THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE HAVE
NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") OR THE SECURITIES COMMISSION OF ANY
STATE PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SECTION 4(2)
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT")
AND/OR REGULATION D PROMULGATED UNDER THE 1933 ACT. THIS WARRANT
AND THE SECURITIES TO BE ISSUED UPON ITS EXERCISE MAY NOT BE SOLD,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS REGISTERED
UNDER THE 1933 ACT, OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE AND IN THE CASE OF AN EXEMPTION, ONLY IF THE COMPANY HAS
RECEIVED AN OPINION FROM COUNSEL SATISFACTORY TO THE COMPANY THAT
SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION OF THE SECURITIES.
THIS WARRANT SHALL NOT CONSTITUTE AN OFFER TO SELL NOR A
SOLICITATION TO BUY THE WARRANT OR THE SECURITIES TO BE ISSUED UPON
ITS EXERCISE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION WOULD BE UNLAWFUL.
COMMON STOCK PURCHASE WARRANT
No. 2
TO PURCHASE 200,000 SHARES OF COMMON STOCK OF
PERMA FIX ENVIRONMENTAL SERVICES, INC.
THIS CERTIFIES that, for value received, RBB Bank
Aktiengesellschaft, organized under the laws of Austria and located
in Austria (the "Investor"), is entitled, upon the terms and
subject to the conditions hereinafter set forth, at any time on or
after June 30th, 1998 and on or prior to June 30th, 2001 (the
"Termination Date") but not thereafter, to subscribe for and
purchase from PERMA FIX ENVIRONMENTAL SERVICES, INC., a corporation
incorporated in the State of Delaware (the "Company"), two hundred
thousand (200,000) shares (the "Warrant Shares") of Common Stock,
$.001 par value per share, of the Company (the "Common Stock").
The exercise price of one share of Common Stock (the "Exercise
Price") under this Warrant shall be equal to $1.875. The Exercise
Price and the number of shares for which the Warrant is exercisable
shall be subject to adjustment as provided herein. This Warrant is
being issued in connection with the Private Securities Subscription
Agreement dated June 30th, 1998 (the "Agreement") between the
Company and the Investor.
1. Title of Warrant. Prior to the expiration hereof and subject
to compliance with applicable laws, this Warrant and all rights
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hereunder are transferable, in whole or in part, at the office or
agency of the Company by the holder hereof in person or by duly
authorized attorney, upon surrender of this Warrant together with
the Assignment Form annexed hereto properly endorsed, subject to
the 1933 Act and applicable state securities laws.
2. Authorization of Shares. The Company covenants that all
shares of Common Stock which may be issued upon the exercise of
rights represented by this Warrant will, upon exercise of the
rights represented by this Warrant and full payment of the Exercise
Price multiplied by the number of Warrant Shares to be purchased,
be duly authorized, validly issued, fully paid and nonassessable
and free from all taxes, liens and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue).
3. Exercise of Warrant. (a) Upon presentation and surrender of
this Warrant and the Notice of Exercise Form annexed hereto duly
executed by the Investor, at the office of the Company (or such
other office or agency of the Company as it may designate by notice
in writing to the registered holder hereof at the address of such
holder appearing on the books of the Company) and upon payment of
the Exercise Price multiplied by the number of Warrant Shares
thereby purchased; whereupon the holder of this Warrant shall be
entitled to receive a certificate for the number of shares of
Common Stock so purchased. Certificates for shares purchased
hereunder shall be delivered to the holder hereof within six (6)
business days after the date on which this Warrant shall have been
exercised as aforesaid. Payment of the Exercise Price may be by
certified check or cashier's check or by wire transfer to an
account designated by the Company in an amount equal to the
Exercise Price multiplied by the number of Warrant Shares
("Aggregate Exercise Price").
(b) Shareholder Approval. In connection with the transactions
pursuant to which the Company is issuing this Warrant, the Company
is also issuing (i) to the Investor certain shares of a new series
of Preferred Stock designated as Series 10 Class J Convertible
Preferred Stock ("Preferred Stock"), which is convertible into
Common Stock pursuant to the terms thereof pursuant to the terms of
the Agreement, dated June 30th, 1998, (the "Agreement"), and (ii)
certain warrants to Liviakis Financial Communications, Inc.
