SUBSCRIPTION AND PURCHASE AGREEMENT
FOR
5,500 SHARES OF SERIES 3 CLASS C CONVERTIBLE PREFERRED STOCK,
PAR VALUE $.001 PER SHARE
AND
2,000,000 WARRANTS, EACH WARRANT TO PURCHASE
ONE SHARE OF COMMON STOCK
OF
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
(a Delaware corporation)
SUBSCRIPTION AND PURCHASE AGREEMENT (the "Agreement") dated as
of the 17th day of July, 1996, by and between PERMA-FIX
ENVIRONMENTAL SERVICES, INC., a Delaware corporation, having
offices at 1940 Northwest 67th Place, Gainesville, Florida 32606-
1649 (the "Company"), and RBB BANK AKTIENGESELLSCHAFT, organized
under the laws of Austria, and having its principal offices at
Burgring 16, 8101 Graz, Austria (the "Subscriber").
W I T N E S S E T H:
WHEREAS, Subscriber and the Company have arranged for this
Subscription and Purchase Agreement (the "Agreement") to provide
for the subscription and, if such subscription as set forth in this
Agreement is accepted by the Company, the purchase by the
Subscriber, on the terms and subject to the conditions set forth in
this Agreement, of (i) 5,500 shares of a convertible preferred
stock, par value $.001 per share, to be designated by the Company's
Board of Directors as "Series 3 Class C Convertible Preferred
Stock" (hereinafter referred to as the "Series 3 Preferred Stock"),
and (ii) an aggregate of 2,000,000 common stock purchase warrants,
each common stock purchase warrant to purchase one share of the
Company's common stock, par value $.001 per share (the "Common
Stock") at those exercise prices hereinbelow set forth (a "Warrant"
and collectively, the "Warrants"); and
WHEREAS, the Series 3 Preferred Stock and the Warrants are
collectively referred to herein from time to time as "Securities";
and
WHEREAS, the Company's Common Stock is listed for trading on
the Boston Stock Exchange and the Nasdaq SmallCap Market, and the
Company is subject to the reporting requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and has been subject to such filing requirements
for the past ninety (90) days; and
WHEREAS, the Subscriber is an "accredited investor" as such
term is defined in Rule 501 of Regulation D promulgated under the
Securities Act of 1933, as amended (the "Act"); and
WHEREAS, the Subscriber is not a "U. S. Person" as defined in
Regulation S promulgated under the Securities Act of 1933, as
amended (the "Act"); and
WHEREAS, the Securities to be sold in accordance with this
Agreement shall not be registered securities under federal or state
securities laws or quoted or listed for trading on any securities
exchange, organized market or quotation system at the time of
acquisition hereunder; and
WHEREAS, in order to induce the Subscriber to enter into this
Agreement and to subscribe for and purchase the Securities on the
terms and subject to the conditions hereof, the Company is granting
certain registration rights hereunder with respect to the Common
Stock issuable upon the conversion of the Series 3 Preferred Stock
and the Common Stock issuable upon the exercise of the Warrants as
hereinafter set forth; and
WHEREAS, in reliance upon certain representations made by the
Subscriber herein, the transactions contemplated by this Agreement
are such that the offer and sale of Securities by the Company
hereunder will be exempt from registration under applicable federal
and state securities laws pursuant to exemptions made available
under such laws.
NOW, THEREFORE, for and in consideration of the premises, and
the mutual representations, warranties, covenants and agreements
set forth herein, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Subscription for Purchase of Securities.
a. Sale and Purchase. On the basis of the
representations, warranties, covenants and agreements, and subject
to the terms and conditions set forth herein, upon the Closing
hereof (as that term is defined in Section 2(a) below) the Company
agrees to sell, transfer, convey and deliver to the Subscriber, and
the Subscriber agrees to purchase, acquire and accept delivery from
the Company, the Securities for an aggregate purchase price of
United States ("U. S.") $5,500,000 (the "Purchase Price").
b. Reporting Company. Although the Securities, the
shares of Common Stock issuable upon conversion of the Series 3
Preferred Stock (the "Conversion Shares") and the shares of Common
Stock issuable upon exercise of the Warrants (the "Warrant Shares")
shall not be registered upon the Closing under federal or state
securities laws or any rules or regulations promulgated thereunder,
the Company is a public reporting company and has filed or obtained
an extension to file all reports required to be filed by Section 13
or 15(d) of the Exchange Act, since the Company was required to
file such reports. Subscriber has had the opportunity to review,
and has reviewed, all such reports and information which such
Subscriber deemed material to an investment decision regarding the
purchase of the Securities hereunder.
c. Terms of the Series 3 Preferred Stock. The Series
3 Preferred Stock shall contain and be subject to the terms,
conditions, preferences and restrictions set forth in the
Certificate of Designations attached hereto as Exhibit "A".
