sole election, to specify what portion of its
Warrants called for redemption in the Redemption Notice
shall be redeemed as provided in this Section 10 or
exercised into Warrant Shares in the manner provided in
Section 1 hereof.
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 10):
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
-7-
<PAGE>
<PAGE>
with copies Conner & Winters
simultaneously One Leadership Square, Suite 1700
by like means to: 211 North Robinson
Oklahoma City, Oklahoma 73102
Attention: Irwin H. Steinhorn, Esquire
Fax No.: (405) 232-2695
If to the RBB Bank Aktiengesellschaft
Subscriber: Burgring 16, 8010 Graz, Austria
Attention: Herbert Strauss
Fax No.: 011-43-316-8072, 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.
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 September 16, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By___________________________
Dr. Louis F. Centofanti
Chief Executive Officer
-8-
<PAGE>
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Warrant Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby irrevocable elects to exercise
___________ of the Warrants represented by this Common Stock
Warrant Certificate, and to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that
certificates for securities be issued in the name of:
_____________________________________________
(Please type or print name and address)
______________________________________________
______________________________________________
_______________________________________________
(Social Security Number)
and delivered to
(Please type or print name and address)
and, if such number of Warrants shall not be all the Warrants
evidenced by this Common Stock Warrant Certificate, that a new
Common Stock Warrant Certificate for the balance of such Warrants
be registered in the name of, and delivered to, the Holder at the
address stated below.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned
hereby tenders payment of $_______________ by cash, cashier's check
or certified check payable in United States currency to the order
of Perma-Fix Environmental Services, Inc.
Dated: __________________. ________________________________
________________________________
(Address)
________________________________
________________________________
(Social Security or Federal
I. D. Number)
________________________________
Signature(s) guaranteed
BALL:\N-P\PESI\S-3\1997\FINWAR\WAR9-1.210
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 REGISTRATION
RIGHTS SET FORTH IN THAT CERTAIN SUBSCRIPTION AND PURCHASE
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
RBB-9-97-2
Dated: September 16, 1997
One Hundred Eighty-Seven Thousand Five Hundred (187,500) Warrants
to Purchase One Hundred Eighty-Seven Thousand Five Hundred
(187,500)
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
June 9, 2000
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), hereby certifies that RBB BANK AKTIENGESELLSCHAFT,
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 December
31, 1997, until 5:00 p.m., Eastern Daylight Savings Time on June 9,
2000, up to an aggregate of one hundred eighty-seven thousand five
<PAGE>
hundred (187,500) 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 $1.8125 per share (the "Per
Share Exercise Price").
1. Exercise of Warrant. Upon presentation and surrender of this
Common Stock Purchase Warrant Certificate ("Warrant Certificate" or
"this Certificate"), with the attached Purchase Form duly executed
and completed, at the principal office of the Company at
1940 Northwest 67th Place, Gainesville, Florida 32606-1649,
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. All or less than all of
the Warrants represented by this Certificate may be exercised and,
in case of the exercise of less than all, the Company, upon
surrender hereof, will deliver to the Warrant Holder a new Warrant
Certificate or Certificates of like tenor and dated the date hereof
entitling said Warrant Holder to purchase the number of Warrant
Shares represented by this Certificate which have not been
exercised and to receive the Registration Rights set forth in
Section 8 below (to the extent such rights have not already been
exercised) with respect to such Warrant Shares.
2. 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.
3. 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 Purchase Form, was surrendered and payment of
the Aggregate Exercise Price was made pursuant to the terms hereof,
irrespective of the date of delivery of such share 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
-2-
<PAGE>
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.
4. Common Stock.
4.1 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.
4.2 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.
5. 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 8 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
-3-
<PAGE>
thereof, such legend to be substantially in the form set forth in
Section 6.2 of this Warrant Certificate.
6. Disposition of Warrants or Shares.
6.1 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.
6.2 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:
-4-
<PAGE>
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 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.
7. 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.
8. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights set forth in Section 5
of that certain Exchange Agreement by and between the Company and
the Warrant Holder dated effective as of September 16, 1997 (the
"Exchange Agreement"). It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon the exercise of this Warrant Certificate, in whole or
in part, from time to time and at any time.
9. Anti-Dilution.
9.1 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
-5-
<PAGE>
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.
9.2 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 9 with
respect to the rights and interests of the Holder to the
end that the provisions of this Section 9 thereafter
shall be correspondingly applicable, as nearly as may be,
to such securities and other property.
10. Redemption at Corporation's Option. At any time, and from
time to time, the Company may, at its sole option, but shall not be
obligated to, redeem this Warrant at a redemption price of one cent
($0.01) per Warrant Share covered by this Warrant (the "Redemption
Price"). The Company may exercise its option to redeem the Warrant
only if (a) the Warrant Shares are covered by a registration
statement filed with the U. S. Securities and Exchange Commission
which is effective as of the date the Redemption Notice (as defined
below) and (b) the average closing bid quotation of the Company's
Common Stock as reported on the National Association of Securities
Dealers Automated Quotation system ("NASDAQ"), or the average
closing price if listed on a national securities exchange for the
ten (10) trading days immediately prior to the date of the
Redemption Notice (as defined below) is more than $4.00.
10.1 Mechanics of Redemption. Thirty (30) days prior to any
date stipulated by the Company for the redemption of the
Warrants (the "Redemption Date"), a written notice (the
"Redemption Notice") shall be mailed to each Holder of
record. The Redemption Notice shall state: (a) the
Redemption Date of the Warrants, (b) the number of
Warrants to be redeemed from the Holder to whom the
redemption notice is addressed, (c) instructions for
surrender to the Company in the manner and at the place
designated of the Warrant Certificate or Certificates
representing the Warrants to be redeemed from such
Holder, and (d) as to how to specify to the Company the
-6-
<PAGE>
number of Warrants to be exercised into Warrant Shares,
as provided in Sections 1 and 10.2 hereof.
10.2 Exercise Upon Redemption. Upon receipt of the Redemption
Notice, the Holder of this Warrant shall have the option,
at its sole election, to specify what portion of its
Warrants called for redemption in the Redemption Notice
shall be redeemed as provided in this Section 10 or
exercised into Warrant Shares in the manner provided in
Section 1 hereof.
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 10):
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
with copies Conner & Winters
simultaneously One Leadership Square, Suite 1700
by like means to: 211 North Robinson
Oklahoma City, Oklahoma 73102
Attention: Irwin H. Steinhorn, Esquire
Fax No.: (405) 232-2695
If to the RBB Bank Aktiengesellschaft
Subscriber: Burgring 16, 8010 Graz, Austria
Attention: Herbert Strauss
Fax No.: 011-43-316-8072, ext. 392
12. Governing Law. This Warrant Certificate and all rights and
obligations hereunder shall be deemed to be made under and governed
-7-
<PAGE>
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.
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 September 16, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By___________________________
Dr. Louis F. Centofanti
Chief Executive Officer
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<PAGE>
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Warrant Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby irrevocable elects to exercise
___________ of the Warrants represented by this Common Stock
Warrant Certificate, and to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that
certificates for securities be issued in the name of:
_____________________________________________
(Please type or print name and address)
______________________________________________
______________________________________________
_______________________________________________
(Social Security Number)
and delivered to
(Please type or print name and address)
and, if such number of Warrants shall not be all the Warrants
evidenced by this Common Stock Warrant Certificate, that a new
Common Stock Warrant Certificate for the balance of such Warrants
be registered in the name of, and delivered to, the Holder at the
address stated below.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned
hereby tenders payment of $_______________ by cash, cashier's check
or certified check payable in United States currency to the order
of Perma-Fix Environmental Services, Inc.
Dated: __________________ _______________________________
________________________________
(Address)
________________________________
________________________________
(Social Security or Federal
I. D. Number)
________________________________
Signature(s) guaranteed
BALL:\N-P\PESI\S-3\1997\FINWAR\WAR9-2.250
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 REGISTRATION
RIGHTS SET FORTH IN THAT CERTAIN SUBSCRIPTION AND PURCHASE
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
RBB-9-97-3
Dated: September 16, 1997
Two Hundred Eighty-One Thousand Two Hundred Fifty (281,250)
Warrants
to Purchase Two Hundred Eighty-One Thousand Two Hundred Fifty
(281,250)
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
June 9, 2000
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), hereby certifies that RBB BANK AKTIENGESELLSCHAFT,
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
<PAGE>
December 31, 1997, until 5:00 p.m., Eastern Daylight Savings Time
on June 9, 2000, up to an aggregate of two hundred eighty-one
thousand two hundred fifty (281,250) 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 $2.125
per share (the "Per Share Exercise Price").
1. Exercise of Warrant. Upon presentation and surrender of this
Common Stock Purchase Warrant Certificate ("Warrant Certificate" or
"this Certificate"), with the attached Purchase Form duly executed
and completed, at the principal office of the Company at
1940 Northwest 67th Place, Gainesville, Florida 32606-1649,
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. All or less than all of
the Warrants represented by this Certificate may be exercised and,
in case of the exercise of less than all, the Company, upon
surrender hereof, will deliver to the Warrant Holder a new Warrant
Certificate or Certificates of like tenor and dated the date hereof
entitling said Warrant Holder to purchase the number of Warrant
Shares represented by this Certificate which have not been
exercised and to receive the Registration Rights set forth in
Section 8 below (to the extent such rights have not already been
exercised) with respect to such Warrant Shares.
2. 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.
3. 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 Purchase Form, was surrendered and payment of
the Aggregate Exercise Price was made pursuant to the terms hereof,
irrespective of the date of delivery of such share 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
-2-
<PAGE>
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.
4. Common Stock.
4.1 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.
4.2 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.
5. 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 8 below, the Shares
represented by such certificate have not been registered under the
Securities Act of 1933, as amended, or qualified under any state
-3-
<PAGE>
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 6.2 of this Warrant Certificate.
6. Disposition of Warrants or Shares.
6.1 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.
6.2 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:
-4-
<PAGE>
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 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.
7. 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.
8. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights set forth in Section 5
of that certain Exchange Agreement by and between the Company and
the Warrant Holder dated effective as of September 16, 1997 (the
"Exchange Agreement"). It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon the exercise of this Warrant Certificate, in whole or
in part, from time to time and at any time.
9. Anti-Dilution.
9.1 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
-5-
<PAGE>
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.
9.2 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 9 with
respect to the rights and interests of the Holder to the
end that the provisions of this Section 9 thereafter
shall be correspondingly applicable, as nearly as may be,
to such securities and other property.
10. Redemption at Corporation's Option. At any time, and from
time to time, the Company may, at its sole option, but shall not be
obligated to, redeem this Warrant at a redemption price of one cent
($0.01) per Warrant Share covered by this Warrant (the "Redemption
Price"). The Company may exercise its option to redeem the Warrant
only if (a) the Warrant Shares are covered by a registration
statement filed with the U. S. Securities and Exchange Commission
which is effective as of the date the Redemption Notice (as defined
below) and (b) the average closing bid quotation of the Company's
Common Stock as reported on the National Association of Securities
Dealers Automated Quotation system ("NASDAQ"), or the average
closing price if listed on a national securities exchange for the
ten (10) trading days immediately prior to the date of the
Redemption Notice (as defined below) is more than $6.00.
10.1 Mechanics of Redemption. Thirty (30) days prior to any
date stipulated by the Company for the redemption of the
Warrants (the "Redemption Date"), a written notice (the
"Redemption Notice") shall be mailed to each Holder of
record. The Redemption Notice shall state: (a) the
Redemption Date of the Warrants, (b) the number of
Warrants to be redeemed from the Holder to whom the
redemption notice is addressed, (c) instructions for
surrender to the Company in the manner and at the place
designated of the Warrant Certificate or Certificates
representing the Warrants to be redeemed from such
Holder, and (d) as to how to specify to the Company the
-6-
<PAGE>
number of Warrants to be exercised into Warrant Shares,
as provided in Sections 1 and 10.2 hereof.
10.2 Exercise Upon Redemption. Upon receipt of the Redemption
Notice, the Holder of this Warrant shall have the option,
at its sole election, to specify what portion of its
Warrants called for redemption in the Redemption Notice
shall be redeemed as provided in this Section 10 or
exercised into Warrant Shares in the manner provided in
Section 1 hereof.
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 10):
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention:Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
with copies Conner & Winters
simultaneously One Leadership Square, Suite 1700
by like means to: 211 North Robinson
Oklahoma City, Oklahoma 73102
Attention: Irwin H. Steinhorn, Esquire
Fax No.: (405) 232-2695
If to the RBB Bank Aktiengesellschaft
Subscriber: Burgring 16, 8010 Graz, Austria
Attention: Herbert Strauss
Fax No.: 011-43-316-8072, ext. 392
12. Governing Law. This Warrant Certificate and all rights and
obligations hereunder shall be deemed to be made under and governed
-7-
<PAGE>
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.
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 September 16, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By______________________________
Dr. Louis F. Centofanti
Chief Executive Officer
-8-
<PAGE>
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Warrant Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby irrevocable elects to exercise
___________ of the Warrants represented by this Common Stock
Warrant Certificate, and to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that
certificates for securities be issued in the name of:
_____________________________________________
(Please type or print name and address)
______________________________________________
______________________________________________
_______________________________________________
(Social Security Number)
and delivered to
(Please type or print name and address)
and, if such number of Warrants shall not be all the Warrants
evidenced by this Common Stock Warrant Certificate, that a new
Common Stock Warrant Certificate for the balance of such Warrants
be registered in the name of, and delivered to, the Holder at the
address stated below.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned
hereby tenders payment of $_______________ by cash, cashier's check
or certified check payable in United States currency to the order
of Perma-Fix Environmental Services, Inc.
Dated: __________________. ________________________________
________________________________
(Address)
________________________________
________________________________
(Social Security or Federal
I. D. Number)
________________________________
Signature(s) guaranteed
BALL:\N-P\PESI\S-3\1997\FINWAR\WAR9-3.212
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.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH
(13) OF THE CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF
1973, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT.
NOTWITHSTANDING THE FOREGOING, THE SHARES OF COMMON STOCK
ISSUABLE
UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE REGISTRATION
RIGHTS SET FORTH IN THAT CERTAIN EXCHANGE 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
INF-9-97-1
Dated: September 16, 1997
Twenty-Six Thousand Five Hundred (26,500) Warrants
to Purchase Twenty-Six Thousand Five Hundred (26,500)
Shares of Perma-Fix Environmental Services, Inc.
Common Stock, $.001 Par Value Per Share
VOID AFTER 5:00 P.M., UNITED STATES EASTER DAYLIGHT SAVINGS TIME
on
July 7, 2000
<PAGE>
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), hereby certifies that THE INFINITY FUND, L.P., a
Georgia limited partnership, 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 December
31, 1997, until 5:00 p.m., Eastern Daylight Savings Time on July 7,
2000, up to an aggregate of twenty-six thousand five hundred
(26,500) 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 $1.8125 per share (the "Per Share Exercise
Price").
1. Exercise of Warrant. Upon presentation and surrender of this
Common Stock Purchase Warrant Certificate ("Warrant Certificate" or
"this Certificate"), with the attached Purchase Form duly executed
and completed, at the principal office of the Company at
1940 Northwest 67th Place, Gainesville, Florida 32606-1649,
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. All or less than all of
the Warrants represented by this Certificate may be exercised and,
in case of the exercise of less than all, the Company, upon
surrender hereof, will deliver to the Warrant Holder a new Warrant
Certificate or Certificates of like tenor and dated the date hereof
entitling said Warrant Holder to purchase the number of Warrant
Shares represented by this Certificate which have not been
exercised and to receive the Registration Rights set forth in
Section 8 below (to the extent such rights have not already been
exercised) with respect to such Warrant Shares.
2. 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.
3. 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
-2-
<PAGE>
such Common Stock on the date on which this Certificate, together
with a duly executed Purchase Form, was surrendered and payment of
the Aggregate Exercise Price was made pursuant to the terms hereof,
irrespective of the date of delivery of such share 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.
4. Common Stock.
4.1 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.
4.2 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.
5. 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
-3-
<PAGE>
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 8 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 6.2 of this Warrant Certificate.
6. Disposition of Warrants or Shares.
6.1 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.
6.2 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
-4-
<PAGE>
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 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.
7. 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.
8. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights set forth in Section 5
of that certain Exchange Agreement by and between the Company and
the Warrant Holder dated effective as of September 16, 1997 (the
"Exchange Agreement"). It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon the exercise of this Warrant Certificate, in whole or
in part, from time to time and at any time.
9. Anti-Dilution.
9.1 If the Company at any time, or from time to time, while
this Warrant Certificate is outstanding shall declare or
-5-
<PAGE>
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.
9.2 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 9 with
respect to the rights and interests of the Holder to the
end that the provisions of this Section 9 thereafter
shall be correspondingly applicable, as nearly as may be,
to such securities and other property.
10. Redemption at Corporation's Option. At any time, and from
time to time, the Company may, at its sole option, but shall not be
obligated to, redeem this Warrant at a redemption price of one cent
($0.01) per Warrant Share covered by this Warrant (the "Redemption
Price"). The Company may exercise its option to redeem the Warrant
only if (a) the Warrant Shares are covered by a registration
statement filed with the U. S. Securities and Exchange Commission
which is effective as of the date the Redemption Notice (as defined
below) and (b) the average closing bid quotation of the Company's
Common Stock as reported on the National Association of Securities
Dealers Automated Quotation system ("NASDAQ"), or the average
closing price if listed on a national securities exchange for the
-6-
<PAGE>
ten (10) trading days immediately prior to the date of the
Redemption Notice (as defined below) is more than $7.00.