("Liviakis") and Robert B. Prag (collectively the "Liviakis
Warrants") providing for the purchase of up to an aggregate of
2,500,000 shares of Common Stock pursuant to the terms of that
certain Placement and Consulting Agreement dated June 30th, 1998
between the Corporation and Liviakis ("Liviakis Consulting
Agreement").
If (i) the aggregate number of shares of Common Stock issued by the
Company as a result of (a) conversion of the Preferred Stock, (b)
payment of dividends accrued on the Preferred Stock, (c) exercise
of this Warrant and (d) exercise of the Liviakis Warrants, exceeds
2,388,347 shares of Common Stock (which equals 19.9% of the
outstanding shares of Common Stock of the Company as of the date of
this Warrant) and (ii) the Investor has converted or elects to
convert any of the then outstanding shares of Preferred Stock
pursuant to the terms of the Preferred Stock at a Conversion Price
(as defined in the Certificate of Designations) less than $1.875
($1.875 being the market value per share of Common Stock as quoted
on the NASDAQ as of the close of business on June 30th, 1998)
pursuant to the terms of the Preferred Stock, other than if the
Conversion Price is less than $1.875 solely as a result of the
anti-dilution provisions of the Preferred Stock, then,
notwithstanding anything in this Warrant to the contrary,
thereafter the Company shall not issue any shares of Common Stock
as a result of the exercise of this Warrant unless and until the
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Company shall have obtained approval of its shareholders of the
transactions referenced to in the Agreement and the Liviakis
Consulting Agreement pursuant to requirements of subparagraph
(25)(H)(i)d, (iv) and (v) of Rule 4310 of the NASDAQ Marketplace
Rules ("Shareholder Approval").
If Shareholder Approval is required as set forth in the above
paragraph, the Company shall take all practicable steps to obtain
such Shareholder Approval within ninety days of the event
triggering the need for Shareholder Approval. The Company and the
Holder covenant to vote all shares of Common Stock over which they
have voting control in favor of such Shareholder Approval.
4. No Fractional Shares or Script. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of
this Warrant. Fractional Shares shall be rounded down to the
nearest whole shares of Common Stock.
5. Charges, Taxes and Expenses. Issuance of certificates for
shares of Common Stock upon the exercise of this Warrant shall be
made without charge to the holder hereof for any issue or transfer
tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the
Company, and such certificates shall be issued in the name of the
holder of this Warrant or in such name or names as may be directed
by the holder of this Warrant; provided, however, that in the event
certificates for shares of Common Stock are to be issued in a name
other than the name of the holder of this Warrant, this Warrant
when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof,
and provided further, that upon any transfer involved in the
issuance or delivery of any certificates for shares of Common
Stock, the Company may require, as a condition thereto, the payment
of a sum sufficient to reimburse it for any transfer tax incidental
thereto.
6. Closing of Books. Unless otherwise required by law or the
principal trading market for the Company's Common Stock, the
Company will not close its shareholder books or records in any
manner which prevents the timely exercise of this Warrant for a
period of time in excess of five (5) trading days per year.
7. No Rights as Shareholder until Exercise. This Warrant does
not entitle the holder hereof to any voting rights or other rights
as a shareholder of the Company prior to the exercise thereof.
Upon the surrender of this Warrant and the payment of the Aggregate
Exercise Price determined by multiplying the Exercise Price by the
number of Warrant Shares so purchased, the Warrant Shares so
purchased shall be, and be deemed to be, issued to such holder as
the record owner of such shares as of the close of business on the
later of the date of such surrender or payment.
8. Assignment and Transfer of Warrant. This Warrant may be
assigned by the surrender of this Warrant and the Assignment Form
annexed hereto duly executed at the office of the Company (or such
other office or agency of the Company as it may designate by notice
in writing to the registered holder hereof at the address of such
holder appearing on the books of the Company); provided, however,
that the Company may require, as a condition thereto, the payment
of a sum sufficient to reimburse it for any expenses of transfer
incidental thereto and that this Warrant may not be resold or
otherwise transferred except (i) in a transaction registered under
3
the Securities Act of 1933 (the "Securities Act"), or (ii) in a
transaction pursuant to an exemption, if available, from such
registration and an opinion of counsel reasonably satisfactory to
counsel for the Company is obtained by the holder of this Warrant
to the effect that the transaction is so exempt.