2. Payment of Purchase Price; Delivery of Securities.
a. Closing. The closing of the purchase of the
Securities contemplated by this Agreement shall occur on or about
July 19, 1996, at the offices of the Company or at such other
mutually convenient time or at such other mutually convenient place
as agreed upon by the parties (the "Closing").
b. Purchase Price and Payment. At the Closing,
Subscriber shall deliver to the Company, in cash, by wire transfer,
the Purchase Price in U. S. dollars and upon receipt by the Company
of the Purchase Price, the Company shall cause to be delivered:
i. to the Subscriber, written evidence from the
Secretary of State of the State of Delaware
that the Certificate of Designations has been
filed in the Office of the Secretary of State
of the State of Delaware on or before the date
of Closing;
ii. to Conner & Winters, a Professional
Corporation, a certificate or certificates
representing the shares of Series 3 Preferred
Stock purchased by the Subscriber hereunder,
in such denominations as Subscriber shall
request, to be held in escrow by Conner &
Winters, a Professional Corporation for the
Subscriber; and
iii. to the Subscriber, (A) a common stock purchase
warrant entitling the Subscriber to purchase
after December 31, 1996, until July 18, 2001,
an aggregate of up to 1,000,000 Warrant Shares
at an exercise price equal to $2.00 per share,
substantially in the form of Exhibit "B"
annexed hereto (sometimes hereinafter referred
to as the "$2.00 Warrants"), and (B) a common
stock purchase warrant entitling the
Subscriber to purchase after December 31,
1996, until July 18, 2001, an aggregate of up
to 1,000,000 Warrant Shares at an exercise
price equal to $3.50 per share, substantially
in the form of Exhibit "C" annexed hereto
(sometimes hereinafter referred to as the
"$3.50 Warrants").
c. Restrictive Legends. Subject to the provisions of
Section 5 below, all certificates representing the Securities shall
bear the restrictive legend substantially in the form set forth in
Section 6 below which shall include, but not be limited to, a
legend to the effect that the securities represented by such
certificate have not been registered under the Securities Act of
1933, as amended (the "Act"), and unless there is an effective
registration statement relating thereto, such securities may not be
offered, sold, transferred, mortgaged, pledged or hypothecated
without an exemption from registration and an opinion of counsel to
the Company with respect thereto, or an opinion from counsel for
the Subscriber, which opinion is satisfactory to the Company, to
the effect that registration under the Act is not required in
connection with such sale or transfer and the reasons therefor.
The legend on all such certificates shall also make reference to
the registration rights set forth in Section 5 hereof.
3. Representations, Warranties and Covenants of Subscriber.
In connection with this Agreement, the Subscriber hereby
represents, warrants and covenants to the Company as follows:
a. Investment Intent. The Subscriber represents and
warrants that the Securities being purchased (and any underlying
Conversion Shares and Warrant Shares) are being purchased or
acquired solely for the Subscriber's own account, for investment
purposes only and not with a view toward the distribution or resale
to others. Subscriber acknowledges, understands and appreciates
that the Securities have not been registered under the Act by
reason of a claimed exemption under the provisions of such Act
which depends, in large part, upon Subscriber's representations as
to investment invention, investor status and related and other
matters set forth herein. Subscriber understands that, in the view
of the United States Securities and Exchange Commission (the
"SEC"), among other things, a purchase now with an intent to
distribute or resell would represent a purchase and acquisition
with an intent inconsistent with its representation to the Company,
and the SEC might regard such a transfer as a deferred sale for
which the registration exemption is not available. Subscriber
agrees and consents to the placement of a legend on the
certificate(s) representing the Securities purchased and acquired
hereunder, stating that such Securities have not been registered
under the Act or applicable state securities laws.
b. Certain Risk. The Subscriber recognizes that the
purchase of the Securities involves a high degree of risk in that
(i) the Company has sustained losses through March 31, 1996, from
its operations, and may require substantial funds in addition to
the proceeds of this private placement; (ii) that the Company has
a substantial accumulated deficit; (iii) an investment in the
Company is highly speculative and only investors who can afford the
loss of their entire investment should consider investing in the
Company and the Securities; (iv) an investor may not be able to
liquidate his investment; (v) transferability of the Securities is
extremely limited; (vi) in the event of a disposition an investor
could sustain the loss of his entire investment; (vii) the
Securities represent non-voting equity securities, and the right to
convert into and purchase shares of voting equity securities in a
corporate entity that has an accumulated deficit; (viii) no return
on investment, whether through distributions, appreciation,
transferability or otherwise, and no performance by, through or of
the Company, has been promised, assured, represented or warranted
by the Company, or by any director, officer, employee, agent or
representative thereof; and, (ix) while the Common Stock is
presently quoted and traded on the Boston Stock Exchange and the
Nasdaq SmallCap Market and while the Subscriber is a beneficiary of
certain registration rights provided herein, the Securities
subscribed for and that may be purchased under this Agreement and
the Conversion Shares issuable upon conversion of the Series 3
Preferred Stock and the Warrant Shares issuable upon exercise of
the Warrants (x) are not registered under applicable federal or
state securities laws, and thus may not be sold, conveyed, assigned
or transferred unless registered under such laws or unless an
exemption from registration is available under such laws, as more
fully described below, and (y) are not quoted, traded or listed for
trading or quotation on the Nasdaq SmallCap Market, or any other
organized market or quotation system, and there is therefore no
present public or other market for such Securities or the
Conversion Shares or the Warrant Shares, nor can there be any
assurance that the Common Stock will continue to be quoted, traded
or listed for trading or quotation on the Boston Stock Exchange or
the Nasdaq SmallCap Market or on any other organized market or
quotation system.