10.1 Mechanics of Redemption. Thirty (30) days prior to any
date stipulated by the Company for the redemption of the
Warrants (the "Redemption Date"), a written notice (the
"Redemption Notice") shall be mailed to each Holder of
record. The Redemption Notice shall state: (a) the
Redemption Date of the Warrants, (b) the number of
Warrants to be redeemed from the Holder to whom the
redemption notice is addressed, (c) instructions for
surrender to the Company in the manner and at the place
designated of the Warrant Certificate or Certificates
representing the Warrants to be redeemed from such
Holder, and (d) as to how to specify to the Company the
number of Warrants to be exercised into Warrant Shares,
as provided in Sections 1 and 10.2 hereof.
10.2 Exercise Upon Redemption. Upon receipt of the Redemption
Notice, the Holder of this Warrant shall have the option,
at its sole election, to specify what portion of its
Warrants called for redemption in the Redemption Notice
shall be redeemed as provided in this Section 10 or
exercised into Warrant Shares in the manner provided in
Section 1 hereof.
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 10):
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
-7-
<PAGE>
<PAGE>
with copies Conner & Winters
simultaneously One Leadership Square, Suite 1700
by like means to: 211 North Robinson
Oklahoma City, Oklahoma 73102
Attention: Irwin H. Steinhorn, Esquire
Fax No.: (405) 232-2695
If to the The Infinity Fund, L.P.
Subscriber: 3 Piedmont Center, Suite 210
Atlanta, Georgia 30305
Attention: Mr. Barry Pearl
Fax No.: (404) 231-1375
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.
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 September 16, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By_____________________________
Dr. Louis F. Centofanti
Chief Executive Officer
-8-
<PAGE>
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Warrant Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby irrevocable elects to exercise
___________ of the Warrants represented by this Common Stock
Warrant Certificate, and to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that
certificates for securities be issued in the name of:
_____________________________________________
(Please type or print name and address)
______________________________________________
______________________________________________
_______________________________________________
(Social Security Number)
and delivered to
(Please type or print name and address)
and, if such number of Warrants shall not be all the Warrants
evidenced by this Common Stock Warrant Certificate, that a new
Common Stock Warrant Certificate for the balance of such Warrants
be registered in the name of, and delivered to, the Holder at the
address stated below.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned
hereby tenders payment of $_______________ by cash, cashier's check
or certified check payable in United States currency to the order
of Perma-Fix Environmental Services, Inc.
Dated: __________________. ________________________________
_______________________________
(Address)
________________________________
________________________________
(Social Security or Federal
I. D. Number)
________________________________
Signature(s) guaranteed
-9-
BALL:\N-P\PESI\S-3\1997\INFINITY\WARRANT1.181
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.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH
(13) OF THE CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF
1973, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT.
NOTWITHSTANDING THE FOREGOING, THE SHARES OF COMMON STOCK
ISSUABLE
UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE REGISTRATION
RIGHTS SET FORTH IN THAT CERTAIN EXCHANGE 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
INF-9-97-2
Dated: September 16, 1997
Eight Thousand Five Hundred (8,500) Warrants
to Purchase Eight Thousand Five Hundred (8,500)
Shares of Perma-Fix Environmental Services, Inc.
Common Stock, $.001 Par Value Per Share
VOID AFTER 5:00 P.M., UNITED STATES EASTER DAYLIGHT SAVINGS TIME
on
July 7, 2000
<PAGE>
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
(the "Company"), hereby certifies that THE INFINITY FUND, L.P., a
Georgia limited partnership, 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 December
31, 1997, until 5:00 p.m., Eastern Daylight Savings Time on July 7,
2000, up to an aggregate of eight thousand five hundred (8,500)
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 $1.8125 per share (the "Per Share Exercise
Price").
1. Exercise of Warrant. Upon presentation and surrender of this
Common Stock Purchase Warrant Certificate ("Warrant Certificate" or
"this Certificate"), with the attached Purchase Form duly executed
and completed, at the principal office of the Company at
1940 Northwest 67th Place, Gainesville, Florida 32606-1649,
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. All or less than all of
the Warrants represented by this Certificate may be exercised and,
in case of the exercise of less than all, the Company, upon
surrender hereof, will deliver to the Warrant Holder a new Warrant
Certificate or Certificates of like tenor and dated the date hereof
entitling said Warrant Holder to purchase the number of Warrant
Shares represented by this Certificate which have not been
exercised and to receive the Registration Rights set forth in
Section 8 below (to the extent such rights have not already been
exercised) with respect to such Warrant Shares.
2. 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.
3. 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 Purchase Form, was surrendered and payment of
-2-
<PAGE>
the Aggregate Exercise Price was made pursuant to the terms 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.
4. Common Stock.
4.1 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.
4.2 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.
5. 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.
-3-
<PAGE>
All such certificates shall bear a restrictive legend to the effect
that, subject to the provisions of Section 8 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 6.2 of this Warrant Certificate.
6. Disposition of Warrants or Shares.
6.1 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.
6.2 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
-4-
<PAGE>
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 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.
7. 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.
8. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights set forth in Section 5
of that certain Exchange Agreement by and between the Company and
the Warrant Holder dated effective as of September 16, 1997 (the
"Exchange Agreement"). It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon the exercise of this Warrant Certificate, in whole or
in part, from time to time and at any time.
9. Anti-Dilution.
9.1 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
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<PAGE>
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.
9.2 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 9 with
respect to the rights and interests of the Holder to the
end that the provisions of this Section 9 thereafter
shall be correspondingly applicable, as nearly as may be,
to such securities and other property.
10. Redemption at Corporation's Option. At any time, and from
time to time, the Company may, at its sole option, but shall not be
obligated to, redeem this Warrant at a redemption price of one cent
($0.01) per Warrant Share covered by this Warrant (the "Redemption
Price"). The Company may exercise its option to redeem the Warrant
only if (a) the Warrant Shares are covered by a registration
statement filed with the U. S. Securities and Exchange Commission
which is effective as of the date the Redemption Notice (as defined
below) and (b) the average closing bid quotation of the Company's
Common Stock as reported on the National Association of Securities
Dealers Automated Quotation system ("NASDAQ"), or the average
closing price if listed on a national securities exchange for the
ten (10) trading days immediately prior to the date of the
Redemption Notice (as defined below) is more than $7.00.
10.1 Mechanics of Redemption. Thirty (30) days prior to any
date stipulated by the Company for the redemption of the
Warrants (the "Redemption Date"), a written notice (the
"Redemption Notice") shall be mailed to each Holder of
record. The Redemption Notice shall state: (a) the
Redemption Date of the Warrants, (b) the number of
Warrants to be redeemed from the Holder to whom the
redemption notice is addressed, (c) instructions for
surrender to the Company in the manner and at the place
designated of the Warrant Certificate or Certificates
-6-
<PAGE>
representing the Warrants to be redeemed from such
Holder, and (d) as to how to specify to the Company the
number of Warrants to be exercised into Warrant Shares,
as provided in Sections 1 and 10.2 hereof.
10.2 Exercise Upon Redemption. Upon receipt of the Redemption
Notice, the Holder of this Warrant shall have the option,
at its sole election, to specify what portion of its
Warrants called for redemption in the Redemption Notice
shall be redeemed as provided in this Section 10 or
exercised into Warrant Shares in the manner provided in
Section 1 hereof.
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 10):
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
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<PAGE>
<PAGE>
with copies Conner & Winters
simultaneously One Leadership Square, Suite 1700
by like means to: 211 North Robinson
Oklahoma City, Oklahoma 73102
Attention: Irwin H. Steinhorn, Esquire
Fax No.: (405) 232-2695
If to the Subscriber: The Infinity Fund, L.P.
3 Piedmont Center, Suite 210
Atlanta, Georgia 30305
Attention: Mr. Barry Pearl
Fax No.: (404) 231-1375
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.
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 September 16, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By_____________________________
Dr. Louis F. Centofanti
Chief Executive Officer
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<PAGE>
<PAGE>
ELECTION TO PURCHASE
To Be Executed by the Warrant Holder
in Order to Exercise the Common Stock
Purchase Warrant Certificate
The undersigned Holder hereby irrevocable elects to exercise
___________ of the Warrants represented by this Common Stock
Warrant Certificate, and to purchase the shares of Common Stock
issuable upon the exercise of such Warrants and requests that
certificates for securities be issued in the name of:
_____________________________________________
(Please type or print name and address)
______________________________________________
______________________________________________
_______________________________________________
(Social Security Number)
and delivered to
(Please type or print name and address)
and, if such number of Warrants shall not be all the Warrants
evidenced by this Common Stock Warrant Certificate, that a new
Common Stock Warrant Certificate for the balance of such Warrants
be registered in the name of, and delivered to, the Holder at the
address stated below.
In full payment of the purchase price with respect to the
Warrants exercised and transfer taxes, if any, the undersigned
hereby tenders payment of $_______________ by cash, cashier's check
or certified check payable in United States currency to the order
of Perma-Fix Environmental Services, Inc.
Dated: __________________. ______________________________
_______________________________
(Address)
_______________________________
________________________________
(Social Security or
Federal I. D. Number)
________________________________
Signature(s) guaranteed
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BALL:\N-P\PESI\S-3\1997\INFINITY\WARRANT2.181
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 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. 7-97-1 175,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, Perma-Fix Environmental Services,
Inc., a Delaware corporation (the "Company") hereby grants to Karl
H. Ehlert, who resides in Porto Colom (Mallorca), Spain, or any
permitted assignee (the "Holder"), the right to purchase at any
time during the period commencing the 25th day of July, 1997, and
ending at 5:00 p.m., Atlanta, Georgia time, on July 24, 2002 (the
"Exercise Period"), up to one hundred seventy-five thousand
(175,000), fully paid and nonassessable shares of the Company's
common stock, $.001 par value ("Common Stock"), subject to
adjustment from time to time as hereinafter provided. The purchase
price for each share of Common Stock to be issued and delivered by
the Company upon the exercise of this warrant is Two and no/100
Dollars ($2.00) per share (the "Warrant Price"), 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 collectively referred to as the
"Warrant." The shares of Common Stock issued upon the exercise of
the Warrant are hereinafter collectively referred to as "Warrant
Shares."
1. Exercise of Warrant. This Warrant may be exercised by the
Holder, in whole or in part from time to time, during the Exercise
Period subject to the prior satisfaction of the provisions set
forth herein. This Warrant may be exercised by the Holder
delivering to the Company this Warrant and the duly executed
subscription in the form set forth at the end hereof, with such
subscription and Warrant being accompanied by the payment to the
Company 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 ("Total Warrant Price").
Payment by the Holder of the Total Warrant Price will 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 must
<PAGE>
be for a whole number of Warrant Shares and the Holder will be
entitled to receive a new Warrant covering the number of Warrant
Shares for which this Warrant has not been exercised. Upon any
exercise and surrender of this Warrant, the Company will (a) 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 has purchased under this Warrant pursuant to the
terms hereof; (b) in lieu of any fractional Warrant Share, deliver
to the Holder cash in an amount equal to the fair value of such
fractional share (calculated in such reasonable manner as the Board
of Directors of the Company shall determine), and (c) 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.
2. Reservation of Warrant Shares. At all times prior to the
expiration of this Warrant the Company will have authorized and
maintain in reserve solely for issuance upon the exercise of the
Warrant the number of shares Common Stock and the amount of other
securities and properties as from time to time are deliverable upon
the exercise of this Warrant. Such authorized and reserved shares
of Common Stock will be free and clear of all restrictions on sale
or transfer (except as otherwise provided by this Warrant 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 Distribution Without Payment Therefor. If at any time
or from time to time after the date of this Warrant,
the Company distributes pro rata to all of the holders
of its then outstanding Common Stock securities or
property, other than cash, without payment therefor,
then in each such case the Holder will be entitled to
receive upon exercise of this Warrant the securities
and property which the Holder would hold on the date of
such exercise if, on the record date for such
distribution, the Holder had exercised this Warrant and
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. Notice of
each such distribution will be mailed promptly to the
Holder.
3.2 Dividend, Division or Combination. If at any time or
from time to time after the date of this Warrant, the
2
<PAGE>
Company (a) pays a dividend on its Common Stock in
shares of Common Stock, (b) subdivides its outstanding
shares of Common Stock into a greater number of shares,
(c) combines its outstanding shares of Common Stock
into a smaller number of shares, or (d) issues 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 will be adjusted so
that, upon exercise of this Warrant, the Holder shall
be entitled to purchase under this Warrant, without
additional consideration, the number of shares of
Common Stock or other capital stock of the Company
which the Holder would have owned or been entitled to
purchase immediately following the happening of any of
the events described above in this paragraph 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 on 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 paragraph 3.2 will become
effective immediately after the record date in the case
of a dividend and will 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 paragraph 3.2, the
Holder becomes 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 will be
conclusive and will be described in a written notice to
the Holder promptly after such adjustment) will
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 Consolidation, Merger or Sale. 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 will have the right thereafter, upon exercise of
3
<PAGE>
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 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. If
necessary, appropriate adjustment will be made in the
application of the provisions of paragraph 3 with
respect to the rights and interests of the Holder so
that the provisions of paragraph 3 following such event
will be correspondingly applicable, as nearly as may
reasonably be, to such securities and other property.
The provisions of this paragraph 3.3 will 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, will be mailed to the Holder 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 will
be deemed a consolidation or merger for the purposes of
this paragraph 3.3.
3.4 Adjustments. The Warrant Price will not be adjusted
unless such adjustment would require an increase or
decrease of at least $0.10. Any adjustments which are
not required to be made pursuant to the foregoing
sentence will be carried forward and taken into account
in any subsequent adjustment. All calculations under
paragraph 3 will be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
Anything in paragraph 3 to the contrary notwith-
standing, the Company will be entitled to make such
reductions in the Warrant Price, in addition to those
required by paragraph 3, as the Company deems to be
advisable so 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 will
not be taxable.
3.5 Certification of Adjustment. Whenever the Warrant
Price is adjusted as provided in paragraph 3 and upon
any modification of the rights of the Holder in
accordance with paragraph 3, the Chief Financial
Officer of the Company will certify promptly the
Warrant Price, the number of Warrant Shares after such
adjustment or modification, a brief statement of the
facts requiring such adjustment or modification and the
4
<PAGE>
manner of computing the same, and will cause such
certificate to be delivered to the Holder.
4. Fully Paid Shares; Taxes. The shares of the Common Stock
represented by each certificate for Warrant Shares delivered upon
the exercise of this Warrant will, at the time of such delivery, be
validly issued and outstanding, fully paid and nonassessable, and
not subject to preemptive rights. 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 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. Piggyback Right. Subject to the terms of this paragraph 5, if
at any time during the Exercise Period the Company proposes to
register shares of Common Stock for public sale in a firm
commitment underwriting for its own account under a Form S-1, Form
S-2 or Form S-3 registration statement filed with the Securities
and Exchange Commission (the "Commission"), the Company will give
the Holder notice of such proposed registration at least twenty
(20) calendar days prior to the filing of a 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 will state the Holder's intent to sell
all of the Warrant Shares then owned by the Holder, the Company
will use its reasonable efforts to register such Warrant Shares
under the same registration statement otherwise being filed by the
Company. The Company will 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 Common Stock
being sold for the account of the Company. All Warrant Shares
registered pursuant to this paragraph 5 must be offered for sale in
the public offering by the same underwriter or underwriters that
are offering the other shares of the 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.
5.1 Shares Includible. The Company will not be required to
include any of the Warrant Shares in any such regis-
tration statement unless the Holder accepts the terms
of the underwriting as agreed upon between the Company
and the managing underwriter or underwriters, and then
only in such quantity as will not, in the opinion of
the managing underwriters, jeopardize the success of
the offering by the Company. If the total amount of
Warrant Shares requested to be included in the regis-
tration statement by the Holder and other shareholders
of the Company that request the inclusion of securities
5
<PAGE>
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 will be required to include only 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. In such event, the Warrant
Shares and other securities of the Company held by the
other Shareholders to be included will 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 Share-
holders so requested to be included in the registration
statement or in such other proportions as mutually
agreed by the Holder and the Other Shareholders. No
reduction will be made with respect to the securities
offered by the Company or any shareholders whose shares
are included in such registration statement other than
pursuant to piggyback registration rights.
5.2 Expiration of Right. The right to participate in a
registration with the Company pursuant to paragraph 5
will be exercisable by the Holder only on one (1)
occasion. The Holder's rights under this paragraph 5
will expire and terminate at the earlier of (a) the
date the Holder receives from counsel for the Company
a written opinion of such counsel that the Holder has
the right, pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act"), to sell
as of the date of such opinion, any portion of the
Warrant Shares then held and/or purchasable upon the
exercise of this Warrant by the Holder or (b) upon a
registration statement being declared effective by the
Commission in which the Company has included at least
fifty percent (50%) of the Warrant Shares within the
coverage of such registration statement.
5.3 Actions by Company. Whenever the Company includes
Warrant Shares in a registration statement, the Company
will (a) furnish the Holder of Warrant Shares included
in such registration statement and each underwriter of
such Warrant Shares the number of copies of a current
prospectus, including the preliminary prospectus,
conforming to the requirements of Section 10 of the Act
(and such other documents as each such Holder or each
such underwriter may reasonably request), as such
Holder(s) and underwriter(s) may reasonably require in
order to effectuate the offer and sale of the Warrant
Shares included in such registration statement; (b) use
6
<PAGE>
its reasonable efforts to register or qualify such
Warrant Shares under the blue sky laws (to the extent
applicable) of such jurisdiction or jurisdictions which
the Company deems appropriate or necessary; provided,
however, that the Company will not be obligated to
register or qualify any Warrant Shares under those
"blue sky" securities laws which the Company deems are
unduly burdensome in connection with such registration
or qualification of Warrant Shares in such state; and
(c) take such other actions as may be reasonably
necessary or advisable to enable such Holder(s) and
such underwriters to consummate the sale or
distribution in such jurisdiction or jurisdictions in
which such Holder(s) reasonably requests that the
Warrant Shares be sold; provided, however, that the
Company will not be required to qualify as a foreign
corporation or broker-dealer in any jurisdiction or to
file a consent to service of process in any
jurisdiction in any action other than one arising out
of the offering or sale of the Warrant Shares.