9. Loss, Theft, Destruction or Mutilation of Warrant. The
Company represents and warrants that upon receipt by the Company of
evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant certificate or any stock
certificate relating to the Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably
satisfactory to it, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated,
the Company will make and deliver a new Warrant or stock
certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
10. Saturdays, Sundays, Holidays, etc. If the last or appointed
day for the taking of any action or the expiration of any right
required or granted herein shall be a Saturday, Sunday or a legal
holiday in the State of New York, then such action may be taken or
such right may be exercised on the next succeeding day not a legal
holiday.
11. Effect of Certain Events.
(a) If at any time the Company proposes (i) to sell or otherwise
convey all or substantially all of its assets or (ii) to effect a
merger or consolidation of the Company in which the Company shall
not be the survivor (collectively, a "Sale or Merger Transaction"),
in which the consideration to be received by the Company or its
shareholders consists solely of cash, then the Warrant shall
terminate if the Warrant has not been exercised by the effective
date of such sale or merger transaction, and the Company shall give
the holder of this Warrant thirty (30) days notice of such
termination and of the proposed effective date of the Sale or
Merger transaction.
(b) In case the Company shall at any time effect a Sale or Merger
Transaction in which the consideration to be received by the
Company or its shareholders consists in whole or in part of
consideration other than cash, the holder of this Warrant shall
have the right thereafter to purchase, by exercise of this Warrant
and payment of the Aggregate Exercise Price in effect immediately
prior to such action, the kind and amount of shares and other
securities and property which it would have owned or have been
entitled to receive after the happening of such sale or merger
transaction had this Warrant been exercised immediately prior
thereto.
12. Adjustments of Exercise Price and Number of Warrant Shares.
The number and kind of securities purchasable upon the exercise of
this Warrant and the Exercise Price shall be subject to adjustment
from time to time upon the happening of any of the following.
In case the Company shall (i) declare or pay a dividend in shares
of Common Stock or make a distribution, without receipt of
consideration, in shares of Common Stock to holders of its
outstanding Common Stock, (ii) subdivide its outstanding shares of
Common Stock, (iii) combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock or (iv) issue any
shares of its capital stock in a reclassification of the Common
Stock, then the number of Warrant Shares purchasable upon exercise
of this Warrant immediately prior thereto shall be adjusted so that
4
the holder of this Warrant shall be entitled to receive the kind
and number of Warrant Shares or other securities of the Company
which he would have owned or have been entitled to receive had such
Warrant been exercised in advance thereof. Upon each such
adjustment of the kind and number of Warrant Shares or other
securities of the Company which are purchasable hereunder, the
holder of this Warrant shall thereafter be entitled to purchase the
number of Warrant Shares or other securities resulting from such
adjustment at an Exercise Price per such Warrant Share or other
security obtained by multiplying the Exercise Price in effect
immediately prior to such adjustment by the number of Warrant
Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing by the number of Warrant Shares or other
securities of the Company resulting from such adjustment. An
adjustment made pursuant to this paragraph shall become effective
immediately after the effective date of such event retroactive to
the record date, if any, for such event.
13. Voluntary Adjustment by the Company . The Company may at any
time during the term of this Warrant, reduce the then current
Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors of the Company.
14. Notice of Adjustment. Whenever the number of Warrant Shares
or number or kind of securities or other property purchasable upon
the exercise of this Warrant or the Exercise Price is adjusted, as
herein provided, the Company shall promptly mail by registered or
certified mail, return receipt requested, to the holder of this
Warrant notice of such adjustment or adjustments setting forth the
number of Warrant Shares (and other securities or property)
purchasable upon the exercise of this Warrant and the Exercise
Price of such Warrant Shares (and other securities or property)
after such adjustment, setting forth a brief statement of the facts
requiring such adjustment and setting forth the computation by
which such adjustment was made. Such notice, in absence of
manifest error, shall be conclusive evidence of the correctness of
such adjustment.
15. Authorized Shares. The Company covenants that during the
period the Warrant is outstanding, it will reserve from its
authorized and unissued Common Stock a sufficient number of shares
to provide for the issuance of the Warrant Shares upon the exercise
of any purchase rights under this Warrant. The Company further
covenants that its issuance of this Warrant shall constitute full
authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary
certificates for the Warrant Shares upon the exercise of the
purchase rights under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Warrant
Shares may be issued as 'provided herein without violation of any
applicable law or regulation, or of any requirements of prove the
NASDAQ Stock Market or any domestic securities exchange upon which
the Common Stock may be listed.