c. Prior Investment Experience. The Subscriber
acknowledges that he has prior investment experience, including
investment in non-listed and non-registered securities, or has
employed the services of an investment advisor, attorney or
accountant to read all of the documents furnished or made available
by the Company to it and to evaluate the merits and risks of such
an investment on its behalf, and that it recognizes the highly
speculative nature of this investment.
d. No Review by the SEC. The Subscriber hereby
acknowledges that this offering of the Securities has not been
reviewed by the SEC because this private placement is intended to
be a nonpublic offering pursuant to Sections 4(2) or 3(b) of the
Act and/or Regulation D promulgated under the Act.
e. Not Registered. The Subscriber understands that the
Securities, the Conversion Shares and the Warrant Shares have not
been registered under the Act by reason of a claimed exemption
under the provisions of the Act which depends, in part, upon his
investment intention. In this connection, the Subscriber
understands that it is the position of the SEC that the statutory
basis for such exemption would not be present if his representation
merely meant that his present intention was to hold such securities
for a short period, such as the capital gains period of tax
statutes, for a deferred sale, for a market rise, assuming that a
market develops, or for any other fixed period. The Subscriber
realizes that, in the view of the SEC, a purchase now with an
intent to resell would represent a purchase with an intent
inconsistent with his representation to the Company, and the SEC
might regard such a sale or disposition as a deferred sale to which
such exemptions are not available.
f. No Public Market. The Subscriber understands that
there is no public market for the Series 3 Preferred Stock or the
Warrants. The Subscriber understands that although there is
presently a public market for the Common Stock, including the
Common Stock issuable upon conversion of the Series 3 Preferred
Stock or exercise of the Warrants, Rule 144 (the "Rule")
promulgated under the Act requires, among other conditions, a two-
year holding period following full payment of the consideration
therefor prior to the resale (in limited amounts) of securities
acquired in a nonpublic offering without having to satisfy the
registration requirements under the Act. The Subscriber
understands that the Company makes no representation or warranty
regarding its fulfillment in the future of any reporting
requirements under the Exchange Act, or its dissemination to the
public of any current financial or other information concerning the
Company, as is required by the Rule as one of the conditions of its
availability. The Subscriber understands and hereby acknowledges
that the Company is under no obligation to register the Securities
or the Conversion Shares or the Warrant Shares under the Act, with
the exception that the Company is obligated to provide those
registration rights set forth in Section 5 hereof. The Subscriber
consents that the Company may, if it desires, permit the transfer
of the Securities or issuable upon exercise thereof out of its name
only when its request for transfer is accompanied by an opinion of
counsel reasonably satisfactory to the Company that neither the
sale nor the proposed transfer results in a violation of the Act or
any applicable state "Blue Sky" laws (collectively, "Securities
Laws"). The Subscriber agrees to hold the Company and its
directors, officers and controlling persons and their respective
heirs, representatives, successors and assigns harmless and to
indemnify them against all liabilities, costs and expenses incurred
by them as a result of any misrepresentation made by the Subscriber
contained herein or any sale or distribution by the Subscriber in
violation of any Securities Laws.
g. Sophisticated Investor. That (i) the Subscriber has
adequate means of providing for the Subscriber's current financial
needs and possible contingencies and has no need for liquidity of
the Subscriber's investment in the Securities; (ii) the Subscriber
is able to bear the economic risks inherent in an investment in the
Securities and that an important consideration bearing on its
ability to bear the economic risk of the purchase of Securities is
whether the Subscriber can afford a complete loss of the
Subscriber's investment in the Securities and the Subscriber
represents and warrants that the Subscriber can afford such a
complete loss; and (iii) the Subscriber has such knowledge and
experience in business, financial, investment and banking matters
(including, but not limited to, investments in restricted, non-
listed and non-registered securities) that the Subscriber is
capable of evaluating the merits, risks and advisability of an
investment in the Securities.
h. SEC Filing. The Subscriber acknowledges that it has
been previously furnished with true and complete copies of the
following documents which have been filed with the SEC pursuant to
Sections 13(a), 14(a), 14(c) or 15(d) of the Exchange Act since
January 1, 1996, and that such have been furnished to the
Subscriber a reasonable time prior to the date hereof:
i. the Company's Form 10-K for the year ended
December 31, 1995;
ii. the Company's Form 10-Q for the quarter ended
March 31, 1996;
iii. the Company's Form 8-K, dated February 27,
1996; and,
iv. the Company's Form 8-K, dated March 8, 1996.
The Subscriber acknowledges having further received from the
Company the Company's unaudited consolidated financial statements
for the months of April and May, 1996.
i. Documents, Information and Access. That (i)
Subscriber's decision to purchase the Securities is not based on
any promotional, marketing or sales materials, and (ii) Subscriber
and its representatives have been afforded, prior to purchase
thereof, the opportunity to ask questions of, and to receive
answers from, the Company and its management, and has had access to
all documents and information which Subscriber deems material to an
investment decision with respect to the purchase of Securities
hereunder.
j. No Registration, Review or Approval. The Subscriber
acknowledges and understands that the limited private offering and
sale of Securities pursuant to this Agreement has not been reviewed
or approved by the SEC or by any state securities commission,
authority or agency, and is not registered under the Act or under
the securities or "blue sky" laws, rules or regulations of any
state. The Subscriber acknowledges, understands and agrees that
the Shares are being offered and sold hereunder pursuant to (i) a
private placement exemption to the registration provisions of the
Act pursuant to Section 3(b) or Section 4(2) of such Act and
Regulation D promulgated under such Act) and (ii) a similar
exemption to the registration provisions of applicable state
securities laws.