5.4 Payment of Expenses. The Company will pay all expenses
incurred in connection with any registration of the
offer and sale of the Warrant Shares pursuant to the
provisions paragraph 5 of this Agreement, except the
Holder will pay (a) all underwriting discounts and
concessions, brokerage commissions, applicable
insurance and transfer taxes relating to the sale of
the Warrant Shares, and (b) all fees and expenses
incurred by counsel for the Holder in connection with
such registration.
6. Indemnification. If the Company includes any Warrant Shares
in a registration statement filed by the Company with the
Commission, the Company and the Holder agree as follows:
6.1 By the Company. Except provided in paragraph 6.1.2,
the Company will indemnify and hold harmless the Holder
and each other entity or person, if any, controlling
the Holder (a "Controlling Person") within the meaning
of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), against any Stockholder Liability (as defined
below) to which the Holder or the Controlling Party
becomes subject under the Act.
6.1.1 Stockholder Liability. As used in this
paragraph 6.1 and subject to paragraph 6.1.2
below, the term "Stockholder Liability" means
any losses, claims, damages or liabilities
under the Act with respect to the registration
7
<PAGE>
statement, including any preliminary
prospectus or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue or alleged
untrue statement of material fact contained
therein or (b) 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.
6.1.2 Exception to Indemnity. The indemnity
agreement contained in paragraph 6.1 will not
apply to (a) amounts paid in settlement of any
Stockholder Liability if such settlement is
effected without the consent of the Company,
which consent will not be unreasonably
withheld or (b) any Stockholder Liability to
the extent that the Stockholder Liability
arises out of, or is based upon, any untrue
statement or alleged untrue statement or
omission or alleged omission made in
connection with the registration statement,
preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon, and
in conformity with, written information
furnished to the Company for use in connection
with the registration statement by the Holder
or Controlling Party.
6.2 By the Holder. Except as otherwise provided in
paragraph 6.2.2, the Holder will indemnify and hold
harmless the Company, each of its directors, each of
its officers who have signed the registration statement
that includes Warrant Shares, each person, if any, who
controls the Company within the meaning of the Act or
the Exchange Act, and each agent and underwriter for
the Company against any Company Liability (as defined
below) to which the Company or any such director,
officer, Controlling Person, agent or underwriter may
become subject under the Act.
6.2.1 Company Liability. As used in this paragraph
6.2 and subject to paragraph 6.2.2 below, the
term "Company Liability" means any losses,
claims, damages or liabilities with respect to
the registration statement, including any
preliminary or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue statement or
alleged untrue statement of a material fact
contained therein; or (b) the omission or
8
<PAGE>
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 untrue statement or
omission was made in reliance upon, and in
conformity with, written information furnished
by, or on behalf of, the Holder for use in
connection with such registration statement.
6.2.2 Exception to Indemnity. The indemnity
agreement contained in this paragraph 6.2 will
not apply to amounts paid in settlement of any
Company Liability if such settlement is
effected without the consent of the Holder,
which consent will not be unreasonably
withheld. The indemnification obligation of
the Holder will be limited to an amount equal
to the proceeds to the Holder of the Warrant
Shares sold pursuant to the registration
statement.
7. Indemnification Procedure. Upon receipt of notice of the
commencement of any action, a person (an "Indemnified Party")
entitled to indemnification pursuant to paragraph 6 of this Warrant
will notify in writing the indemnifying party if a claim in respect
thereof is to be made against the indemnifying party under
paragraph 6. The failure to notify promptly the indemnifying party
will relieve the indemnifying party from any liability to the
Indemnified Party under paragraph 6.
7.1 Defense by Indemnifying Party. If any action is
brought against an Indemnified Party and the
Indemnified Party notifies the indemnifying party of
the commencement of such action, the indemnifying party
will have the option to assume all or any part of the
defense of such action, either alone or jointly with
any other indemnifying party. If the indemnifying
party assumes all or any part of such defense, the
indemnifying party's counsel will be reasonably
satisfactory to the Indemnified Party. After notice
from the indemnifying party to the Indemnified Party of
its election to assume the defense of such action, the
indemnifying party will not be liable to the
Indemnified Party under paragraph 6 for any legal or
other expenses subsequently incurred by the Indemnified
Party in connection with the defense of such action,
except as provided in paragraph 7.2.
9
<PAGE>
7.2 Expenses; Conflict. The Indemnified Party will have
the right to participate in the defense of, and to
employ separate counsel in, any action in which the
indemnifying party assumes the defense. The fees and
expenses of such counsel will be paid by the
Indemnified Party, except that the indemnifying party
will pay such reasonable fees and expenses of such
counsel if, subject to the limitations contained in
paragraph 7.3 below: (a) the employment of such counsel
has been specifically authorized in writing by the
indemnifying party and the indemnifying party has
agreed, in writing, to pay such fees and expenses, or
(b) an Indemnified Party or parties and the
indemnifying party are the named parties to any such
action (including any impleaded parties) and (i) the
Indemnified Party has been advised by counsel for the
indemnifying party that there are defenses available to
the Indemnified Party that the indemnifying party or
its counsel refuses to accept or (ii) counsel for the
indemnifying party reasonably determines that there may
be a conflict between the position of the indemnifying
party and the Indemnified Party in conducting the
defense of such action. In the event of (b) above,
counsel for the Indemnified Party (at the indemnifying
party's expense) will be entitled to conduct only that
part of the Indemnified Party's or parties' defense
that counsel for the indemnifying party declines to, or
cannot, conduct because of the foregoing reasons.
7.3 Counsel for Indemnifying Parties. The indemnifying
party or parties will not, in connection with any one
such action or separate, but substantially similar or
related actions in the same jurisdiction and 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 all such
Indemnified Party or parties.
8. Representations; Investment Intent; Transferability. By
acceptance of this Warrant, the Holder represents and warrants
that (a) no public distribution of this Warrant or the Warrant
Shares will be made in violation of the provisions of the Act, and
(b) during such period as delivery of a prospectus with respect to
this Warrant or the Warrant Shares may be required by the Act, no
public distribution of this Warrant or the Warrant Shares will be
made in a manner or on terms different from those set forth in, or
without delivery of, a prospectus then meeting the requirements of
Section 10 of the Act and in compliance with all applicable state
securities laws. The Holder further agrees that if any
distribution of this Warrant or any of the Warrant Shares is
proposed to be made otherwise than by delivery of a prospectus
10
<PAGE>
meeting the requirements of Section 10 of the Act, such action will
be taken only after receipt by the Company of an opinion of its
counsel, to the effect that the proposed distribution will not be
in violation of the Act or of applicable state law. Furthermore,
as a condition to the transfer of this Warrant, any transferee of
this Warrant will deliver to the Company the transferee's written
agreement to accept and be bound by all of the terms and conditions
contained in this Warrant.
8.1 Investment Intent; Legend. By acceptance of this
Warrant, the Holder represents and warrants that this
Warrant is being acquired, and all Warrant Shares to be
purchased upon the exercise of this Warrant will be
acquired, by the Holder solely for the account of the
Holder and not with a view to the fractionalization and
distribution thereof, and will not be sold or
transferred except in accordance with the applicable
provisions of the Act and the rules and regulations
promulgated thereunder. The Holder represents and
warrants 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 will 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 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.
8.2 Restriction on Transfer Under the Act. 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
11
<PAGE>
exemption from such registration is available with
respect to any proposed transfer or disposition of the
Warrant or the Warrant Shares. 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.
9. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
10. 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 will
execute and deliver to the Holder a new Warrant of like date, tenor
and denomination.
11. Warrant Holder Not Shareholder. Prior to the exercise of this
Warrant pursuant to the terms hereof, this Warrant will not confer
upon the Holder (a) any right to vote the Warrant Shares or to
consent to or receive notice as a shareholder of the Company with
respect to any matters whatsoever or (b) any other rights or
liabilities as a shareholder.
12. Notices. Except as otherwise specified herein, all notices,
requests, demands and other communications required or desired to
be given hereunder will 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 will 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 will 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 paragraph to:
12
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
If to the Holder: Karl H. Ehlert
C/. Assumpcio, 4
K-07670
Porto Colom (Mallorca)
Spain
13. Headings. The headings of this Warrant are inserted as a
matter of convenience and will not affect the construction or
interpretation hereof.
14. 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.
15. Survival of Representations. All representations and
warranties contained herein will survive the execution of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be affixed hereto
and attested by its Secretary this 25th day of July, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By:_________________________________
Dr. Louis F. Centofanti, President
(the "Company")
_____________________________________
KARL H. EHLERT, an individual
("the Holder")
MBEN\N-P\PESI\WARRANTS\JULY97.1
13
<PAGE>
<PAGE>
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 ____________________________
MBEN\N-P\PESI\WARRANTS\JULY97.1
14
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 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. 7-97-2 175,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, Perma-Fix Environmental Services,
Inc., a Delaware corporation (the "Company") hereby grants to Karl
H. Ehlert, who resides in Porto Colom (Mallorca), Spain, or any
permitted assignee (the "Holder"), the right to purchase at any
time during the period commencing the 25th day of July, 1997, and
ending at 5:00 p.m., Atlanta, Georgia time, on July 24, 2002 (the
"Exercise Period"), up to one hundred seventy-five thousand
(175,000), fully paid and nonassessable shares of the Company's
common stock, $.001 par value ("Common Stock"), subject to
adjustment from time to time as hereinafter provided. The purchase
price for each share of Common Stock to be issued and delivered by
the Company upon the exercise of this warrant is Three and no/100
Dollars ($3.00) per share (the "Warrant Price"), 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 collectively referred to as the
"Warrant." The shares of Common Stock issued upon the exercise of
the Warrant are hereinafter collectively referred to as "Warrant
Shares."
1. Exercise of Warrant. This Warrant may be exercised by the
Holder, in whole or in part from time to time, during the Exercise
Period subject to the prior satisfaction of the provisions set
forth herein. This Warrant may be exercised by the Holder
delivering to the Company this Warrant and the duly executed
subscription in the form set forth at the end hereof, with such
subscription and Warrant being accompanied by the payment to the
Company 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 ("Total Warrant Price").
Payment by the Holder of the Total Warrant Price will 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 must
<PAGE>
be for a whole number of Warrant Shares and the Holder will be
entitled to receive a new Warrant covering the number of Warrant
Shares for which this Warrant has not been exercised. Upon any
exercise and surrender of this Warrant, the Company will (a) 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 has purchased under this Warrant pursuant to the
terms hereof; (b) in lieu of any fractional Warrant Share, deliver
to the Holder cash in an amount equal to the fair value of such
fractional share (calculated in such reasonable manner as the Board
of Directors of the Company shall determine), and (c) 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.
2. Reservation of Warrant Shares. At all times prior to the
expiration of this Warrant the Company will have authorized and
maintain in reserve solely for issuance upon the exercise of the
Warrant the number of shares Common Stock and the amount of other
securities and properties as from time to time are deliverable upon
the exercise of this Warrant. Such authorized and reserved shares
of Common Stock will be free and clear of all restrictions on sale
or transfer (except as otherwise provided by this Warrant 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 Distribution Without Payment Therefor. If at any time
or from time to time after the date of this Warrant,
the Company distributes pro rata to all of the holders
of its then outstanding Common Stock securities or
property, other than cash, without payment therefor,
then in each such case the Holder will be entitled to
receive upon exercise of this Warrant the securities
and property which the Holder would hold on the date of
such exercise if, on the record date for such
distribution, the Holder had exercised this Warrant and
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. Notice of
each such distribution will be mailed promptly to the
Holder.
3.2 Dividend, Division or Combination. If at any time or
from time to time after the date of this Warrant, the
2
<PAGE>
Company (a) pays a dividend on its Common Stock in
shares of Common Stock, (b) subdivides its outstanding
shares of Common Stock into a greater number of shares,
(c) combines its outstanding shares of Common Stock
into a smaller number of shares, or (d) issues 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 will be adjusted so
that, upon exercise of this Warrant, the Holder shall
be entitled to purchase under this Warrant, without
additional consideration, the number of shares of
Common Stock or other capital stock of the Company
which the Holder would have owned or been entitled to
purchase immediately following the happening of any of
the events described above in this paragraph 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 on 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 paragraph 3.2 will become
effective immediately after the record date in the case
of a dividend and will 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 paragraph 3.2, the
Holder becomes 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 will be
conclusive and will be described in a written notice to
the Holder promptly after such adjustment) will
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 Consolidation, Merger or Sale. 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 will have the right thereafter, upon exercise of
3
<PAGE>
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 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. If
necessary, appropriate adjustment will be made in the
application of the provisions of paragraph 3 with
respect to the rights and interests of the Holder so
that the provisions of paragraph 3 following such event
will be correspondingly applicable, as nearly as may
reasonably be, to such securities and other property.
The provisions of this paragraph 3.3 will 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, will be mailed to the Holder 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 will
be deemed a consolidation or merger for the purposes of
this paragraph 3.3.
3.4 Adjustments. The Warrant Price will not be adjusted
unless such adjustment would require an increase or
decrease of at least $0.10. Any adjustments which are
not required to be made pursuant to the foregoing
sentence will be carried forward and taken into account
in any subsequent adjustment. All calculations under
paragraph 3 will be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
Anything in paragraph 3 to the contrary notwith-
standing, the Company will be entitled to make such
reductions in the Warrant Price, in addition to those
required by paragraph 3, as the Company deems to be
advisable so 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 will
not be taxable.
3.5 Certification of Adjustment. Whenever the Warrant
Price is adjusted as provided in paragraph 3 and upon
any modification of the rights of the Holder in
accordance with paragraph 3, the Chief Financial
Officer of the Company will certify promptly the
Warrant Price, the number of Warrant Shares after such
adjustment or modification, a brief statement of the
facts requiring such adjustment or modification and the
4
<PAGE>
manner of computing the same, and will cause such
certificate to be delivered to the Holder.
4. Fully Paid Shares; Taxes. The shares of the Common Stock
represented by each certificate for Warrant Shares delivered upon
the exercise of this Warrant will, at the time of such delivery, be
validly issued and outstanding, fully paid and nonassessable, and
not subject to preemptive rights. 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 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. Piggyback Right. Subject to the terms of this paragraph 5, if
at any time during the Exercise Period the Company proposes to
register shares of Common Stock for public sale in a firm
commitment underwriting for its own account under a Form S-1, Form
S-2 or Form S-3 registration statement filed with the Securities
and Exchange Commission (the "Commission"), the Company will give
the Holder notice of such proposed registration at least twenty
(20) calendar days prior to the filing of a 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 will state the Holder's intent to sell
all of the Warrant Shares then owned by the Holder, the Company
will use its reasonable efforts to register such Warrant Shares
under the same registration statement otherwise being filed by the
Company. The Company will 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 Common Stock
being sold for the account of the Company. All Warrant Shares
registered pursuant to this paragraph 5 must be offered for sale in
the public offering by the same underwriter or underwriters that
are offering the other shares of the 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.
5.1 Shares Includible. The Company will not be required to
include any of the Warrant Shares in any such regis-
tration statement unless the Holder accepts the terms
of the underwriting as agreed upon between the Company
and the managing underwriter or underwriters, and then
only in such quantity as will not, in the opinion of
the managing underwriters, jeopardize the success of
the offering by the Company. If the total amount of
Warrant Shares requested to be included in the regis-
tration statement by the Holder and other shareholders
of the Company that request the inclusion of securities
5
<PAGE>
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 will be required to include only 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. In such event, the Warrant
Shares and other securities of the Company held by the
other Shareholders to be included will 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 Share-
holders so requested to be included in the registration
statement or in such other proportions as mutually
agreed by the Holder and the Other Shareholders. No
reduction will be made with respect to the securities
offered by the Company or any shareholders whose shares
are included in such registration statement other than
pursuant to piggyback registration rights.
5.2 Expiration of Right. The right to participate in a
registration with the Company pursuant to paragraph 5
will be exercisable by the Holder only on one (1)
occasion. The Holder's rights under this paragraph 5
will expire and terminate at the earlier of (a) the
date the Holder receives from counsel for the Company
a written opinion of such counsel that the Holder has
the right, pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act"), to sell
as of the date of such opinion, any portion of the
Warrant Shares then held and/or purchasable upon the
exercise of this Warrant by the Holder or (b) upon a
registration statement being declared effective by the
Commission in which the Company has included at least
fifty percent (50%) of the Warrant Shares within the
coverage of such registration statement.
5.3 Actions by Company. Whenever the Company includes
Warrant Shares in a registration statement, the Company
will (a) furnish the Holder of Warrant Shares included
in such registration statement and each underwriter of
such Warrant Shares the number of copies of a current
prospectus, including the preliminary prospectus,
conforming to the requirements of Section 10 of the Act
(and such other documents as each such Holder or each
such underwriter may reasonably request), as such
Holder(s) and underwriter(s) may reasonably require in
order to effectuate the offer and sale of the Warrant
Shares included in such registration statement; (b) use
6
<PAGE>
its reasonable efforts to register or qualify such
Warrant Shares under the blue sky laws (to the extent
applicable) of such jurisdiction or jurisdictions which
the Company deems appropriate or necessary; provided,
however, that the Company will not be obligated to
register or qualify any Warrant Shares under those
"blue sky" securities laws which the Company deems are
unduly burdensome in connection with such registration
or qualification of Warrant Shares in such state; and
(c) take such other actions as may be reasonably
necessary or advisable to enable such Holder(s) and
such underwriters to consummate the sale or
distribution in such jurisdiction or jurisdictions in
which such Holder(s) reasonably requests that the
Warrant Shares be sold; provided, however, that the
Company will not be required to qualify as a foreign
corporation or broker-dealer in any jurisdiction or to
file a consent to service of process in any
jurisdiction in any action other than one arising out
of the offering or sale of the Warrant Shares.
