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.
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
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
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
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
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-
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
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
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
-9-
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
-10-
(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,
-11-
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
-12-
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
-13-
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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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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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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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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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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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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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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