k. Transfer Restrictions. That Subscriber will not
transfer any Securities purchased under this Agreement unless such
Securities are registered under the Act and under any applicable
state securities or "blue sky" laws (collectively, the "Securities
Laws"), or unless an exemption is available under such Securities
Laws, and the Company may, if it chooses, where an exemption from
registration is claimed by such Subscriber, condition any transfer
of Securities out of such Subscriber's name on an opinion of the
Company's counsel, to the effect that the proposed transfer is
being effected in accordance with, and does not violate, an
applicable exemption from registration under the Securities Laws,
or an opinion of counsel to the Subscriber, which opinion is
satisfactory to the Company, to the effect that registration under
the Act is not required in connection with such sale or transfer
and the reasons therefor.
l. No Short Sale. Subscriber expressly agrees that
until such time that it has sold all of the Securities and/or all
of the Conversion Shares and Warrant Shares that it shall not,
directly or indirectly, through an affiliate (as that term is
defined under Rule 405 promulgated under the Act) or by, with or
through an unrelated third party or entity, whether or not pursuant
to a written or oral understanding, agreement, arrangement scheme,
or artifice of nature whatsoever, engage in the short selling of
the Company's Common Stock or any other equity securities of the
Company, whether now existing or hereafter issued, or engage in any
other activity of any nature whatsoever that has the same effect as
a short sale, or is a de facto or de jure short sale, of the
Company's Common Stock or any other equity security of the Company,
whether now existing or hereafter issued, including, but not
limited to, the sale of any rights pursuant to any understanding,
agreement, arrangement, scheme or artifice of any nature
whatsoever, whether oral or in writing, relative to the Company's
Common Stock or any other equity securities of the Company whether
now existing or hereafter created.
m. Reliance. Subscriber understands and acknowledges that
the Company is relying upon all of the representations, warranties,
covenants, understandings, acknowledgements and agreements
contained in this Agreement in determining whether to accept this
subscription, sell and issue the Securities to the Subscriber.
n. Accuracy or Representations and Warranties. That all of
the representations, warranties, understandings and acknowledgments
that Subscriber has made herein are true and correct in all
material respects as of the date of execution hereof, and that
Subscriber will perform and comply fully in all material respects
with all covenants and agreements set forth herein, and Subscriber
covenants and agrees that until the acceptance of this Agreement by
the Company, Subscriber shall inform the Company immediately in
writing of any changes in any of the representations or warranties
provided or contained herein.
o. Indemnity. Subscriber hereby agrees to indemnify and
hold harmless the Company, and the Company's successors and
assigns, from, against and in all respects of any demands, claims,
actions or causes of action, assessments, liabilities, losses,
costs, damages, penalties, charges, fines or expenses (including,
without limitation, interest, penalties, and attorney and
accountants' fees, disbursements and expenses), arising out of or
relating to any breach by Subscriber of any representations,
warranty, covenant or agreement made by Subscriber in this
Agreement. Such right to indemnification shall be in addition to
any and all other rights of the Company under this Agreement or
otherwise, at law or in equity.
p. Survival. Subscriber expressly acknowledges and agrees
that all of its representations, warranties, agreements and
covenants set forth in this Agreement shall be of the essence
hereof and shall survive the execution, delivery and Closing of
this Agreement, the sale and purchase of the Securities, the
conversion of the Series 3 Preferred Stock, exercise of the
Warrants, and the sale of the Conversion Shares and the Warrant
Shares.
4. Representations, Warranties and Covenants of the Company.
In order to induce Subscriber to enter into this Agreement and to
purchase the Securities, the Company hereby represents, warrants
and covenants to Subscriber as follows:
a. Organization, Authority, Qualification. The Company
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. The Company has
full corporate power and authority to own and operate its
properties and assets and to conduct and carry on its business as
it is now being conducted and operated.
b. Authorization. The Company has full power and
authority to execute and deliver this Agreement and to perform its
obligations under and consummate the transactions contemplated by
this Agreement. Upon the execution of this Agreement by the
Company and delivery of the Securities, this Agreement shall have
been duly and validly executed and delivered by the Company and
shall constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms. It is recognized that if all of the Company's presently
outstanding warrants are exercised, the Company may not have
sufficient shares of Common Stock duly authorized by its
Certificate of Incorporation to issue shares of Common Stock upon
the exercise of the Warrants by the Subscriber. As a result, the
Company represents and warrants that it will propose to its
shareholders at the Company's next annual meeting to increase, and
will use its reasonable efforts to have approved by its
shareholders, the number of authorized shares of Common Stock so
that the Company will have sufficient authorized shares of Common
Stock to issue upon the exercise of all of its outstanding warrants
and the Warrants.
c. Ownership of, and Title to, Securities; Exemption
from Registration.