5.4 Payment of Expenses. The Company will pay all expenses
incurred in connection with any registration of the
offer and sale of the Warrant Shares pursuant to the
provisions paragraph 5 of this Agreement, except the
Holder will pay (a) all underwriting discounts and
concessions, brokerage commissions, applicable
insurance and transfer taxes relating to the sale of
the Warrant Shares, and (b) all fees and expenses
incurred by counsel for the Holder in connection with
such registration.
6. Indemnification. If the Company includes any Warrant Shares
in a registration statement filed by the Company with the
Commission, the Company and the Holder agree as follows:
6.1 By the Company. Except provided in paragraph 6.1.2,
the Company will indemnify and hold harmless the Holder
and each other entity or person, if any, controlling
the Holder (a "Controlling Person") within the meaning
of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), against any Stockholder Liability (as defined
below) to which the Holder or the Controlling Party
becomes subject under the Act.
6.1.1 Stockholder Liability. As used in this
paragraph 6.1 and subject to paragraph 6.1.2
below, the term "Stockholder Liability" means
any losses, claims, damages or liabilities
under the Act with respect to the registration
7
<PAGE>
statement, including any preliminary
prospectus or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue or alleged
untrue statement of material fact contained
therein or (b) 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.
6.1.2 Exception to Indemnity. The indemnity
agreement contained in paragraph 6.1 will not
apply to (a) amounts paid in settlement of any
Stockholder Liability if such settlement is
effected without the consent of the Company,
which consent will not be unreasonably
withheld or (b) any Stockholder Liability to
the extent that the Stockholder Liability
arises out of, or is based upon, any untrue
statement or alleged untrue statement or
omission or alleged omission made in
connection with the registration statement,
preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon, and
in conformity with, written information
furnished to the Company for use in connection
with the registration statement by the Holder
or Controlling Party.
6.2 By the Holder. Except as otherwise provided in
paragraph 6.2.2, the Holder will indemnify and hold
harmless the Company, each of its directors, each of
its officers who have signed the registration statement
that includes Warrant Shares, each person, if any, who
controls the Company within the meaning of the Act or
the Exchange Act, and each agent and underwriter for
the Company against any Company Liability (as defined
below) to which the Company or any such director,
officer, Controlling Person, agent or underwriter may
become subject under the Act.
6.2.1 Company Liability. As used in this paragraph
6.2 and subject to paragraph 6.2.2 below, the
term "Company Liability" means any losses,
claims, damages or liabilities with respect to
the registration statement, including any
preliminary or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue statement or
alleged untrue statement of a material fact
contained therein; or (b) the omission or
8
<PAGE>
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 untrue statement or
omission was made in reliance upon, and in
conformity with, written information furnished
by, or on behalf of, the Holder for use in
connection with such registration statement.
6.2.2 Exception to Indemnity. The indemnity
agreement contained in this paragraph 6.2 will
not apply to amounts paid in settlement of any
Company Liability if such settlement is
effected without the consent of the Holder,
which consent will not be unreasonably
withheld. The indemnification obligation of
the Holder will be limited to an amount equal
to the proceeds to the Holder of the Warrant
Shares sold pursuant to the registration
statement.
7. Indemnification Procedure. Upon receipt of notice of the
commencement of any action, a person (an "Indemnified Party")
entitled to indemnification pursuant to paragraph 6 of this Warrant
will notify in writing the indemnifying party if a claim in respect
thereof is to be made against the indemnifying party under
paragraph 6. The failure to notify promptly the indemnifying party
will relieve the indemnifying party from any liability to the
Indemnified Party under paragraph 6.
7.1 Defense by Indemnifying Party. If any action is
brought against an Indemnified Party and the
Indemnified Party notifies the indemnifying party of
the commencement of such action, the indemnifying party
will have the option to assume all or any part of the
defense of such action, either alone or jointly with
any other indemnifying party. If the indemnifying
party assumes all or any part of such defense, the
indemnifying party's counsel will be reasonably
satisfactory to the Indemnified Party. After notice
from the indemnifying party to the Indemnified Party of
its election to assume the defense of such action, the
indemnifying party will not be liable to the
Indemnified Party under paragraph 6 for any legal or
other expenses subsequently incurred by the Indemnified
Party in connection with the defense of such action,
except as provided in paragraph 7.2.
9
<PAGE>
7.2 Expenses; Conflict. The Indemnified Party will have
the right to participate in the defense of, and to
employ separate counsel in, any action in which the
indemnifying party assumes the defense. The fees and
expenses of such counsel will be paid by the
Indemnified Party, except that the indemnifying party
will pay such reasonable fees and expenses of such
counsel if, subject to the limitations contained in
paragraph 7.3 below: (a) the employment of such counsel
has been specifically authorized in writing by the
indemnifying party and the indemnifying party has
agreed, in writing, to pay such fees and expenses, or
(b) an Indemnified Party or parties and the
indemnifying party are the named parties to any such
action (including any impleaded parties) and (i) the
Indemnified Party has been advised by counsel for the
indemnifying party that there are defenses available to
the Indemnified Party that the indemnifying party or
its counsel refuses to accept or (ii) counsel for the
indemnifying party reasonably determines that there may
be a conflict between the position of the indemnifying
party and the Indemnified Party in conducting the
defense of such action. In the event of (b) above,
counsel for the Indemnified Party (at the indemnifying
party's expense) will be entitled to conduct only that
part of the Indemnified Party's or parties' defense
that counsel for the indemnifying party declines to, or
cannot, conduct because of the foregoing reasons.
7.3 Counsel for Indemnifying Parties. The indemnifying
party or parties will not, in connection with any one
such action or separate, but substantially similar or
related actions in the same jurisdiction and 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 all such
Indemnified Party or parties.
8. Representations; Investment Intent; Transferability. By
acceptance of this Warrant, the Holder represents and warrants
that (a) no public distribution of this Warrant or the Warrant
Shares will be made in violation of the provisions of the Act, and
(b) during such period as delivery of a prospectus with respect to
this Warrant or the Warrant Shares may be required by the Act, no
public distribution of this Warrant or the Warrant Shares will be
made in a manner or on terms different from those set forth in, or
without delivery of, a prospectus then meeting the requirements of
Section 10 of the Act and in compliance with all applicable state
securities laws. The Holder further agrees that if any
distribution of this Warrant or any of the Warrant Shares is
proposed to be made otherwise than by delivery of a prospectus
10
<PAGE>
meeting the requirements of Section 10 of the Act, such action will
be taken only after receipt by the Company of an opinion of its
counsel, to the effect that the proposed distribution will not be
in violation of the Act or of applicable state law. Furthermore,
as a condition to the transfer of this Warrant, any transferee of
this Warrant will deliver to the Company the transferee's written
agreement to accept and be bound by all of the terms and conditions
contained in this Warrant.
8.1 Investment Intent; Legend. By acceptance of this
Warrant, the Holder represents and warrants that this
Warrant is being acquired, and all Warrant Shares to be
purchased upon the exercise of this Warrant will be
acquired, by the Holder solely for the account of the
Holder and not with a view to the fractionalization and
distribution thereof, and will not be sold or
transferred except in accordance with the applicable
provisions of the Act and the rules and regulations
promulgated thereunder. The Holder represents and
warrants 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 will 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 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.
8.2 Restriction on Transfer Under the Act. 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
11
<PAGE>
exemption from such registration is available with
respect to any proposed transfer or disposition of the
Warrant or the Warrant Shares. 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.
9. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
10. 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 will
execute and deliver to the Holder a new Warrant of like date, tenor
and denomination.
11. Warrant Holder Not Shareholder. Prior to the exercise of this
Warrant pursuant to the terms hereof, this Warrant will not confer
upon the Holder (a) any right to vote the Warrant Shares or to
consent to or receive notice as a shareholder of the Company with
respect to any matters whatsoever or (b) any other rights or
liabilities as a shareholder.
12. Notices. Except as otherwise specified herein, all notices,
requests, demands and other communications required or desired to
be given hereunder will 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 will 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 will 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 paragraph to:
12
<PAGE>
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
If to the Holder: Karl H. Ehlert
C/. Assumpcio, 4
K-07670
Porto Colom (Mallorca)
Spain
13. Headings. The headings of this Warrant are inserted as a
matter of convenience and will not affect the construction or
interpretation hereof.
14. 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.
15. Survival of Representations. All representations and
warranties contained herein will survive the execution of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be affixed hereto
and attested by its Secretary this 25th day of July, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By:_________________________________
Dr. Louis F. Centofanti, President
(the "Company")
_____________________________________
KARL H. EHLERT, an individual
("the Holder")
MBEN\N-P\PESI\WARRANTS\JULY97.2
13
<PAGE>
<PAGE>
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 ____________________________
MBEN\N-P\PESI\WARRANTS\JULY97.2
14
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 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.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON PARAGRAPH
(13) OF THE CODE SECTION 10-5-9 OF THE GEORGIA SECURITIES ACT OF
1973, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT.
No. 7-97-3 75,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, Perma-Fix Environmental Services,
Inc., a Delaware corporation (the "Company") hereby grants to Keith
Fetter at 3131 Piedmont Road, Suite 205, Atlanta, Georgia 30305, or
any permitted assignee (the "Holder"), the right to purchase at any
time during the period commencing the 25th day of July, 1997, and
ending at 5:00 p.m., Atlanta, Georgia time, on July 24, 2000 (the
"Exercise Period"), up to seventy-five thousand (75,000), fully
paid and nonassessable shares of the Company's common stock, $.001
par value ("Common Stock"), subject to adjustment from time to time
as hereinafter provided. The purchase price for each share of
Common Stock to be issued and delivered by the Company upon the
exercise of this warrant is Two and no/100 Dollars ($2.00) per
share (the "Warrant Price"), 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 collectively referred to as the "Warrant." The shares
of Common Stock issued upon the exercise of the Warrant are
hereinafter collectively referred to as "Warrant Shares."
1. Exercise of Warrant. This Warrant may be exercised by the
Holder, in whole or in part from time to time, during the Exercise
Period subject to the prior satisfaction of the provisions set
forth herein. This Warrant may be exercised by the Holder
delivering to the Company this Warrant and the duly executed
subscription in the form set forth at the end hereof, with such
subscription and Warrant being accompanied by the payment to the
Company of an amount equal to the Warrant Price in effect at the
<PAGE>
date of such exercise multiplied by the total number of Warrant
Shares to be purchased upon such exercise ("Total Warrant Price").
Payment by the Holder of the Total Warrant Price will 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 must
be for a whole number of Warrant Shares and the Holder will be
entitled to receive a new Warrant covering the number of Warrant
Shares for which this Warrant has not been exercised. Upon any
exercise and surrender of this Warrant, the Company will (a) 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 has purchased under this Warrant pursuant to the
terms hereof; (b) in lieu of any fractional Warrant Share, deliver
to the Holder cash in an amount equal to the fair value of such
fractional share (calculated in such reasonable manner as the Board
of Directors of the Company shall determine), and (c) 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.
2. Reservation of Warrant Shares. At all times prior to the
expiration of this Warrant the Company will have authorized and
maintain in reserve solely for issuance upon the exercise of the
Warrant the number of shares Common Stock and the amount of other
securities and properties as from time to time are deliverable upon
the exercise of this Warrant. Such authorized and reserved shares
of Common Stock will be free and clear of all restrictions on sale
or transfer (except as otherwise provided by this Warrant 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 Distribution Without Payment Therefor. If at any time
or from time to time after the date of this Warrant,
the Company distributes pro rata to all of the holders
of its then outstanding Common Stock securities or
property, other than cash, without payment therefor,
then in each such case the Holder will be entitled to
receive upon exercise of this Warrant the securities
and property which the Holder would hold on the date of
such exercise if, on the record date for such
distribution, the Holder had exercised this Warrant and
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. Notice of
2
<PAGE>
each such distribution will be mailed promptly to the
Holder.
3.2 Dividend, Division or Combination. If at any time or
from time to time after the date of this Warrant, the
Company (a) pays a dividend on its Common Stock in
shares of Common Stock, (b) subdivides its outstanding
shares of Common Stock into a greater number of shares,
(c) combines its outstanding shares of Common Stock
into a smaller number of shares, or (d) issues 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 will be adjusted so
that, upon exercise of this Warrant, the Holder shall
be entitled to purchase under this Warrant, without
additional consideration, the number of shares of
Common Stock or other capital stock of the Company
which the Holder would have owned or been entitled to
purchase immediately following the happening of any of
the events described above in this paragraph 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 on 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 paragraph 3.2 will become
effective immediately after the record date in the case
of a dividend and will 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 paragraph 3.2, the
Holder becomes 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 will be
conclusive and will be described in a written notice to
the Holder promptly after such adjustment) will
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 Consolidation, Merger or Sale. 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 will 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 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. If
necessary, appropriate adjustment will be made in the
application of the provisions of paragraph 3 with
respect to the rights and interests of the Holder so
that the provisions of paragraph 3 following such event
will be correspondingly applicable, as nearly as may
reasonably be, to such securities and other property.
The provisions of this paragraph 3.3 will 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, will be mailed to the Holder 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 will
be deemed a consolidation or merger for the purposes of
this paragraph 3.3.
3.4 Adjustments. The Warrant Price will not be adjusted
unless such adjustment would require an increase or
decrease of at least $0.10. Any adjustments which are
not required to be made pursuant to the foregoing
sentence will be carried forward and taken into account
in any subsequent adjustment. All calculations under
paragraph 3 will be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be.
Anything in paragraph 3 to the contrary notwith-
standing, the Company will be entitled to make such
reductions in the Warrant Price, in addition to those
required by paragraph 3, as the Company deems to be
advisable so 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 will
not be taxable.
3.5 Certification of Adjustment. Whenever the Warrant
Price is adjusted as provided in paragraph 3 and upon
any modification of the rights of the Holder in
accordance with paragraph 3, the Chief Financial
4
<PAGE>
Officer of the Company will certify promptly the
Warrant Price, 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 will cause such
certificate to be delivered to the Holder.
4. Fully Paid Shares; Taxes. The shares of the Common Stock
represented by each certificate for Warrant Shares delivered upon
the exercise of this Warrant will, at the time of such delivery, be
validly issued and outstanding, fully paid and nonassessable, and
not subject to preemptive rights. 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 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. Piggyback Right. Subject to the terms of this paragraph 5, if
at any time during the Exercise Period the Company proposes to
register shares of Common Stock for public sale in a firm
commitment underwriting for its own account under a Form S-1, Form
S-2 or Form S-3 registration statement filed with the Securities
and Exchange Commission (the "Commission"), the Company will give
the Holder notice of such proposed registration at least twenty
(20) calendar days prior to the filing of a 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 will state the Holder's intent to sell
all of the Warrant Shares then owned by the Holder, the Company
will use its reasonable efforts to register such Warrant Shares
under the same registration statement otherwise being filed by the
Company. The Company will 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 Common Stock
being sold for the account of the Company. All Warrant Shares
registered pursuant to this paragraph 5 must be offered for sale in
the public offering by the same underwriter or underwriters that
are offering the other shares of the 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.
5.1 Shares Includible. The Company will not be required to
include any of the Warrant Shares in any such regis-
tration statement unless the Holder accepts the terms
of the underwriting as agreed upon between the Company
and the managing underwriter or underwriters, and then
only in such quantity as will not, in the opinion of
the managing underwriters, jeopardize the success of
5
<PAGE>
the offering by the Company. If the total amount of
Warrant Shares requested to be included in the regis-
tration statement 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 will be required to include only 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. In such event, the Warrant
Shares and other securities of the Company held by the
other Shareholders to be included will 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 Share-
holders so requested to be included in the registration
statement or in such other proportions as mutually
agreed by the Holder and the Other Shareholders. No
reduction will be made with respect to the securities
offered by the Company or any shareholders whose shares
are included in such registration statement other than
pursuant to piggyback registration rights.
5.2 Expiration of Right. The right to participate in a
registration with the Company pursuant to paragraph 5
will be exercisable by the Holder only on one (1)
occasion. The Holder's rights under this paragraph 5
will expire and terminate at the earlier of (a) the
date the Holder receives from counsel for the Company
a written opinion of such counsel that the Holder has
the right, pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended (the "Act"), to sell
as of the date of such opinion, any portion of the
Warrant Shares then held and/or purchasable upon the
exercise of this Warrant by the Holder or (b) upon a
registration statement being declared effective by the
Commission in which the Company has included at least
fifty percent (50%) of the Warrant Shares within the
coverage of such registration statement.
5.3 Actions by Company. Whenever the Company includes
Warrant Shares in a registration statement, the Company
will (a) furnish the Holder of Warrant Shares included
in such registration statement and each underwriter of
such Warrant Shares the number of copies of a current
prospectus, including the preliminary prospectus,
conforming to the requirements of Section 10 of the Act
(and such other documents as each such Holder or each
6
<PAGE>
such underwriter may reasonably request), as such
Holder(s) and underwriter(s) may reasonably require in
order to effectuate the offer and sale of the Warrant
Shares included in such registration statement; (b) use
its reasonable efforts to register or qualify such
Warrant Shares under the blue sky laws (to the extent
applicable) of such jurisdiction or jurisdictions which
the Company deems appropriate or necessary; provided,
however, that the Company will not be obligated to
register or qualify any Warrant Shares under those
"blue sky" securities laws which the Company deems are
unduly burdensome in connection with such registration
or qualification of Warrant Shares in such state; and
(c) take such other actions as may be reasonably
necessary or advisable to enable such Holder(s) and
such underwriters to consummate the sale or
distribution in such jurisdiction or jurisdictions in
which such Holder(s) reasonably requests that the
Warrant Shares be sold; provided, however, that the
Company will not be required to qualify as a foreign
corporation or broker-dealer in any jurisdiction or to
file a consent to service of process in any
jurisdiction in any action other than one arising out
of the offering or sale of the Warrant Shares.