16. Registration Rights. The Company agrees that the Warrant
Shares shall have those registration rights as set forth in Section
10(a) of the Agreement. It is expressly acknowledged and agreed
that all references to Warrant Shares are to shares of Common Stock
issuable upon exercise of this Warrant, in whole or in part, from
time to time and at any time.
17. Miscellaneous.
5
(a) Issue Date, Jurisdiction. The provisions of this Warrant
shall be construed and shall be given effect in all respects as if
it had been issued and delivered by the Company on the date hereof.
This Warrant shall be binding upon any successors or assigns of the
Company. This Warrant shall constitute a contract under the laws
of the State of Delaware, without regard to its conflict of law,
principles or rules. This Agreement and any dispute, disagreement,
or issue of construction or interpretation arising hereunder
whether relating to its execution, its validity, the obligations
provided herein or performance shall be governed or interpreted
according to the internal laws of the State of Delaware without
regard to choice of law considerations. The federal courts located
in the State of Delaware shall have exclusive jurisdiction over any
cause or controversy arising under the terms of this Agreement or
between the parties as the result of any act taken or failure to
act not taken by either party pursuant to this Agreement.
(b) Restrictions. The holder hereof acknowledges that the Warrant
Shares acquired upon the exercise of this Warrant, if not
registered, will have restrictions upon resale imposed by state and
federal securities laws.
(c) Modification and Waiver. This Warrant and any provisions
hereof may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement
of the same is sought.
(d) Notices. Any notice, request or other document required or
permitted to be given or delivered to the holders hereof by the
Company shall be delivered or shall be sent by certified or
registered mail, postage prepaid, to each such holder at its
address as shown on the Books of the Company or to the Company at
the address set forth in the Agreement.
(e) Capitalized Terms. All capitalized terms not otherwise
defined herein shall have the meaning assigned to them in the
Agreement.
(d) Entire Agreement. This Warrant, together with all documents
referenced herein, embody the entire agreement and understanding
between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and
understandings relating to the subject matter hereof. No
statement, representation, warranty, covenant or agreement of any
kind not expressly set forth in this Agreement shall affect, or be
used to interpret, change or restrict, the express terms and
provisions of this Agreement.
18. Disposition of Warrants or Shares.
The Holder of this Warrant Certificate, by its acceptance thereof,
agrees that (a) no public distribution of Warrants or the Warrant
Shares will be made in violation of the provisions of the 1933 Act
(the "Act"), and (b) during such period as delivery of a prospectus
with respect to Warrants or Warrant Shares may be required by the
Act, no public distribution of Warrants or Warrant Shares will be
made in a manner or on terms different from those set forth in, or
without delivery of, a prospectus then meeting the requirements of
Section 10 of the Act and in compliance with all applicable state
securities laws, The Holder of this Warrant Certificate and each
transferee hereof further agrees that if any distribution of any of
the Warrants or Warrant Shares is proposed to be made by them
otherwise than by delivery of a prospectus meeting the requirements
of Section 10 of the Act, such action shall be taken only after
6
receipt by the Company of an opinion of its counsel, to the effect
that the proposed distribution will not be in violation of the Act
or of applicable state law. Furthermore, it shall be a condition
to the transfer of the Warrants that any transferee thereof deliver
to the Company his or its written agreement to accept and be bound
by all of the terms and conditions contained in this Warrant
Certificate,
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 hereunder, and
the Holder agrees that neither this Warrant Certificate nor any of
the Warrant Shares may be sold or transferred except under cover of
a registration statement under the Act which is effective and
current with respect to such Warrant Shares or pursuant to an
opinion of counsel reasonably satisfactory to the Company that
registration under the Act is not required in connection with such
sale or transfer. Any Warrant Shares issued upon exercise of this
Warrant shall bear a legend to the following effect:
The securities represented by this certificate have not
been registered under the Securities Act of 1933, as
amended ("the Act"), or qualified under applicable state
securities laws, and are restricted securities within the
meaning of the Act. Such securities may not be sold or
transferred, except pursuant to a registration statement
under such Act and qualification under applicable state
securities laws which are effective and current with
respect to such securities or pursuant to an opinion of
counsel reasonably satisfactory to the issuer of such
securities that registration and qualification are not
required under applicable federal or state securities
laws or an exemption is available therefrom.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officer thereunto duly authorized.
Dated: June 30th, 1998
PERMA FIX ENVIRONMENTAL SERVICES, INC.
Signature: /s/ Louis Centofanti
_____________________________________
Dr. Louis F. Centofanti, President
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