i. The Securities to be purchased by the
Subscriber are, and all Conversion Shares and
Warrant Shares, when issued, will be, duly
authorized, validly issued, fully paid and
nonassessable shares of the capital stock of
the Company, free of personal liability. Upon
consummation of the purchase of the Securities
(and upon the exercise of the Warrants and
conversion of the Preferred Stock, in whole or
in part) pursuant to this Agreement, the
Subscriber will own and acquire title to the
Securities (and the Warrant Shares and the
Conversion Shares, as the case may be) free
and clear of any and all proxies, voting
trusts, pledges, options, restrictions, or
other legal or equitable encumbrance of any
nature whatsoever (other than the restrictions
on transfer due to securities laws or as
otherwise provided for in this Agreement or
the Certificate of Designation).
ii. The Company represents and warrants that the
offer and sale of Securities to the Subscriber
in accordance with the terms and provisions of
this Agreement is being effected in accordance
with the Act pursuant to (i) a private
placement exemption to the registration
provisions of the Act pursuant to Section 3(b)
or 4(2) of such Act and Regulation D
promulgated under such Act.
d. Use of Proceeds from this Offering. The net
proceeds from the sale of the Series 3 Preferred Stock are
estimated to be approximately $5,187,500 after payment of placement
fees to brokers of $300,000 and legal fees and expenses of
approximately $12,500, but prior to any fees and expenses relating
to the registration of the Conversion Shares and the Warrant Shares
pursuant to the terms of Section 5 hereof. The Company intends to
utilize the net proceeds as follows: approximately $1,650,000 for
capital improvements at its various facilities, $1,770,000 to
purchase from the Subscriber 920,000 shares of the Company's Common
Stock owned by the Subscriber pursuant to Section 7 hereof, and the
balance to reduce outstanding trade payables and for general
working capital.
5. Registration Rights. In order to induce the Subscriber
to enter into this Agreement and purchase the Securities, the
Company hereby covenants and agrees to grant to the Subscriber the
rights set forth in this Section 5 with respect to the registration
of the Warrant Shares and the Conversion Shares.
a. Registration of Conversion Shares. Subject to the
terms of Section 5 hereof, the Company agrees that within forty-
five (45) days after the Closing hereof, it shall prepare and file
with the SEC, a registration statement and such other documents,
including a prospectus, as may be necessary in the opinion of
counsel for the Company in order to comply with the provisions of
the Act, so as to permit a public offering and sale of up to three
million six hundred sixty-six thousand (3,666,000) shares of Common
Stock issuable upon conversion of the Series 3 Preferred Stock,
plus shares of Common Stock, if any, issuable as payment of
dividends on the Series 3 Preferred Stock pursuant to the terms of
the Series 3 Preferred Stock. The Company shall use its reasonable
efforts to cause such registration statement to become effective at
the earliest possible date after filing. In connection with the
offering of such Common Stock registered pursuant to this Section
5, the Company shall take such actions as shall be reasonably
necessary to qualify the Common Stock covered by such registration
statement under such "blue sky" or other state securities laws for
offer and sale as shall be reasonably necessary to permit the
public offering and sale of shares of Common Stock covered by such
registration statement; provided, however, that the Company shall
not be required (i) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) to subject itself to taxation in
any such jurisdiction, or (iii) to consent to general service of
process in any such jurisdiction. It is expressly agreed that in
no event are any registration rights being granted to the Series 3
Preferred Stock itself, but only with respect to the underlying
Conversion Shares issuable upon exercise of the Series 3 Preferred
Stock.
b. Registration of Warrant Shares. The Company agrees
that, subject to the terms of Section 5 hereof, (i) on or before
December 1, 1996, that it shall prepare and file with the SEC a
registration statement and such other documents, including a
prospectus, as may be necessary, in the opinion of counsel for the
Company to comply with the provisions of the Act so as to permit a
public offering and sale of the Warrant Shares underlying the $2.00
Warrants and the $3.50 Warrants. The Company will use its
reasonable efforts to cause each of the aforementioned registration
statements covering the Warrant Shares to become effective at the
earliest possible date after the filing thereof. In connection
with the offering of any Warrant Shares registered pursuant to this
Section 5, the Company shall take such actions as shall be
necessary to qualify such "blue sky" under any applicable
securities laws for offer and sale as shall be reasonably necessary
to permit the public offering and sale of all the Subscriber's
Warrant Shares; provided, however, that the Company shall be
required (i) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) to subject itself to taxation in
any such jurisdiction, or (iii) to consent to general service of
process in any such jurisdiction. It is expressly agreed that in
no event are any registration rights being granted with respect to
the Warrants themselves, but only with respect to the underlying
Warrant Shares issuable upon exercise of the Warrants.
c. Current Registration Statement. Once effective, the
Company shall use its reasonable efforts to cause any registration
statement filed hereunder to remain current and effective for a
period of one (1) year or until the shares of Common Stock covered
by such registration statement are sold by the Subscriber,
whichever is less. The Subscriber shall promptly provide all such
information and materials and take all such action as may be
required in order to permit the Company to comply with all
applicable requirements of the SEC and to obtain any desired
acceleration of the effective date of such registration statement.
d. Penalty. The Company expressly agrees that in the
event that it does not file with the SEC the registration statement
relative to the Conversion Shares referred to in Section 5(a) above
within sixty (60) days after the date of the Closing, or the
Company does not file with the SEC a registration statement
relative to the Warrant Shares required to be filed in Section 5(b)
on or before December 1, 1996, in accordance with Section 5(b)
above, then, for each day thereafter until the Company files such
registration statement with the SEC, the Company agrees to pay to
the Subscriber a penalty of $1,000, payable in cash or Common Stock
of the Company at the Company's election. If the Company elects to
pay such penalty in Common Stock of the Company, the number of
shares of Common Stock to be issued per day to the Subscriber shall
be determined by dividing the $1,000 by the closing bid price of
the Company's Common Stock as reported on the over-the-counter
market for such day, or the closing sale price for such day if the
Company's Common Stock is listed on a national securities exchange.