5.4 Payment of Expenses. The Company will pay all expenses
incurred in connection with any registration of the
offer and sale of the Warrant Shares pursuant to the
provisions paragraph 5 of this Agreement, except the
Holder will pay (a) all underwriting discounts and
concessions, brokerage commissions, applicable
insurance and transfer taxes relating to the sale of
the Warrant Shares, and (b) all fees and expenses
incurred by counsel for the Holder in connection with
such registration.
6. Indemnification. If the Company includes any Warrant Shares
in a registration statement filed by the Company with the
Commission, the Company and the Holder agree as follows:
6.1 By the Company. Except provided in paragraph 6.1.2,
the Company will indemnify and hold harmless the Holder
and each other entity or person, if any, controlling
the Holder (a "Controlling Person") within the meaning
of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), against any Stockholder Liability (as defined
below) to which the Holder or the Controlling Party
becomes subject under the Act.
7
<PAGE>
6.1.1 Stockholder Liability. As used in this
paragraph 6.1 and subject to paragraph 6.1.2
below, the term "Stockholder Liability" means
any losses, claims, damages or liabilities
under the Act with respect to the registration
statement, including any preliminary
prospectus or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue or alleged
untrue statement of material fact contained
therein or (b) 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.
6.1.2 Exception to Indemnity. The indemnity
agreement contained in paragraph 6.1 will not
apply to (a) amounts paid in settlement of any
Stockholder Liability if such settlement is
effected without the consent of the Company,
which consent will not be unreasonably
withheld or (b) any Stockholder Liability to
the extent that the Stockholder Liability
arises out of, or is based upon, any untrue
statement or alleged untrue statement or
omission or alleged omission made in
connection with the registration statement,
preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon, and
in conformity with, written information
furnished to the Company for use in connection
with the registration statement by the Holder
or Controlling Party.
6.2 By the Holder. Except as otherwise provided in
paragraph 6.2.2, the Holder will indemnify and hold
harmless the Company, each of its directors, each of
its officers who have signed the registration statement
that includes Warrant Shares, each person, if any, who
controls the Company within the meaning of the Act or
the Exchange Act, and each agent and underwriter for
the Company against any Company Liability (as defined
below) to which the Company or any such director,
officer, Controlling Person, agent or underwriter may
become subject under the Act.
6.2.1 Company Liability. As used in this paragraph
6.2 and subject to paragraph 6.2.2 below, the
term "Company Liability" means any losses,
claims, damages or liabilities with respect to
the registration statement, including any
8
<PAGE>
preliminary or final prospectus and any
amendments or supplements thereto, arising out
of or based upon (a) any untrue statement or
alleged untrue statement of a material fact
contained therein; or (b) 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 untrue statement or
omission was made in reliance upon, and in
conformity with, written information furnished
by, or on behalf of, the Holder for use in
connection with such registration statement.
6.2.2 Exception to Indemnity. The indemnity
agreement contained in this paragraph 6.2 will
not apply to amounts paid in settlement of any
Company Liability if such settlement is
effected without the consent of the Holder,
which consent will not be unreasonably
withheld. The indemnification obligation of
the Holder will be limited to an amount equal
to the proceeds to the Holder of the Warrant
Shares sold pursuant to the registration
statement.
7. Indemnification Procedure. Upon receipt of notice of the
commencement of any action, a person (an "Indemnified Party")
entitled to indemnification pursuant to paragraph 6 of this Warrant
will notify in writing the indemnifying party if a claim in respect
thereof is to be made against the indemnifying party under
paragraph 6. The failure to notify promptly the indemnifying party
will relieve the indemnifying party from any liability to the
Indemnified Party under paragraph 6.
7.1 Defense by Indemnifying Party. If any action is
brought against an Indemnified Party and the
Indemnified Party notifies the indemnifying party of
the commencement of such action, the indemnifying party
will have the option to assume all or any part of the
defense of such action, either alone or jointly with
any other indemnifying party. If the indemnifying
party assumes all or any part of such defense, the
indemnifying party's counsel will be reasonably
satisfactory to the Indemnified Party. After notice
from the indemnifying party to the Indemnified Party of
its election to assume the defense of such action, the
indemnifying party will not be liable to the
Indemnified Party under paragraph 6 for any legal or
9
<PAGE>
other expenses subsequently incurred by the Indemnified
Party in connection with the defense of such action,
except as provided in paragraph 7.2.
7.2 Expenses; Conflict. The Indemnified Party will have
the right to participate in the defense of, and to
employ separate counsel in, any action in which the
indemnifying party assumes the defense. The fees and
expenses of such counsel will be paid by the
Indemnified Party, except that the indemnifying party
will pay such reasonable fees and expenses of such
counsel if, subject to the limitations contained in
paragraph 7.3 below: (a) the employment of such counsel
has been specifically authorized in writing by the
indemnifying party and the indemnifying party has
agreed, in writing, to pay such fees and expenses, or
(b) an Indemnified Party or parties and the
indemnifying party are the named parties to any such
action (including any impleaded parties) and (i) the
Indemnified Party has been advised by counsel for the
indemnifying party that there are defenses available to
the Indemnified Party that the indemnifying party or
its counsel refuses to accept or (ii) counsel for the
indemnifying party reasonably determines that there may
be a conflict between the position of the indemnifying
party and the Indemnified Party in conducting the
defense of such action. In the event of (b) above,
counsel for the Indemnified Party (at the indemnifying
party's expense) will be entitled to conduct only that
part of the Indemnified Party's or parties' defense
that counsel for the indemnifying party declines to, or
cannot, conduct because of the foregoing reasons.
7.3 Counsel for Indemnifying Parties. The indemnifying
party or parties will not, in connection with any one
such action or separate, but substantially similar or
related actions in the same jurisdiction and 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 all such
Indemnified Party or parties.
8. Representations; Investment Intent; Transferability. By
acceptance of this Warrant, the Holder represents and warrants
that (a) no public distribution of this Warrant or the Warrant
Shares will be made in violation of the provisions of the Act, and
(b) during such period as delivery of a prospectus with respect to
this Warrant or the Warrant Shares may be required by the Act, no
public distribution of this Warrant or the Warrant Shares will be
made in a manner or on terms different from those set forth in, or
without delivery of, a prospectus then meeting the requirements of
10
<PAGE>
Section 10 of the Act and in compliance with all applicable state
securities laws. The Holder further agrees that if any
distribution of this Warrant or any of the Warrant Shares is
proposed to be made otherwise than by delivery of a prospectus
meeting the requirements of Section 10 of the Act, such action will
be taken only after receipt by the Company of an opinion of its
counsel, to the effect that the proposed distribution will not be
in violation of the Act or of applicable state law. Furthermore,
as a condition to the transfer of this Warrant, any transferee of
this Warrant will deliver to the Company the transferee's written
agreement to accept and be bound by all of the terms and conditions
contained in this Warrant.
8.1 Investment Intent; Legend. By acceptance of this
Warrant, the Holder represents and warrants that this
Warrant is being acquired, and all Warrant Shares to be
purchased upon the exercise of this Warrant will be
acquired, by the Holder solely for the account of the
Holder and not with a view to the fractionalization and
distribution thereof, and will not be sold or
transferred except in accordance with the applicable
provisions of the Act and the rules and regulations
promulgated thereunder. The Holder represents and
warrants 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 will 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 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.
11
<PAGE>
8.2 Restriction on Transfer Under the Act. 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. 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.
9. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
10. 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 will
execute and deliver to the Holder a new Warrant of like date, tenor
and denomination.
11. Warrant Holder Not Shareholder. Prior to the exercise of this
Warrant pursuant to the terms hereof, this Warrant will not confer
upon the Holder (a) any right to vote the Warrant Shares or to
consent to or receive notice as a shareholder of the Company with
respect to any matters whatsoever or (b) any other rights or
liabilities as a shareholder.
12. Notices. Except as otherwise specified herein, all notices,
requests, demands and other communications required or desired to
be given hereunder will 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 will 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
12
<PAGE>
registered mail, postage prepaid, return receipt requested, and all
such notices will 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 paragraph to:
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
If to the Holder: Keith Fetter
Piedmont Consulting, Inc.
3131 Piedmont Road, Suite 205
Atlanta, Georgia 30305
13. Headings. The headings of this Warrant are inserted as a
matter of convenience and will not affect the construction or
interpretation hereof.
14. 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.
15. Survival of Representations. All representations and
warranties contained herein will survive the execution of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be affixed hereto
and attested by its Secretary this 25th day of July, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By_________________________________
Dr. Louis F. Centofanti, President
(the "Company")
_____________________________________
KEITH FETTER, an individual
("the Holder")
MBEN\N-P\PESI\WARRANTS\JULY97.3
13
<PAGE>
<PAGE>
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 ____________________________
MBEN\N-P\PESI\WARRANTS\JULY97.3
14
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 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.
THESE SECURITIES HAVE BEEN ISSUED OR SOLD IN RELIANCE ON
PARAGRAPH (13) OF THE CODE SECTION 10-5-9 OF THE GEORGIA
SECURITIES ACT OF 1973, AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT
IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT.
No. 7-97-4 75,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, Perma-Fix Environmental Services,
Inc., a Delaware corporation (the "Company") hereby grants to
Keith Fetter at 3131 Piedmont Road, Suite 205, Atlanta, Georgia
30305, or any permitted assignee (the "Holder"), the right to
purchase at any time during the period commencing the 25th day of
July, 1997, and ending at 5:00 p.m., Atlanta, Georgia time, on
July 24, 2000 (the "Exercise Period"), up to seventy-five
thousand (75,000), fully paid and nonassessable shares of the
Company's common stock, $.001 par value ("Common Stock"), subject
to adjustment from time to time as hereinafter provided. The
purchase price for each share of Common Stock to be issued and
delivered by the Company upon the exercise of this warrant is Two
and 50/100 Dollars ($2.50) per share (the "Warrant Price"),
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 collectively
referred to as the "Warrant." The shares of Common Stock issued
upon the exercise of the Warrant are hereinafter collectively
referred to as "Warrant Shares."
1. Exercise of Warrant. This Warrant may be exercised by
the Holder, in whole or in part from time to time, during
the Exercise Period subject to the prior satisfaction of the
provisions set forth herein. This Warrant may be exercised
by the Holder delivering to the Company this Warrant and the
<PAGE>
duly executed subscription in the form set forth at the end
hereof, with such subscription and Warrant being accompanied
by the payment to the Company 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 pur-
chased upon such exercise ("Total Warrant Price"). Payment
by the Holder of the Total Warrant Price will 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 must be for a whole number of Warrant Shares and
the Holder will be entitled to receive a new Warrant
covering the number of Warrant Shares for which this Warrant
has not been exercised. Upon any exercise and surrender of
this Warrant, the Company will (a) 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 has purchased under this Warrant pursuant
to the terms hereof; (b) in lieu of any fractional Warrant
Share, deliver to the Holder cash in an amount equal to the
fair value of such fractional share (calculated in such
reasonable manner as the Board of Directors of the Company
shall determine), and (c) 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.
2. Reservation of Warrant Shares. At all times prior to
the expiration of this Warrant the Company will have
authorized and maintain in reserve solely for issuance upon
the exercise of the Warrant the number of shares Common
Stock and the amount of other securities and properties as
from time to time are deliverable upon the exercise of this
Warrant. Such authorized and reserved shares of Common
Stock will be free and clear of all restrictions on sale or
transfer (except as otherwise provided by this Warrant 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 Distribution Without Payment Therefor. If at any
time or from time to time after the date of this
Warrant, the Company distributes pro rata to all
of the holders of its then outstanding Common
Stock securities or property, other than cash,
without payment therefor, then in each such case
the Holder will be entitled to receive upon
exercise of this Warrant the securities and
property which the Holder would hold on the date
of such exercise if, on the record date for such
distribution, the Holder had exercised this
Warrant and 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
-2-
<PAGE>
securities and properties receivable by the Holder
during such period. Notice of each such
distribution will be mailed promptly to the
Holder.
3.2 Dividend, Division or Combination. If at any time
or from time to time after the date of this
Warrant, the Company (a) pays a dividend on its
Common Stock in shares of Common Stock, (b)
subdivides its outstanding shares of Common Stock
into a greater number of shares, (c) combines its
outstanding shares of Common Stock into a smaller
number of shares, or (d) issues 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 will be
adjusted so that, upon exercise of this Warrant,
the Holder shall be entitled to purchase under
this Warrant, without additional consideration,
the number of shares of Common Stock or other
capital stock of the Company which the Holder
would have owned or been entitled to purchase
immediately following the happening of any of the
events described above in this paragraph 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 on
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 paragraph 3.2
will become effective immediately after the record
date in the case of a dividend and will 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 paragraph 3.2, the Holder
becomes 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 will be conclusive and will be
described in a written notice to the Holder
promptly after such adjustment) will 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
<PAGE>
3.2 Consolidation, Merger or Sale. 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 will 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. If necessary, appropriate
adjustment will be made in the application of the
provisions of paragraph 3 with respect to the
rights and interests of the Holder so that the
provisions of paragraph 3 following such event
will be correspondingly applicable, as nearly as
may reasonably be, to such securities and other
property. The provisions of this paragraph 3.3
will 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, will be
mailed to the Holder 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
will be deemed a consolidation or merger for the
purposes of this paragraph 3.3.
3.4 Adjustments. The Warrant Price will not be
adjusted unless such adjustment would require an
increase or decrease of at least $0.10. Any
adjustments which are not required to be made
pursuant to the foregoing sentence will be carried
forward and taken into account in any subsequent
adjustment. All calculations under paragraph 3
will be made to the nearest cent or to the nearest
1/100th of a share, as the case may be. Anything
in paragraph 3 to the contrary notwithstanding,
the Company will be entitled to make such
reductions in the Warrant Price, in addition to
those required by paragraph 3, as the Company
deems to be advisable so 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 will not be taxable.
3.5 Certification of Adjustment. Whenever the Warrant
Price is adjusted as provided in paragraph 3 and
4
<PAGE>
upon any modification of the rights of the Holder
in accordance with paragraph 3, the Chief
Financial Officer of the Company will certify
promptly the Warrant Price, 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 will cause such
certificate to be delivered to the Holder.
4. Fully Paid Shares; Taxes. The shares of the Common
Stock represented by each certificate for Warrant Shares
delivered upon the exercise of this Warrant will, at the
time of such delivery, be validly issued and outstanding,
fully paid and nonassessable, and not subject to preemptive
rights. 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 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. Piggyback Right. Subject to the terms of this
paragraph 5, if at any time during the Exercise Period the
Company proposes to register shares of Common Stock for
public sale in a firm commitment underwriting for its own
account under a Form S-1, Form S-2 or Form S-3 registration
statement filed with the Securities and Exchange Commission
(the "Commission"), the Company will give the Holder notice
of such proposed registration at least twenty (20) calendar
days prior to the filing of a 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 will state the
Holder's intent to sell all of the Warrant Shares then owned
by the Holder, the Company will use its reasonable efforts
to register such Warrant Shares under the same registration
statement otherwise being filed by the Company. The Company
will 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 Common Stock
being sold for the account of the Company. All Warrant
Shares registered pursuant to this paragraph 5 must be
offered for sale in the public offering by the same under-
writer or underwriters that are offering the other shares of
the 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.
5.1 Shares Includible. The Company will not be
required to include any of the Warrant Shares in
any such registration statement unless the Holder
accepts the terms of the underwriting as agreed
5
<PAGE>
upon between the Company and the managing under-
writer or underwriters, and then only in such
quantity as will not, in the opinion of the man-
aging underwriters, jeopardize the success of the
offering by the Company. If the total amount of
Warrant Shares requested to be included in the
registration statement 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 will be
required to include only 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. In such event, the
Warrant Shares and other securities of the Company
held by the other Shareholders to be included will
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 mutually agreed by the Holder
and the Other Shareholders. No reduction will be
made with respect to the securities offered by the
Company or any shareholders whose shares are
included in such registration statement other than
pursuant to piggyback registration rights.
5.2 Expiration of Right. The right to participate in
a registration with the Company pursuant to
paragraph 5 will be exercisable by the Holder only
on one (1) occasion. The Holder's rights under
this paragraph 5 will expire and terminate at the
earlier of (a) the date the Holder receives from
counsel for the Company a written opinion of such
counsel that the Holder has the right, pursuant to
Rule 144 promulgated under the Securities Act of
1933, as amended (the "Act"), to sell as of the
date of such opinion, any portion of the Warrant
Shares then held and/or purchasable upon the
exercise of this Warrant by the Holder or (b) upon
a registration statement being declared effective
by the Commission in which the Company has
included at least fifty percent (50%) of the
Warrant Shares within the coverage of such
registration statement.
5.3 Actions by Company. Whenever the Company includes
Warrant Shares in a registration statement, the
Company will (a) furnish the Holder of Warrant
Shares included in such registration statement and
each underwriter of such Warrant Shares the number
of copies of a current prospectus, including the
6
<PAGE>
preliminary prospectus, conforming to the
requirements of Section 10 of the Act (and such
other documents as each such Holder or each such
underwriter may reasonably request), as such
Holder(s) and underwriter(s) may reasonably
require in order to effectuate the offer and sale
of the Warrant Shares included in such
registration statement; (b) use its reasonable
efforts to register or qualify such Warrant Shares
under the blue sky laws (to the extent applicable)
of such jurisdiction or jurisdictions which the
Company deems appropriate or necessary; provided,
however, that the Company will not be obligated to
register or qualify any Warrant Shares under those
"blue sky" securities laws which the Company deems
are unduly burdensome in connection with such
registration or qualification of Warrant Shares in
such state; and (c) take such other actions as may
be reasonably necessary or advisable to enable
such Holder(s) and such underwriters to consummate
the sale or distribution in such jurisdiction or
jurisdictions in which such Holder(s) reasonably
requests that the Warrant Shares be sold;
provided, however, that the Company will not be
required to qualify as a foreign corporation or
broker-dealer in any jurisdiction or to file a
consent to service of process in any jurisdiction
in any action other than one arising out of the
offering or sale of the Warrant Shares.
5.4 Payment of Expenses. The Company will pay all
expenses incurred in connection with any
registration of the offer and sale of the Warrant
Shares pursuant to the provisions paragraph 5 of
this Agreement, except the Holder will pay (a) all
underwriting discounts and concessions, brokerage
commissions, applicable insurance and transfer
taxes relating to the sale of the Warrant Shares,
and (b) all fees and expenses incurred by counsel
for the Holder in connection with such
registration.
6. Indemnification. If the Company includes any Warrant
Shares in a registration statement filed by the Company with
the Commission, the Company and the Holder agree as follows:
6.1 By the Company. Except provided in paragraph
6.1.2, the Company will indemnify and hold
harmless the Holder and each other entity or
person, if any, controlling the Holder (a
"Controlling Person") within the meaning of either
Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended
("Exchange Act"), against any Stockholder
Liability (as defined below) to which the Holder
or the Controlling Party becomes subject under the
Act.
i. Stockholder Liability. As used in this
paragraph 6.1 and subject to paragraph 6.1.2
below, the term "Stockholder Liability" means
any losses, claims, damages or liabilities
under the Act with respect to the
registration statement, including any
preliminary prospectus or final prospectus
and any amendments or supplements thereto,
arising out of or based upon (a) any untrue
or alleged untrue statement of material fact
contained therein or (b) 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.
ii. Exception to Indemnity. The indemnity
agreement contained in paragraph 6.1 will not
apply to (a) amounts paid in settlement of
any Stockholder Liability if such settlement
is effected without the consent of the
Company, which consent will not be
unreasonably withheld or (b) any Stockholder
Liability to the extent that the Stockholder
Liability arises out of, or is based upon,
any untrue statement or alleged untrue
statement or omission or alleged omission
made in connection with the registration
statement, preliminary or final prospectus,
or amendments or supplements thereto, in
reliance upon, and in conformity with,
written information furnished to the Company
for use in connection with the registration
statement by the Holder or Controlling Party.
b. By the Holder. Except as otherwise provided in
paragraph 6.2.2, the Holder will indemnify and
hold harmless the Company, each of its directors,
each of its officers who have signed the
registration statement that includes Warrant
Shares, each person, if any, who controls the
Company within the meaning of the Act or the
Exchange Act, and each agent and underwriter for
the Company against any Company Liability (as
defined below) to which the Company or any such
director, officer, Controlling Person, agent or
underwriter may become subject under the Act.
i. Company Liability. As used in this paragraph
6.2 and subject to paragraph 6.2.2 below, the
term "Company Liability" means any losses,
claims, damages or liabilities with respect
to the registration statement, including any
preliminary or final prospectus and any
amendments or supplements thereto, arising
out of or based upon (a) any untrue statement
or alleged untrue statement of a material
fact contained therein; or (b) 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 untrue
statement or omission was made in reliance
upon, and in conformity with, written
information furnished by, or on behalf of,
the Holder for use in connection with such
registration statement.
ii. Exception to Indemnity. The indemnity
agreement contained in this paragraph 6.2
will not apply to amounts paid in settlement
of any Company Liability if such settlement
is effected without the consent of the
Holder, which consent will not be
unreasonably withheld. The indemnification
obligation of the Holder will be limited to
an amount equal to the proceeds to the Holder
of the Warrant Shares sold pursuant to the
registration statement.
7. Indemnification Procedure. Upon receipt of notice of
the commencement of any action, a person (an "Indemnified
Party") entitled to indemnification pursuant to paragraph 6
of this Warrant will notify in writing the indemnifying
party if a claim in respect thereof is to be made against
the indemnifying party under paragraph 6. The failure to
notify promptly the indemnifying party will relieve the
indemnifying party from any liability to the Indemnified
Party under paragraph 6.
a. Defense by Indemnifying Party. If any action is
brought against an Indemnified Party and the
Indemnified Party notifies the indemnifying party
of the commencement of such action, the
indemnifying party will have the option to assume
all or any part of the defense of such action,
either alone or jointly with any other
indemnifying party. If the indemnifying party
assumes all or any part of such defense, the
indemnifying party's counsel will be reasonably
satisfactory to the Indemnified Party. After
notice from the indemnifying party to the
Indemnified Party of its election to assume the
defense of such action, the indemnifying party
will not be liable to the Indemnified Party under
paragraph 6 for any legal or other expenses
subsequently incurred by the Indemnified Party in
connection with the defense of such action, except
as provided in paragraph 7.2.
b. Expenses; Conflict. The Indemnified Party will
have the right to participate in the defense of,
and to employ separate counsel in, any action in
which the indemnifying party assumes the defense.
The fees and expenses of such counsel will be paid
by the Indemnified Party, except that the
indemnifying party will pay such reasonable fees
and expenses of such counsel if, subject to the
limitations contained in paragraph 7.3 below: (a)
the employment of such counsel has been
specifically authorized in writing by the
indemnifying party and the indemnifying party has
agreed, in writing, to pay such fees and expenses,
or (b) an Indemnified Party or parties and the
indemnifying party are the named parties to any
such action (including any impleaded parties) and
(i) the Indemnified Party has been advised by
counsel for the indemnifying party that there are
defenses available to the Indemnified Party that
the indemnifying party or its counsel refuses to
accept or (ii) counsel for the indemnifying party
reasonably determines that there may be a conflict
between the position of the indemnifying party and
the Indemnified Party in conducting the defense of
such action. In the event of (b) above, counsel
for the Indemnified Party (at the indemnifying
party's expense) will be entitled to conduct only
that part of the Indemnified Party's or parties'
defense that counsel for the indemnifying party
declines to, or cannot, conduct because of the
foregoing reasons.
c. Counsel for Indemnifying Parties. The
indemnifying party or parties will not, in
connection with any one such action or separate,
but substantially similar or related actions in
the same jurisdiction and 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 all such
Indemnified Party or parties.
8. Representations; Investment Intent; Transferability.
By acceptance of this Warrant, the Holder represents and
warrants that (a) no public distribution of this Warrant or
the Warrant Shares will be made in violation of the
provisions of the Act, and (b) during such period as
delivery of a prospectus with respect to this Warrant or the
Warrant Shares may be required by the Act, no public
distribution of this Warrant or the Warrant Shares will be
made in a manner or on terms different from those set forth
in, or without delivery of, a prospectus then meeting the
requirements of Section 10 of the Act and in compliance with
all applicable state securities laws. The Holder further
agrees that if any distribution of this Warrant or any of
the Warrant Shares is proposed to be made otherwise than by
delivery of a prospectus meeting the requirements of Section
10 of the Act, such action will be taken only after receipt
by the Company of an opinion of its counsel, to the effect
that the proposed distribution will not be in violation of
the Act or of applicable state law. Furthermore, as a
condition to the transfer of this Warrant, any transferee of
this Warrant will deliver to the Company the transferee's
written agreement to accept and be bound by all of the terms
and conditions contained in this Warrant.
a. Investment Intent; Legend. By acceptance of this
Warrant, the Holder represents and warrants that
this Warrant is being acquired, and all Warrant
Shares to be purchased upon the exercise of this
Warrant will be acquired, by the Holder solely for
the account of the Holder and not with a view to
the fractionalization and distribution thereof,
and will not be sold or transferred except in
accordance with the applicable provisions of the
Act and the rules and regulations promulgated
thereunder. The Holder represents and warrants
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 will 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 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.
b. Restriction on Transfer Under the Act. 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. 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.
9. Nasdaq; Boston Stock Exchange. Notwithstanding
anything herein to the contrary, this Warrant may not be
exercised by the Holder 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
reasonable efforts to list the Warrant Shares with the
Nasdaq and the Exchange.
10. 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 will execute and
deliver to the Holder a new Warrant of like date, tenor and
denomination.
11. Warrant Holder Not Shareholder. Prior to the exercise
of this Warrant pursuant to the terms hereof, this Warrant
will not confer upon the Holder (a) any right to vote the
Warrant Shares or to consent to or receive notice as a
shareholder of the Company with respect to any matters
whatsoever or (b) any other rights or liabilities as a
shareholder.
12. Notices. Except as otherwise specified herein, all
notices, requests, demands and other communications required
or desired to be given hereunder will 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 will 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 will 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 paragraph to:
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
Attention: Dr. Louis F. Centofanti
If to the Holder: Keith Fetter
Piedmont Consulting, Inc.
3131 Piedmont Road, Suite 205
Atlanta, Georgia 30305
13. Headings. The headings of this Warrant are inserted as
a matter of convenience and will not affect the construction
or interpretation hereof.
14. 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.
15. Survival of Representations. All representations and
warranties contained herein will survive the execution of
this Warrant.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed by its President and its corporate seal to be affixed
hereto and attested by its Secretary this 25th day of July, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By:________________________
Dr. Louis F. Centofanti,
President
(the "Company")
__________________________________
KEITH FETTER, an individual
("the Holder")
MBEN\N-P\PESI\WARRANTS\JULY97.4<PAGE>
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 ____________________________
MBEN\N-P\PESI\WARRANTS\JULY97.4
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. 11-12-97 100,000 shares of
Common Stock
FOR VALUE RECEIVED, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), hereby certifies that
DIONYSUS LIMITED ("Dionysus"), 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 November 12, 2002 (the "Exercise
Period"), up to one hundred thousand (100,000) fully paid and
nonassessable shares of the Company's common stock, par value $.001
per share ("Common Stock"), at a purchase price of $1.70 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 warrant 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".
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 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 9 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
<PAGE>
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.
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
2
<PAGE>
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.
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
3
<PAGE>
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
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.
-4-
<PAGE>
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
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
-5-
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:
If to the Company: Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32606-1649
Attention: Dr. Louis F. Centofanti
Chief Executive Officer
Fax No.: (352) 373-0040
If to the Holder: Dionysus Limited
P. O. Box 175
100 Market Street
Douglas, Isle of Man
IM99 ITT
Attention: Gordon Mundy
Managing Director
Fax No.: 011 44 1624 620588
-6-
<PAGE>
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.
IN WITNESS WHEREOF, this Warrant has been signed by the
parties hereto this _____ day of November, 1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By______________________________
Dr. Louis F. Centofanti
Chief Executive Officer
(the "Company")
DIONYSUS LIMITED
By______________________________
Gordon Mundy
Managing Director
(the "Holder")
tsb warrants/11-12-97
-7-
<PAGE>
<PAGE>
<PAGE>
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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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 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.
No. 1-PESI-EW 75,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
FOR VALUE RECEIVED, Perma-Fix Environmental Services,
Inc. (the "Company"), a Delaware corporation, hereby certifies that
D. H. Blair Investment Banking Corp. ("Blair"), or any permitted
assignee thereof, is entitled to purchase from the Company, at any
time in whole or from time to time in part, during the period
commencing the 1st day of January, 1996, and ending at 5:00 p.m.,
Atlanta, Georgia time, on December 31, 1999 (the "Exercise
Period"), seventy-five thousand (75,000) 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 Two Dollars
and 37.5 Cents ($2.375) per share, to be issued and delivered by
the Company upon the exercise of this Warrant; pursuant to the
terms hereof; provided, however, that the number of shares of
Common Stock to be issued and delivered by the Company upon the
exercise of this Warrant and the purchase price to be paid for each
such share 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
the Warrant is hereinafter collectively referred to as the "Warrant
Shares". The price payable for each of the Warrant Shares upon
such exercise is hereinafter referred to as the "Warrant Price",
which Warrant Price shall be Two Dollars and 37.5 Cents ($2.375)
for each Warrant Share, subject to adjustment from time to time
pursuant to Section 3 hereof. The term "Common Stock" as
hereinafter used in this Warrant shall mean the shares of Common
Stock, par value $.001 per share, of the Company.
<PAGE>
This Warrant is issued in consideration of the
agreement by Blair to extend from October 31, 1994, to January 31,
1995, the due date of the remaining unpaid principal balance owing
under that certain Promissory Note, dated March 31, 1992, issued by
the Company and payable to the order of Blair, in the original
principal amount of Six Hundred Twenty-Five Thousand Dollars
($625,000.00), with interest at the rate of ten percent (10%) per
annum.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant or as may be imposed under applicable federal and
state securities laws or the applicable exchange upon which the
2
<PAGE>
Common Stock may be listed) and free and clear of all preemptive
rights.
3. Protection Against Dilution.
3.1 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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, 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
3
<PAGE>
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 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 the Holder 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, 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 3 with
respect to the rights and interests of the Holder 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
4
<PAGE>
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder in accordance with this Section 3, the
5
<PAGE>
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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
-6-
<PAGE>
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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
7
<PAGE>
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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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 receives a
written request from the Holder of this Warrant
(whether or not the Holder theretofore shall have
exercised this Warrant in whole or in part), and
provided that at the time of such request the Holder is
the owner of, and/or has the right pursuant to this
Warrant to purchase Warrant Shares representing in the
aggregate (either alone or together with Warrant Shares
theretofore purchased and/or purchasable upon the exer-
8
<PAGE>
cise of Warrants by other holders joining in such
request) seventy-five thousand (75,000) of the total
number of Warrant Shares, the Company shall (i)
promptly prepare and file with the Securities and
Exchange Commission (the "Commission") a Registration
Statement under the Securities Act of 1933 (the "Act")
covering all of the Warrant Shares theretofore issued
and which thereafter may be issuable upon the exercise
of this Warrant (provided, that the audited financial
statements to be included in such Registration
Statement shall be the year-end financial statements
customarily included in the Company's Annual Report on
Form 10-K under the Securities Exchange Act of 1934
(the "Exchange Act"), and provided further, that, if
the request for registration is received within three
(3) months prior to the commencement of a fiscal year
of the Company, the Company may delay the preparation
and filing of such Registration Statement for a period
of not more than ninety (90) days following the
commencement of such fiscal year in order to prepare
and include in such Registration Statement audited
financial statements for the immediately preceding
fiscal year); (ii) use its reasonable efforts to cause
such Registration Statement to become effective and to
remain effective and current with respect to the
Warrant Shares for an aggregate period of one hundred
eighty (180) days (exclusive of any period during which
the prospectus included therein shall not meet the
requirements of Section 10 of the Act), and (iii) use
reasonable efforts to cause the prospectus included
therein to be available for the sale of Warrant Shares
from time to time during such period by the holders
thereof in ordinary brokerage transactions in the over-
the-counter market or on any national securities
exchange on which the Common Stock is then listed. The
right to demand the filing of a Registration Statement
pursuant to this Section 5.1 shall be exercisable on
one occasion only; provided, however, that if such
Registration Statement is withdrawn for any reason
prior to the earlier of (i) the sale by the Holder of
all of the Warrant Shares or (ii) its having been
effective for one hundred eighty (180) days (exclusive
of any periods during which the prospectus included
therein does not meet the requirements of Section 10 of
the Act), then such right shall be exercisable on one
additional occasion so long as the conditions herein-
above set forth are satisfied on such additional
occasion. The Holder's rights under this Section 5.1
shall expire and terminate at the earlier of such time
as (i) the Holder shall have received from counsel to
the Company an unqualified written opinion of such
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<PAGE>
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 such
Holder, or (ii) the Company has theretofore included
the Warrant Shares within the coverage of a
Registration Statement and such Registration Statement
has not been withdrawn on or before such becomes
effective, or (iii) termination of the Exercise Period.
5.2 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, Form S-2 or Form S-3 Regis-
tration Statement under the Act, the Company shall give
the Holder notice of such proposed registration at
least twenty (20) calendar days prior to the filing of
a Registration Statement with the Commission. 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 not less than fifty percent
(50%) of the Warrant Shares, 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 Statement to become and remain
effective so long as the Company keeps such Regis-
tration Statement 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, and then only in such quantity as will
not, in the opinion of the managing underwriters,
jeopardize the success of the offering by the Company.
If the total amount of the Warrant Shares requested to
be included in the Registration Statement by the Holder
and other shareholders of the Company that request the
inclusion of securities of the Company in such Regis-
tration 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
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<PAGE>
(the Warrant Shares and other securities of the Company
held by the Other Shareholders so included to be appor-
tioned 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 Regis-
tration Statement or in such other proportions as have
been mutually agreed by the Holder and the Other Share-
holders); provided, however, that no such reduction
shall be made with respect to any securities offered by
the Company or any 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, Warrants may not be exercised
by, or shares of Common Stock issued to, the Holder in
any state in which such exercise would be unlawful.
Notwithstanding anything herein to the contrary, the
rights of the Holder of this Warrant under this Section
5.2 shall expire and terminate at the earlier of such
time as: (i) the Holder shall have received from
counsel for the Company a written opinion of such
counsel that the Holder has the right, pursuant to the
provisions of Rule 144 promulgated under the Act, to
sell within any three (3) month period, all Warrant
Shares then held or purchasable upon the exercise of
this Warrant by the Holder or (ii) the Company has
theretofore included the Warrant Shares within the
coverage of a Registration Statement and such
Registration Statement has not been withdrawn on or
before such becomes effective.
5.3 The Company shall bear the expenses of preparing any
registration statement contemplated by 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,
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<PAGE>
and fees of counsel to the Holder relating to the
Warrant Shares included in such Registration Statement.