e. Other Provisions. In connection with the offering
of any Conversion Shares and/or Warrant Shares registered pursuant
to this Section 5, the Company shall furnish to the Subscriber such
number of copies of any final prospectus as it may reasonably
request in order to effect the offering and sale of the Conversion
Shares and/or Warrant Shares to be offered and sold. In connection
with any offering of Conversion Shares and/or Warrant Shares
registered pursuant to this Section 5, the Company shall (x)
furnish to the underwriters (if any), at the Company's expense,
unlegended certificates representing ownership of the Conversion
Shares and/or Warrant Shares being sold in such denominations as
requested and (y) instruct any transfer agent and registrar of the
Preferred shares and/or Warrant Shares to release immediately any
stop transfer order, and to remove any restrictive legend, with
respect to Conversion Shares and/or Warrant Shares included in any
registration becoming effective pursuant to this Agreement.
f. Costs. Subject to the immediately following
sentence, the Company shall in all events pay and be responsible
for all fees, expenses, costs and disbursements associated with the
registration statement relating to the Conversion Shares and/or
Warrant Shares under this Section 5, including filing fees, fees,
costs and disbursements of any counsel, accountants and other
consultants representing the Company in connection therewith.
Notwithstanding anything set forth herein to the contrary,
Subscriber shall be responsible for any and all underwriting
discounts and commissions in connection with the sale of the
Conversion Shares and/or Warrant Shares pursuant hereto and all
fees of its legal counsel and other advisors retained in connection
with reviewing any registration statement.
g. Successors. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business, properties,
stock or assets of the Company, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place.
h. Indemnification.
i. The Company will indemnify and hold harmless
the Subscriber, its directors and officers,
and any underwriter (as defined in the Act)
for the Subscriber and each person, if any,
who controls the Subscriber or such
underwriter within the meaning of the Act,
from and against, and will reimburse the
Subscriber and each such underwriter and
controlling person with respect to, any and
all loss, damage, liability, cost and expense
to which such holder or any such underwriter
or controlling person may become subject under
the Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are
caused by any untrue statement or alleged
untrue statement of any material fact
contained in such registration statement, any
prospectus contained therein or any amendment
or supplement 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, in light of the
circumstances in which they were made not
misleading; provided, however, that the
Company will not be liable in any such case to
the extent that any such loss, damage,
liability, cost or expense arises out of, or
is based upon, an untrue statement or alleged
untrue statement or omission or alleged
omission so made in conformity with
information furnished by the Subscriber, such
underwriter or such controlling person in
writing specifically for use in the
preparation thereof.
ii. The Subscriber will indemnify and hold
harmless the Company, its directors and
officers, any controlling person and any
underwriter from and against, and will
reimburse the Company, its directors and
officers, any controlling person and any
underwriter with respect to, any and all loss,
damage, liability, cost or expense to which
the Company or any controlling person and/or
any underwriter may become subject under the
Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are
caused by any untrue statement or alleged
untrue statement of any material fact
contained in such registration statement, any
prospectus contained therein or any amendment
or supplement 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, in light of the
circumstances in which they were made, not
misleading, in each case to the extent, but
only to the extent, that such untrue statement
or alleged untrue statement or omission or
alleged omission was so made in reliance upon,
and in strict conformity with, written
information furnished by, or on behalf of, the
Subscriber specifically for use in the
preparation thereof.
iii. Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (i) or
(ii) of this Section 5(h) of notice of the
commencement of any action involving the
subject matter of the foregoing indemnity
provisions, such indemnified party will, if a
claim thereof is to be made against the
indemnifying party pursuant to the provisions
of said paragraph (i) or (ii), promptly notify
the indemnifying party of the commencement
thereof; but the omission to so notify the
indemnifying party will not relieve it from
any liability which it may have to any
indemnified party otherwise than hereunder.
In case such action is brought against any
indemnified party and it notifies the
indemnifying party of the commencement
thereof, the indemnifying party shall have the
right to participate in, and, to the extent
that it may wish, assume the defense thereof;
or, if there is a conflict of interest which
would prevent counsel for the indemnifying
party from also representing the indemnified
party, the indemnified parties have the right
to select only one (1) separate counsel to
participate in the defense of such action on
behalf of all such indemnified parties. After
notice from the indemnifying parties to such
indemnified party of the indemnifying parties'
election so to assume the defense thereof, the
indemnifying parties will not be liable to
such indemnified parties pursuant to the
provisions of said paragraph (i) or (ii) for
any legal or other expense subsequently
incurred by such indemnified parties in
connection with the defense thereof, other
than reasonable costs of investigation, unless
(i) the indemnified parties shall have
employed counsel in accordance with the
provisions of the preceding sentence; (ii) the
indemnifying parties shall not have employed
counsel satisfactory to the indemnified
parties to represent the indemnified parties
within a reasonable time after the notice of
the commencement of the action or (iii) the
indemnifying party has authorized the
employment of counsel for the indemnified
party at the expense of the indemnifying
parties.
6. Securities Legends and Notices. Subscriber represents
and warrants that it has read, considered and understood that the
following legends, substantially in the form and substance set
forth below, shall be placed on all of the certificates
representing the Preferred Stock and Warrants:
(i) NEITHER THIS PREFERRED STOCK NOR ANY SHARES OF
COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS
PREFERRED STOCK HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS. THIS
PREFERRED STOCK AND THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS PREFERRED STOCK 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 WITHOUT THE PRIOR WRITTEN CONSENT OF PERMA-FIX
ENVIRONMENTAL SERVICES, INC. AND AN OPINION OF PERMA-FIX
ENVIRONMENTAL SERVICES, INC.'S COUNSEL, OR AN OPINION
FROM COUNSEL FOR THE HOLDER HEREOF, WHICH OPINION IS
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION AND
QUALIFICATION IS NOT REQUIRED UNDER APPLICABLE FEDERAL
AND STATE SECURITIES LAWS OR AN EXEMPTION THEREFROM.
NOTWITHSTANDING THE FOREGOING, THE SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION ARE ALSO SUBJECT TO THE
REGISTRATION RIGHTS SET FORTH IN THAT CERTAIN
SUBSCRIPTION AND PURCHASE AGREEMENT BY AND BETWEEN THE
HOLDER HEREOF AND THE COMPANY, A COPY OF WHICH IS ON FILE
AT THE COMPANY'S PRINCIPAL EXECUTIVE OFFICE.
(ii) 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 WITHOUT THE PRIOR WRITTEN CONSENT
OF PERMA-FIX ENVIRONMENTAL SERVICES, INC. AND AN OPINION
OF PERMA-FIX ENVIRONMENTAL SERVICES, INC.'S COUNSEL, OR
AN OPINION FROM COUNSEL FOR THE HOLDER HEREOF, WHICH
OPINION IS SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT REQUIRED UNDER
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR AN
EXEMPTION THEREFROM.
NOTWITHSTANDING THE FOREGOING, THE SHARES ISSUABLE
UPON EXERCISE 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.
7. Purchase of Common Stock. The Subscriber has previously
acquired from the Company, pursuant to the terms of Regulation S
promulgated under the Act, the Company's Series 1 Class A Preferred
Stock, par value $.001 per share ("Series 1 Preferred"), and the
Company's Series 2 Class B Convertible Preferred Stock, par value
$.001 per share ("Series 2 Preferred"). The Subscriber initially
acquired from the Company 1,100 shares of Series 1 Preferred and
330 shares of Series 2 Preferred, and, as of the date hereof, the
Subscriber has converted 722 shares of such Series 1 Preferred into
Common Stock pursuant to the terms of such Series 1 Preferred and
has not converted into Common Stock any shares of Series 2
Preferred. As of the date of this Agreement, the Subscriber owns
of record and beneficially all of the issued and outstanding shares
of Series 1 Preferred and Series 2 Preferred, which is 378 shares
of Series 1 Preferred and 330 shares of Series 2 Preferred. At the
Closing the Subscriber shall convert all of the outstanding shares
of Series 1 Preferred and Series 2 Preferred into Common Stock of
the Company pursuant to the terms, provisions, restrictions and
conditions of the Series 1 Preferred and Series 2 Preferred. The
Company shall purchase from the Subscriber from the net proceeds
received by the Company from the sale of the Series 3 Preferred
Stock, and the Subscriber shall sell, transfer and assign to the
Company, free and clear of any and all liens, encumbrances, claims,
demands, security interests or restrictions, within ten (10)
business days after the Closing, 920,000 shares of Common Stock
upon the following terms and conditions:
a. The Company shall purchase 920,000 shares of Common
Stock of the Company owned by the Subscriber for a total price for
all such 920,000 shares of Common Stock of $1,770,000 (the
"Purchase Price");
b. The Subscriber shall surrender to the Company or its
counsel the certificates representing the 920,000 shares of Common
Stock of the Company, duly endorsed by the Subscriber to the
Company. Within the said ten (10) business days after the Closing
and upon receipt of the certificates representing the 920,000
shares of Common Stock of the Company ownedby the Subscriber, duly
endorsed by the Subscriber to the Company and free and clear of any
and all liens, encumbrances, claims, demands, security interests or
restrictions, the Company shall deliver to ARN Amro New York, ABA
No.: 02609580, swift code ABNAU533, for ABN Amro Vienna acc. no.
673-U-012203-41 for further credit RBB Bank, acc. no. 222-27008,
the purchase price of $1,770,000.