5.4 In the event any Warrant Shares are included in a
Registration Statement pursuant to Sections 5.1 and 5.2
hereof:
5.4.1 Except as otherwise provided in this Section
5.4, 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
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<PAGE>
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 5.4.4 below;
provided, however, that the indemnity
agreement contained in this Section 5.4.1
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 person thereof.
5.4.2 Except as otherwise provided in this Section
5.4, 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
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<PAGE>
in connection with investigating or defending
any such loss, claim, damage, liability or
action, except as otherwise provided in
Section 5.4.4 below; provided, however, that
the indemnity agreement contained in this
Section 5.4.2 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.
5.4.3 If the indemnification provided for in this
Section 5 is unavailable to an indemnified
party in respect to any losses, claims,
damages or liabilities referred to herein,
then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable
by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect
the relative benefits received by the
indemnifying party, on the one hand, and the
indemnified party, on the other hand, from the
offering of the securities in the Registration
Statement or (ii) if the allocation provided
by clause (i) above is not permitted by
applicable law, in such proportion as is
appropriate to reflect not only the relative
benefits referred to in clause (i) above but
also the relative fault of the indemnifying
party and of the indemnified party in
connection with the actions, statements or
omissions that resulted in such losses,
claims, damages or liabilities, as well as any
other relevant equitable considerations. The
relative benefits received by the indemnifying
party and the indemnified party from the
offering of the securities in the Registration
Statement shall be deemed to be in the same
respective proportion as the total net
proceeds from the offering (after deducting
therefrom the expenses) received by the
indemnifying party and the indemnified party.
The relative fault of the indemnifying party,
on the one hand, and the indemnified party, on
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<PAGE>
the other hand, (i) in the case of any untrue
or alleged untrue statement of a material fact
or any omission or alleged omission to state a
material fact, shall be determined by
reference to, among other things, whether such
statement or omission relates to information
supplied by the indemnifying party or by the
indemnified party and the parties' relative
intent, knowledge, access to information and
opportunity to correct or prevent such
statement or omission, and (ii) in the case of
any other action or omission, shall be
determined by reference to, among other
things, whether such action or omission was
taken or omitted to be taken by the
indemnifying party or by the indemnified party
and the parties' relative intent, knowledge,
access to information and opportunity to
prevent such action or omission.
5.4.4 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 5.4, 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 part 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 5.4 for any legal or
other expenses subsequently incurred by the
indemnified party in connection with the
defense thereof. The indemnified party shall
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<PAGE>
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 sole expense of
the indemnified party, except that the indem-
nifying party will pay such fees and expenses
of such counsel 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 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 parties.
6. Limited Transferability and Investment Representation.
6.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder or its duly authorized attorney, upon written
request during ordinary business hours, to inspect and
copy or make extracts from its books showing the
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<PAGE>
registered holder of this Warrant. Any Warrant issued
in substitution of this Warrant will be dated the same
date as this Warrant.
6.2 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 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 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 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 the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
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
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<PAGE>
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.
9. Warrant Holder Not Shareholder. This Warrant 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, 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Blair Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: Martin Bell, Esquire
or such other address as the Company and Blair 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.
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<PAGE>
<PAGE>
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 ____ day of January,
1995.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
D. H. BLAIR INVESTMENT BANKING CORP.
By: _________________________________
Name:
Title:
(the "Holder")
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<PAGE>
<PAGE>
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 ____________________________
MHB:\N-P\PF\WARRANTS\BLAIR.75
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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 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.
No. 1-PESI-EW-A 7,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
In January 1995, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), issued Warrant No. 1-PESI-EW
("Blair Warrant") to D. H. BLAIR INVESTMENT BANKING CORP., or any
permitted assignee thereof ("Blair") for the purchase of seventy-
five thousand (75,000) fully paid and nonassessable shares of the
Company's common stock, par value $.001 per share ("Common Stock").
Under the terms of the Blair Warrant, on or about March 23, 1995,
Blair assigned various portions of the Blair Warrant to certain
persons and retained a portion of the Blair Warrant to itself.
This warrant ("Warrant") is issued pursuant to the partial
assignment by Blair of the Blair Warrant to reflect the unassigned
portion. The Blair Warrant, and all warrants of like tenor which
may be issued by the Company as a result of the assignment by Blair
of all or any portion of the Blair Warrant or all warrants issued
by the Company in exchange or substitution for, or the assignment
of, or upon partial exercise of the Blair Warrant, this Warrant, or
any other warrants issued by the Company as a result of the
assignment by Blair of all or any portion of the Blair Warrant are
hereafter collectively referred to as the "Warrants." The
individuals to whom Warrants are issued are hereinafter
collectively referred to as the "Warrant Holders." 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 such exercise
is hereinafter referred to as the "Warrant Price."
FOR VALUE RECEIVED, the Company hereby certifies that Blair,
or any permitted assignee thereof, is entitled to purchase from the
Company, at any time in whole or from time to time in part, during
the period commencing the 1st day of January, 1996, and ending at
5:00 p.m., Atlanta, Georgia time, on December 31, 1999 (the
<PAGE>
"Exercise Period"), seven thousand (7,000) 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 Two Dollars
and 37.5 Cents ($2.375) per share, to be issued and delivered by
the Company upon the exercise of this Warrant; pursuant to the
terms hereof; provided, however, that the number of shares of
Common Stock to be issued and delivered by the Company upon the
exercise of this Warrant and the purchase price to be paid for each
such share 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
the Warrant is hereinafter collectively referred to as the "Warrant
Shares". The price payable for each of the Warrant Shares upon
such exercise is hereinafter referred to as the "Warrant Price",
which Warrant Price shall be Two Dollars and 37.5 Cents ($2.375)
for each Warrant Share, subject to adjustment from time to time
pursuant to Section 3 hereof. The term "Common Stock" as
hereinafter used in this Warrant shall mean the shares of Common
Stock, par value $.001 per share, of the Company.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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
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<PAGE>
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant 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 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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
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<PAGE>
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 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 the Holder 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, 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
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<PAGE>
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 the Holder 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
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
All calculations under this Section 3 shall be made to
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<PAGE>
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder 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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
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<PAGE>
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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
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<PAGE>
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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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.
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<PAGE>
5. Limited Transferability and Investment Representation.
5.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder 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 substitution of this Warrant will be dated the same
date as this Warrant.
5.2 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 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 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 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
-9-
<PAGE>
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.
6. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
7. 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.
8. Warrant Holder Not Shareholder. This Warrant 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, in respect of any
matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
9. 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Blair Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: Martin Bell, Esquire
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<PAGE>
or such other address as the Company and Blair previously may have
designated in conformity with the foregoing.
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. 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.
12. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be hereunto
affixed and attested by its Secretary to be effective as of the
23rd day of March, 1995.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
D. H. BLAIR INVESTMENT BANKING CORP.
By: _________________________________
Name:
Title:
(the "Holder")
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<PAGE>
<PAGE>
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 ____________________________
I:\N-P\PESI\S-3\Exhibit4.23.wpd
-12-
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 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.
No. 1-PESI-EW-B 28,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
In January 1995, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), issued Warrant No. 1-PESI-EW
("Blair Warrant") to D. H. BLAIR INVESTMENT BANKING CORP., or any
permitted assignee thereof ("Blair") for the purchase of seventy-
five thousand (75,000) fully paid and nonassessable shares of the
Company's common stock, par value $.001 per share ("Common Stock").
Under the terms of the Blair Warrant, on or about March 23, 1995,
Blair assigned various portions of the Blair Warrant to certain
persons and retained a portion of the Blair Warrant to itself.
This warrant ("Warrant") is issued pursuant to the partial
assignment by Blair of the Blair Warrant. The Blair Warrant, and
all warrants of like tenor which may be issued by the Company as a
result of the assignment by Blair of all or any portion of the
Blair Warrant or all warrants issued by the Company in exchange or
substitution for, or the assignment of, or upon partial exercise of
the Blair Warrant, this Warrant, or any other warrants issued by
the Company as a result of the assignment by Blair of all or any
portion of the Blair Warrant are hereafter collectively referred to
as the "Warrants." The individuals to whom Warrants are issued are
hereinafter collectively referred to as the "Warrant Holders." 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
such exercise is hereinafter referred to as the "Warrant Price."
FOR VALUE RECEIVED, the Company hereby certifies that J.
Morton Davis, or any permitted assignee thereof, is entitled to
purchase from the Company, at any time in whole or from time to
time in part, during the period commencing the 1st day of January,
1996, and ending at 5:00 p.m., Atlanta, Georgia time, on December
31, 1999 (the "Exercise Period"), twenty-eight thousand (28,000)
<PAGE>
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 Two Dollars and 37.5 Cents ($2.375) per share, to
be issued and delivered by the Company upon the exercise of this
Warrant; pursuant to the terms hereof; provided, however, that the
number of shares of Common Stock to be issued and delivered by the
Company upon the exercise of this Warrant and the purchase price to
be paid for each such share 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 the Warrant is hereinafter
collectively referred to as the "Warrant Shares". The price
payable for each of the Warrant Shares upon such exercise is
hereinafter referred to as the "Warrant Price", which Warrant Price
shall be Two Dollars and 37.5 Cents ($2.375) for each Warrant
Share, subject to adjustment from time to time pursuant to Section
3 hereof. The term "Common Stock" as hereinafter used in this
Warrant shall mean the shares of Common Stock, par value $.001 per
share, of the Company.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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
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<PAGE>
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant 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 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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
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<PAGE>
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 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 the Holder 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, 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
-4-
<PAGE>
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 the Holder 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
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
All calculations under this Section 3 shall be made to
-5-
<PAGE>
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder 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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
-6-
<PAGE>
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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
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<PAGE>
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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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.
-8-
<PAGE>
5. Limited Transferability and Investment Representation.
5.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder 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 substitution of this Warrant will be dated the same
date as this Warrant.
5.2 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 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 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 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
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<PAGE>
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.
6. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
7. 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.
8. Warrant Holder Not Shareholder. This Warrant 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, in respect of any
matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
9. 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: J. Morton Davis
-10-
<PAGE>
or such other address as the Company and Holder previously may have
designated in conformity with the foregoing.
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. 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.
12. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be hereunto
affixed and attested by its Secretary to be effective as of the
23rd day of March, 1995.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
J. MORTON DAVIS
_________________________________
(the "Holder")
<PAGE>
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 ____________________________
I:\N-P\PESI\S-3\exhibit4.24.wpd
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 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.
No. 1-PESI-EW-C 28,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
In January 1995, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), issued Warrant No. 1-PESI-EW
("Blair Warrant") to D. H. BLAIR INVESTMENT BANKING CORP., or any
permitted assignee thereof ("Blair") for the purchase of seventy-
five thousand (75,000) fully paid and nonassessable shares of the
Company's common stock, par value $.001 per share ("Common Stock").
Under the terms of the Blair Warrant, on or about March 23, 1995,
Blair assigned various portions of the Blair Warrant to certain
persons and retained a portion of the Blair Warrant to itself.
This warrant ("Warrant") is issued pursuant to the partial
assignment by Blair of the Blair Warrant. The Blair Warrant, and
all warrants of like tenor which may be issued by the Company as a
result of the assignment by Blair of all or any portion of the
Blair Warrant or all warrants issued by the Company in exchange or
substitution for, or the assignment of, or upon partial exercise of
the Blair Warrant, this Warrant, or any other warrants issued by
the Company as a result of the assignment by Blair of all or any
portion of the Blair Warrant are hereafter collectively referred to
as the "Warrants." The individuals to whom Warrants are issued are
hereinafter collectively referred to as the "Warrant Holders." 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
such exercise is hereinafter referred to as the "Warrant Price."
FOR VALUE RECEIVED, the Company hereby certifies that Esther
Stahler, or any permitted assignee thereof, is entitled to purchase
from the Company, at any time in whole or from time to time in
part, during the period commencing the 1st day of January, 1996,
and ending at 5:00 p.m., Atlanta, Georgia time, on December 31,
1999 (the "Exercise Period"), twenty-eight thousand (28,000) 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 Two Dollars and 37.5 Cents ($2.375) per share, to be
issued and delivered by the Company upon the exercise of this
Warrant; pursuant to the terms hereof; provided, however, that the
number of shares of Common Stock to be issued and delivered by the
Company upon the exercise of this Warrant and the purchase price to
be paid for each such share 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 the Warrant is hereinafter
collectively referred to as the "Warrant Shares". The price
payable for each of the Warrant Shares upon such exercise is
hereinafter referred to as the "Warrant Price", which Warrant Price
shall be Two Dollars and 37.5 Cents ($2.375) for each Warrant
Share, subject to adjustment from time to time pursuant to Section
3 hereof. The term "Common Stock" as hereinafter used in this
Warrant shall mean the shares of Common Stock, par value $.001 per
share, of the Company.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant 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 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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, 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 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 the Holder 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, 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 3 with
respect to the rights and interests of the Holder 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
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder 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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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. Limited Transferability and Investment Representation.
5.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder 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 substitution of this Warrant will be dated the same
date as this Warrant.
5.2 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 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 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 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.
6. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
7. 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.
8. Warrant Holder Not Shareholder. This Warrant 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, in respect of any
matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
9. 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: Esther Stahler
or such other address as the Company and Holder previously may have
designated in conformity with the foregoing.
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. 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.
12. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be
signed by its President and its corporate seal to be hereunto
affixed and attested by its Secretary to be effective as of the
23rd day of March, 1995.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
ESTHER STAHLER
_________________________________
(the "Holder")
<PAGE>
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 ____________________________
I:\N-P\PESI\S-3\exhibit4.25.wpd
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 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.
No. 1-PESI-EW-E 5,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
In January 1995, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), issued Warrant No. 1-PESI-EW
("Blair Warrant") to D. H. BLAIR INVESTMENT BANKING CORP., or any
permitted assignee thereof ("Blair") for the purchase of seventy-
five thousand (75,000) fully paid and nonassessable shares of the
Company's common stock, par value $.001 per share ("Common Stock").
Under the terms of the Blair Warrant, on or about March 23, 1995,
Blair assigned various portions of the Blair Warrant to certain
persons and retained a portion of the Blair Warrant to itself.
This warrant ("Warrant") is issued pursuant to the partial
assignment by Blair of the Blair Warrant. The Blair Warrant, and
all warrants of like tenor which may be issued by the Company as a
result of the assignment by Blair of all or any portion of the
Blair Warrant or all warrants issued by the Company in exchange or
substitution for, or the assignment of, or upon partial exercise of
the Blair Warrant, this Warrant, or any other warrants issued by
the Company as a result of the assignment by Blair of all or any
portion of the Blair Warrant are hereafter collectively referred to
as the "Warrants." The individuals to whom Warrants are issued are
hereinafter collectively referred to as the "Warrant Holders." 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
such exercise is hereinafter referred to as the "Warrant Price."
FOR VALUE RECEIVED, the Company hereby certifies that
Martin A. Bell, or any permitted assignee thereof, is entitled to
purchase from the Company, at any time in whole or from time to
time in part, during the period commencing the 1st day of January,
1996, and ending at 5:00 p.m., Atlanta, Georgia time, on
December 31, 1999 (the "Exercise Period"), five thousand (5,000)
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 Two Dollars and 37.5 Cents ($2.375) per share, to
be issued and delivered by the Company upon the exercise of this
Warrant; pursuant to the terms hereof; provided, however, that the
number of shares of Common Stock to be issued and delivered by the
Company upon the exercise of this Warrant and the purchase price to
be paid for each such share 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 the Warrant is hereinafter
collectively referred to as the "Warrant Shares". The price
payable for each of the Warrant Shares upon such exercise is
hereinafter referred to as the "Warrant Price", which Warrant Price
shall be Two Dollars and 37.5 Cents ($2.375) for each Warrant
Share, subject to adjustment from time to time pursuant to Section
3 hereof. The term "Common Stock" as hereinafter used in this
Warrant shall mean the shares of Common Stock, par value $.001 per
share, of the Company.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant 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 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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, 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 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 the Holder 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, 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 3 with
respect to the rights and interests of the Holder 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
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder 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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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. Limited Transferability and Investment Representation.
5.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder 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 substitution of this Warrant will be dated the same
date as this Warrant.
5.2 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 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 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 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.
6. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
7. 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.
8. Warrant Holder Not Shareholder. This Warrant 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, in respect of any
matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
9. 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: Martin A. Bell, Esquire
or such other address as the Company and Holder previously may have
designated in conformity with the foregoing.
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. 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.
12. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
<PAGE>
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 ____ day of December,
1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
MARTIN A. BELL, ESQUIRE
_________________________________
(the "Holder")
<PAGE>
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 ____________________________
I:\N-P\PESI\S-3\exhibit4.26.wpd
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 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.
No. 1-PESI-EW-D 7,000 Shares
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
Warrant for the Purchase of Shares of Common Stock
In January 1995, PERMA-FIX ENVIRONMENTAL SERVICES, INC., a
Delaware corporation (the "Company"), issued Warrant No. 1-PESI-EW
("Blair Warrant") to D. H. BLAIR INVESTMENT BANKING CORP., or any
permitted assignee thereof ("Blair") for the purchase of seventy-
five thousand (75,000) fully paid and nonassessable shares of the
Company's common stock, par value $.001 per share ("Common Stock").
Under the terms of the Blair Warrant, on or about March 23, 1995,
Blair assigned various portions of the Blair Warrant to certain
persons and retained a portion of the Blair Warrant to itself.
This warrant ("Warrant") is issued pursuant to the partial
assignment by Blair of the Blair Warrant. The Blair Warrant, and
all warrants of like tenor which may be issued by the Company as a
result of the assignment by Blair of all or any portion of the
Blair Warrant or all warrants issued by the Company in exchange or
substitution for, or the assignment of, or upon partial exercise of
the Blair Warrant, this Warrant, or any other warrants issued by
the Company as a result of the assignment by Blair of all or any
portion of the Blair Warrant are hereafter collectively referred to
as the "Warrants." The individuals to whom Warrants are issued are
hereinafter collectively referred to as the "Warrant Holders." 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
such exercise is hereinafter referred to as the "Warrant Price."
FOR VALUE RECEIVED, the Company hereby certifies that Ruki
Renov, or any permitted assignee thereof, is entitled to purchase
from the Company, at any time in whole or from time to time in
part, during the period commencing the 1st day of January, 1996,
and ending at 5:00 p.m., Atlanta, Georgia time, on December 31,
1999 (the "Exercise Period"), seven thousand (7,000) 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
Two Dollars and 37.5 Cents ($2.375) per share, to be issued and
delivered by the Company upon the exercise of this Warrant;
pursuant to the terms hereof; provided, however, that the number of
shares of Common Stock to be issued and delivered by the Company
upon the exercise of this Warrant and the purchase price to be paid
for each such share 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 the Warrant is hereinafter collectively referred to as
the "Warrant Shares". The price payable for each of the Warrant
Shares upon such exercise is hereinafter referred to as the
"Warrant Price", which Warrant Price shall be Two Dollars and 37.5
Cents ($2.375) for each Warrant Share, subject to adjustment from
time to time pursuant to Section 3 hereof. The term "Common Stock"
as hereinafter used in this Warrant shall mean the shares of Common
Stock, par value $.001 per share, of the Company.
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 the holder of this Warrant (the "Holder"), by
the surrender of this Warrant (with the subscription form at the
end hereof duly executed) at the address set forth in Section 10
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 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, 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 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 (ii) 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. Upon termination of the Exercise
Period, this Warrant shall no longer be exercisable by the Holder.
2. Reservation of Warrant Shares. The Company agrees, that at
all times prior to the expiration of the Exercise Period, 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 Warrant 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 Except as otherwise provided in this Section 3, if, at
any time or from time to time after the date of this
Warrant, the Company shall distribute to one or more of
the holders of an aggregate of more than 10% of its
outstanding Common Stock, (i) securities (other than of
Common Stock or stock options, warrants or rights to
purchase Common Stock or securities convertible into
Common Stock granted or sold in accordance with Section
3.8), without payment therefor, or (ii) 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. Notice of
each such distribution shall be forthwith mailed to the
Holder.
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, 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 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 the Holder 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, 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 3 with
respect to the rights and interests of the Holder 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
the Holder 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 Except as provided in subsection 3.8 hereof, if at any
time or from time to time after the date of this
Warrant, the Company shall sell any shares of Common
Stock for a consideration per share less than the
Warrant Price in effect immediately prior to such sale,
the Warrant Price shall be adjusted as of the date of
such sale so that the same shall equal the price
determined by dividing (i) the sum of (A) the number of
shares of Common Stock outstanding immediately prior to
such sale multiplied by the Warrant Price plus (B) the
consideration received by the Company upon such sale,
by (ii) the total number of shares of Common Stock
outstanding after such sale; provided, however, that in
no event shall the exercise price be adjusted pursuant
to the computation under this Section 3.4 to an amount
in excess of the Warrant Price in effect immediately
prior to such computation.
3.5 No adjustment of the Warrant Price shall be required
unless such adjustment would require an increase or
decrease of at least $0.05; 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 the Holder.
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.
3.6 Whenever the Warrant Price is adjusted as provided in
this Section 3 and upon any modification of the rights
of the Holder 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 the
Holder.
3.7 For purposes of this Section 3, in case any shares of
Common Stock, options or securities entitling the
holders thereof to purchase Common Stock or any
securities entitling the holders thereof to convert
such into Common Stock ("Convertible Securities") 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.
3.8 Notwithstanding anything herein to the contrary, no
adjustment to the Warrant Shares or the Warrant Price
shall be required under this Section 3 as a result of
(i) the issuance or sale of Common Stock or Convertible
Securities by the Company as a result of the exercise
of any options presently outstanding under the
Company's 1991 Performance Equity Plan, as amended (the
"1991 Plan"), 1992 Outside Directors Stock Option Plan,
as amended (the "1992 Plan"), and 1993 Nonqualified
Stock Option Plan, as amended (the "1993 Plan") (the
1991 Plan, 1992 Plan, and the 1993 Plan are referred to
collectively as the "Plans"); or (ii) the issuance of
any options which may hereafter be granted by the
Company under any of the Plans or under any other
employee benefit plan of the Company provided such
options are issued with a conversion or exercise price
equal to the fair market value of the Common Stock at
the date of grant or any Common Stock or Convertible
Securities hereafter issued or sold by the Company as
a result of the exercise of any options hereafter
granted by the Company under any Plans or under any
other employee benefit plan of the Company; or (iii)
the issuance or sale by the Company of any Common
Stock, Convertible Securities, warrants or rights in
connection with or arising out of or relating to the
private placement described in the Revised Confidential
Term Sheet, dated June 6, 1994, as supplemented from
time to time (the "Private Placement"), whether such is
now or hereafter issued or sold; or (iv) the issuance
or sale of Common Stock or Convertible Securities after
the date hereof upon the exercise of any rights or
warrants outstanding as of the date hereof or the
issuance or sale of Common Stock or Convertible Secur-
ities after the date hereof upon the exercise of any
rights or warrants issued by the Company in connection
with or arising out of or relating to the Private
Placement; or (v) the sale of any shares of Common
Stock, Convertible Securities or warrants in a firm
commitment underwritten public offering or the issuance
of any shares of Common Stock or Convertible Securities
upon the exercise or conversion of such warrants or
Convertible Securities issued in such firm commitment
underwritten public offering; or (vi) the issuance by
the Company of Common Stock or any other securities to
Quadrex Corporation or Quadrex Environmental Company,
or their successors or assigns, under or in connection
with or as a result of that certain Stock Purchase
Agreement, dated March 23, 1994, as amended, between
the Company and Quadrex Corporation and that certain
Purchase Agreement, dated March 23, 1994, as amended,
between the Company, Perma-Fix of Florida, Inc.,
Quadrex Corporation and Quadrex Environmental Company.
3.9 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.
3.10 For purposes of this Section 3, in case any shares of
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 shall be or are to be sold or issued for
a consideration other than cash, the amount of the con-
sideration 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 con-
nection therewith.
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. Limited Transferability and Investment Representation.
5.1 This Warrant shall not be transferable or assignable by
the Holder, except (i) to any corporation or
association which is a successor to the Holder, or (ii)
to one or more directors or officers of Blair, 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 docu-
ments as may reasonably be required by the Company to
evidence that such assignee or transferee is bound by
the terms hereof. The Company may treat the registered
holder of this Warrant as he or it appears on the
Company's books at any time as the holder of this
Warrant for all purposes. The Company shall permit the
Holder 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 substitution of this Warrant will be dated the same
date as this Warrant.
5.2 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 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 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 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.
6. Nasdaq; Boston Stock Exchange. Notwithstanding anything
herein to the contrary, this Warrant may not be exercised by the
Holder 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 reasonable efforts to list the Warrant Shares
with the Nasdaq and the Exchange.
7. 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.
8. Warrant Holder Not Shareholder. This Warrant 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, in respect of any
matters whatsoever, or any other rights or liabilities as a
shareholder, prior to the exercise hereof.
9. 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.
Building G, Suite 520
5775 Peachtree-Dunwoody Road
Atlanta, Georgia 30342
Attention: Dr. Louis F. Centofanti
If to the Holder: D. H. Investment Banking Corp.
44 Wall Street
New York, New York 10005
Attention: Ruki Renov
or such other address as the Company and Holder previously may have
designated in conformity with the foregoing.
10. Headings. The headings of this Warrant have been inserted as
a matter of convenience and shall not affect the construction
hereof.
11. 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.
12. Survival of Representations. All representations and
warranties contained herein shall survive the execution of this
Warrant.
<PAGE>
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 ____ day of December,
1997.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By: _________________________________
Dr. Louis F. Centofanti,
Chief Executive Officer
(the "Company")
RUKI RENOV
_________________________________
(the "Holder")
<PAGE>
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 ____________________________
I:\N-P\PESI\S-3\exhibit4.27.wpd
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.
<PAGE>
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.
1940 Northwest 67th Place
Gainesville, Florida 32606-1649
Attention: Mr. Robert W. Foster, Jr.
If to Ally: Ally Capital Management, Inc.
2330 Marinship Way
Sausalito, California
Attention: Vice President -
Venture Investments
<PAGE>
With a copy to: Jeremy D. Weinstein, Esquire
1657 North California Boulevard
Suite 201
Walnut Creek, California 94596
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: ________________________________
Robert W. Foster
President
(the "Company")
ALLY CAPITAL MANAGEMENT, INC.
By: _________________________________
Name:____________________________
Title:___________________________
("Ally")
ISTE:\N-P\PESI\ALLY\WARRANT.2<PAGE>
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
CONNER & WINTERS
A PROFESSIONAL CORPORATION
LAWYERS
ONE LEADERSHIP SQUARE
211 NORTH ROBINSON, SUITE 1700
OKLAHOMA CITY, OKLAHOMA 73102-7101
December 22, 1997
Perma-Fix Environmental Services, Inc.
1940 Northwest 67th Place, Suite A
Gainesville, Florida 32653
Re: Perma-Fix Environmental Services, Inc.; Form S-3
Registration Statement Registering 3,677,074 Shares
of Common Stock; Our File No. 7034.29
Ladies and Gentlemen:
We have acted as special counsel to Perma-Fix Environmental
Services, Inc. (the "Company") in connection with the Form S-3
Registration Statement (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the
"Act") registering up to 3,677,074 shares of the Company's Common
Stock to be reoffered or resold by certain Selling Shareholders (as
defined in the Registration Statement). The Registration Statement
relates to the proposed reoffer or resale from time to time by
certain Selling Shareholders, of the following:
(i) up to 2,285,561 shares of the Company's Common Stock, par
value $.001 per share ("Common Stock"), by RBB Bank
Aktiengesellschaft ("RBB Bank") that are issuable by the
Company to RBB Bank ("RBB Shares") as follows:
(a) up to 1,379,311 shares being acquired by RBB Bank
upon conversion of the Company's Series 6 Class F
Convertible Preferred Stock, par value $.001 per
share ("Series 6 Class F Preferred Stock"),
(b) up to 250,000 shares being acquired by RBB Bank as
payment of dividends on the Series 6 Class F
Preferred Stock, and
(c) up to 656,250 shares being acquired by RBB Bank
upon exercuse if the Series 6 Warrants (as defined in the
Registration Statement);
(ii) up to 271,000 shares of the Company's Common Stock by The
Infinity Fund, L.P. ("Infinity") that are issuable by the
Company to Infinity ("Infinity Shares") as follows:
(a) up to 200,000 shares being acquired by Infinity
upon conversion of the Company's Series 7 Class G
Convertible Preferred Stock, par value $.001 per
share ("Series 7 Class G Preferred Stock"),
(b) up to 36,000 shares being acquired by Infinity as
payment of dividends on the Series 7 Class G
Preferred Stock, and
(c) up to 35,000 shares being acquired by Infinity
upon exercise of the Infinity Warrants (as defined in the
Registration Statement);
(iii) up to 300,000 shares of Common Stock by JW Charles
Financial Services, Inc. ("JW Charles") that are
issuable by the Company to JW Charles (the "JW Charles
Shares") upon the exercise of two (2) warrants
previously issued by the Company to JW Charles ("JW
Charles Warrants");
(iv) up to 125,000 shares of Common Stock by Sun Bank ,
National Association ("Sun Bank") that are issuable by
the Company to Sun Bank ("Sun Bank Shares") upon the
exercise of a warrant previously issued by the Company
to Sun Bank ("Sun Bank Warrant");
(v) up to 7,000 shares of Common Stock by D. H. Blair
Investment Banking Corporation ("Blair") that are
issuable by the Company to Blair ("Blair Shares") upon
the exercise of a warrant previously issued by the
Company to Blair ("Blair Remainder Warrant") to reflect
the remainder of a warrant for 75,000 shares of Common
Stock which was previously issued by the Company to
Blair ("Blair Warrant") and which was partially
assigned by Blair to certain officers and directors of Blair;
(vi) up to 28,000 shares of Common Stock by J. Morton Davis
("Davis") that are issuable by the Company to Davis
("Davis Shares") upon the exercise of a warrant
previously issued by the Company to Davis ("Davis
Warrant") as a result of the assignment by Blair of a
portion of the Blair Warrant;
<PAGE>
(vii) up to 28,000 shares of Common Stock by Esther Stahler
("Stahler") that are issuable by the Company to Stahler
("Stahler Shares") upon the exercise of a warrant
previously issued by the Company to Stahler ("Stahler
Warrant") as a result of the assignment by Blair of a
portion of the Blair Warrant;
(viii) up to 7,000 shares of Common Stock by Martin A. Bell
("Bell") that are issuable by the Company to Bell
("Bell Shares") upon the exercise of a warrant
previously issued by the Company to Bell ("Bell
Warrant") as a result of the assignment by Blair of a
portion of the Blair Warrant;
(ix) up to 5,000 shares of Common Stock by Ruki Renov
("Renov") that are issuable by the Company to Renov
("Renov Shares") upon the exercise of a warrant
previously issued by the Company to Renov ("Renov
Warrant") as a result of the assignment by Blair of a
portion of the Blair Warrant;
(x) up to 20,513 shares of Common Stock by Ally Capital
Management ("Ally") that are issuable by the Company to
Ally ("Ally Shares") upon the exercise of a warrant
previously issued by the Company to Ally ("Ally
Warrant");
(xi) up to 100,000 shares of Common Stock by Dionysus
Limited ("Dionysus") that are issuable by the Company
to Dionysus ("Dionysus Shares") upon the exercise of a
warrant previously issued by the Company to Dionysus
("Dionysus Warrant");
(xii) up to 350,000 shares of Common Stock by Karl H. Ehlert
("Ehlert") that are issuable by the Company to Ehlert
("Ehlert Shares") upon the exercise of two (2) warrants
previously issued by the Company to Ehlert ("Ehlert
Warrants"); and
(xiii) up to 150,000 shares of Common Stock by R. Keith Fetter
("Fetter") that are issuable by the Company to Fetter
("Fetter Shares") upon the exercise of two (2) warrants
previously issued by the Company to Fetter ("Fetter
Warrants").
<PAGE>
We have examined such corporate records, certificates of
officers, other documents and questions of law, as we have considered
necessary or appropriate for the purposes of this opinion.
On the basis of such examination and review, we are of the
opinion that:
(i) the RBB Shares will constitute, if and when issued pursuant
to the terms of the Series 6 Class F Preferred Stock and the
Series 6 Warrants, validly issued and fully paid and
nonassessable shares of Common Stock;
(ii) the Infinity Shares will constitute, if and when issued by
the Company pursuant to the terms of the Series 7 Class G
Preferred Stock and the Infinity Warrant, validly issued and
fully paid and nonassessable shares of Common Stock;
(iii) the JW Charles Shares will constitute, if and when issued by
the Company pursuant to the terms of the JW Charles Warrant,
validly issued and fully paid and nonassessable shares of
Common Stock;
(iv) the Sun Bank Shares will constitute, if and when issued by
the Company pursuant to the terms of the Sun Bank Warrant,
validly issued and fully paid and nonassessable shares of
Common Stock;
(v) the Blair Shares will constitute, if and when issued by the
Company pursuant to the terms of the Blair Remainder
Warrant, validly issued and fully paid and nonassessable
shares of Common Stock; and,
(vi) the Davis Shares will constitute, if and when issued by the
Company pursuant to the terms of the Davis Warrant, validly
issued and fully paid and nonassessable shares of Common
Stock.
(vii) the Stahler Shares will constitute, if and when issued by
the Company pursuant to the terms of the Stahler Warrant, validly
issued and fully paid and nonassessable shares of Common Stock.
(viii) the Bell Shares will constitute, if and when issued by the
Company pursuant to the terms of the Bell Warrant, validly
issued and fully paid and nonassessable shares of Common
Stock.
<PAGE>
(ix) the Renov Shares will constitute, if and when issued by the
Company pursuant to the terms of the Renov Warrant, validly
issued and fully paid and nonassessable shares of Common
Stock.
(x) the Ally Shares will constitute, if and when issued by the
Company pursuant to the terms of the Ally Warrant, validly
issued and fully paid and nonassessable shares of Common
Stock.
(xi) the Dionysus Shares will constitute, if and when issued by
the Company pursuant to the terms of the Dionysus Warrant,
validly issued and fully paid and nonassessable shares of
Common Stock.
(xii) the Ehlert Shares will constitute, if and when issued by the
Company pursuant to the terms of the Ehlert Warrants,
validly issued and fully paid and nonassessable shares of
Common Stock.
(xiii) the Fetter Shares will constitute, if and when issued by the
Company pursuant to the terms of the Fetter Warrants,
validly issued and fully paid and nonassessable shares of
Common Stock.
We consent to the reference to our firm under the heading "Legal
Opinion" and to the filing of this opinion as Exhibit 5.1 to said
Registration Statement.
Very truly yours,
CONNER & WINTERS,
A Professional Corporation
/s/ Conner & Winters
IHS:plh
BALL:\N-P\PESI\S-3\1997\RegSt\Opinion.wpd
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Perma-Fix Environmental Services, Inc.
Gainesville, Florida
We hereby consent to the incorporation by reference in the
Prospectus constituting a part of this Registration Statement of
our report dated September 11, 1997, except for Note 15 which is as
of October 7, 1997, relating to the consolidated financial
statements and schedule of Perma-Fix Environmental Services, Inc.
appearing in the Company's Annual Report on Form 10-K/A for the
year ended December 31, 1996.
We also consent to the reference to us under the caption "Experts"
in the Prospectus.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
Orlando, Florida
December 22, 1997