8. Miscellaneous.
a. Amendment; Waiver. Neither this Agreement nor the
Warrants shall be changed, modified or amended in any respect
except by the mutual written agreement of the parties hereto. Any
provision of this Agreement or the Warrants may be waived in
writing by the party which is entitled to the benefits thereof. No
waiver of any provision of this Agreement or the Warrants shall be
deemed to, or shall constitute a waiver of, any other provision
hereof or thereof (whether or not similar), nor shall nay such
waiver constitute a continuing waiver.
b. Binding Effect; Assignment. Neither this Agreement
nor the Warrants, or any rights or obligations hereunder or
thereunder, are assignable by the Subscriber.
c. Governing Law; Litigation Costs. This Agreement and
its validity, construction and performance shall be governed in all
respects by the internal laws of the State of Delaware without
giving effect to such State's conflicts of laws provisions. Each
of the Company and the Subscriber expressly and irrevocably consent
to the jurisdiction and venue of the federal courts located in
Wilmington, Delaware. Each of the parties agrees that in the event
either party brings an action to enforce any of the provisions of
this Agreement or to recovery for an alleged breach of any of the
provisions of this Agreement, each party shall be responsible for
its own legal costs and disbursements during the pendency of any
such action; provided, however, that after any such action has been
reduced to a final, unappealable judgment, the prevailing party
shall be entitled to recover from the other party all reasonable,
documented attorneys' fees and disbursements and court costs from
the other party.
d. Severability. Any term or provisions of this
Agreement or the Warrants which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction only, be
ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof or thereof affecting the validity or enforceability of such
provision in any other jurisdiction.
e. Headings. The captions, headings and titles
preceding the text of each or any Section, subsection or paragraph
hereof are for convenience of reference only and shall not affect
the construction, meaning or interpretation of this Agreement or
the Warrants or any term or provisions hereof or thereof.
f. Counterparts. This Agreement may be executed in one
or more original or facsimile counterparts, each of which shall be
deemed an original and all of which shall be considered one and the
same agreement, binding on all of the parties hereto,
notwithstanding that all parties are not signatories to the same
counterpart. Upon delivery of an executed counterpart by the
undersigned Subscriber to the Company, which in turn is executed
and delivered by the Company, this Agreement shall be binding as
one original agreement between Subscriber and the Company.
g. Transfer Taxes. Each party hereto shall pay all
such sales, transfer, use, gross receipts, registration and similar
taxes arising out of, or in connection with, the transactions
contemplated by this Agreement and the Warrants (collectively, the
"Transfer Taxes") as are payable by such party under applicable
law, and the Company shall pay the cost of any documentary stock
transfer stamps, if any, to be affixed to the certificates
representing the Shares and any Warrant Shares to be sold.
h. Entire Agreement. This Agreement, along with the
Warrants and the Certificate of Designations, merges and supersedes
any and all prior agreements, understandings, discussions,
assurances, promises, representations or warranties among the
parties with respect to the subject matter hereof, and contains the
entire agreement among the parties with respect to the subject
matter set forth herein and therein.
i. No Brokers. Except with respect to J. W. Charles
Securities, Inc. and J. P. Carey Enterprises, Inc., each of the
parties hereto represents and warrants to the other than there are
no broker's, finder's or any other similar fees and commissions due
or payable with respect to the sale of the Securities by the
Company to the Subscriber and each of the parties hereby agrees to
indemnify and hold harmless the other with respect to such
representation and warranty and any breach thereof. The Company
expressly acknowledges and agrees that it shall be solely
responsible for all fees and commissions payable to J. W. Charles
Securities, Inc. and J. P. Carey Enterprises, Inc., in connection
with the sale of the Securities by the Company to the Subscriber
pursuant to this Agreement.
j. Authority; Enforceability. The Subscriber is duly
authorized to enter into this Agreement and to perform all of its
obligations hereunder. Upon the execution and delivery of this
Agreement by the Subscriber, this Agreement shall be enforceable
against the Subscriber in accordance with its terms.
k. 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 by 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 (i) on the business day actually received if given by
hand or by fax, (ii) on the business day immediately subsequent to
mailing, if sent by U.S. Express Mail service or private overnight
mail service, or (iii) 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 9(k):
If to the Company: Dr. Louis F. Centofanti
Perma-Fix Environmental
Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32606-1649
Fax No.: (352) 373-0040
with copies simultaneously Irwin H. Steinhorn, Esquire
by like means to: Conner & Winters
One Leadership Square, Suite 1700
211 North Robinson
Oklahoma City, Oklahoma 73102
Fax No.: (405) 232-2695
If to the Subscriber: Herbert Strauss
RBB Bank Aktiengesellschaft
Burgring 16, 8010 Graz, Austria
Fax No.: 011-43-316-8072 ext. 392
l. No Third Party Beneficiaries. This Agreement and the
rights, benefits, privileges, interests, duties and obligations
contained or referred to herein shall be solely for the benefit of
the parties hereto and no third party shall have any rights or
benefits hereunder as a third party beneficiary or otherwise
hereunder.
m. Public Announcements. Neither Subscriber nor any
officer, director, stockholder, employee, affiliate or affiliated
person or entity of Subscriber, shall make or issue any press
releases or otherwise make any public statements or make any
disclosures to any third person or entity with respect to the
transactions contemplated herein and will not make or issue any
press releases or otherwise make any public statements of any
nature whatsoever with respect to the Company without the express
prior approval of the Company.
IN WITNESS WHEREOF, the Company and the undersigned
Subscriber have each duly executed this Agreement as of this 17th
day of July, 1996.
PERMA-FIX ENVIRONMENTAL
SERVICES, INC.
By /s/ Louis Centofanti
____________________________
Dr. Louis F. Centofanti
Chief Executive Officer
RBB BANK AKTIENGESELLSCHAFT
By /s/ Herbert Strauss
____________________________
Herbert Strauss
Title: Headtrader
ISTE:\N-P\PESI\10Q\696\EXHIBIT4.4