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3.1
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Procedure. Exercise
of the purchase rights represented by this Warrant may be made at any time
or times on or after the Initial Exercise Date and on or before the
Termination Date by satisfying each of the
following:
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(a)
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delivery
to the Company of a duly executed facsimile copy of the Notice of Exercise
Form attached hereto;
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(b)
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surrender
of this Warrant to the Company and receipt by the Company of this Warrant
within 10 days of the date the Notice of Exercise is delivered to the
Company;
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(c)
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receipt
by the Company of payment of the aggregate Exercise Price of the shares to
be purchased, with such payment made by wire transfer or cashier’s check
drawn on a United States bank;
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(d)
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receipt
by the Company of such written investment representations and warranties
by the Holder as the Company may reasonably request in accordance with
paragraph 7 of the Purchase
Agreement.
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3.2
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Issuance of Warrant
Shares. Certificates representing the shares of common
stock purchased hereunder will be delivered to the Holder within 10
Trading Days following the Exercise Date (“Warrant Share Delivery
Date”). The Warrant Shares shall be deemed to have been issued,
and Holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares for all purposes,
as of the date the Exercise Date. If the Company fails to
deliver to the Holder a certificate or certificates representing the
Warrant Shares pursuant to this paragraph 3.2 within 20 Trading Days
following the Warrant Share Delivery Date, then the Holder will have the
right to rescind such exercise. If this Warrant shall have been
exercised in part, the Company shall, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to Holder
a new Warrant evidencing the rights of Holder to purchase the unpurchased
Warrant Shares called for by this Warrant, which new Warrant shall in all
other respects be identical with this
Warrant.
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3.3
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Charges, Taxes and
Expenses. Issuance of certificates for Warrant Shares
shall be made without charge to the Holder 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 or in such
name or names as may be directed by the Holder; provided, however, that if
certificates for Warrant Shares are to be issued in a name other than the
name of the Holder, this Warrant when surrendered for exercise shall be
accompanied by the Assignment Form attached hereto duly executed by the
Holder; and the Company may require, as a condition thereto, the payment
of a sum sufficient to reimburse it for any transfer tax incidental
thereto.
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5.1
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Transfer. Subject
to compliance with any applicable securities laws and the conditions set
forth in paragraphs 1 and 5.4 hereof and to the provisions of paragraph
7.7 of the Purchase Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, upon surrender of this Warrant at the
principal office of the Company, together with a written assignment of
this Warrant substantially in the form attached hereto duly executed by
the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such
transfer. Promptly following such surrender and, if required,
such payment, the Company shall execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the denomination
or denominations specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant
not so assigned, and this Warrant shall promptly be
cancelled. A Warrant, if properly assigned, may be exercised by
a new holder for the purchase of Warrant Shares without having a new
Warrant issued.
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5.2
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Division;
Combination. This Warrant may be divided or combined
with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and
denominations in which new Warrants are to be issued, signed by the Holder
or its agent or attorney. Subject to compliance with paragraph
5.1, as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or
Warrants in exchange for the Warrant or Warrants to be divided or combined
in accordance with such notice.
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5.3
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Issuance;
Records. The Company shall prepare, issue and deliver at
its own expense (other than transfer taxes) the new Warrant or Warrants
under this paragraph 5. The Company agrees to maintain, at its
aforesaid office, books for the registration and the registration of
transfer of the Warrants.
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5.4
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Securities Laws
Compliance. If, at
the time of the surrender of this Warrant in
connection with any transfer of this Warrant, the transfer of this Warrant
shall not be registered pursuant to an effective registration statement under the Securities Act and
under applicable state securities or blue
sky laws, the Company may require, as a condition of allowing such
transfer, that:
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(a)
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the Holder or transferee of this Warrant, as the
case may be, furnish to the Company a written opinion of counsel (which
opinion shall be in form, substance and scope customary for opinions of
counsel in comparable transactions) to the effect that such transfer may
be made without registration under the Securities Act and under applicable state
securities or blue sky laws;
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(b)
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the holder or transferee execute and deliver to
the Company an investment letter in form and substance acceptable to the
Company; and
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(c)
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the transferee be an “accredited investor” as
defined in Rule 501 promulgated under the Securities Act or a qualified
institutional buyer as defined in Rule 144A under the Securities
Act.
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(a)
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pays
a dividend in shares of common stock or make a distribution in shares of
common stock to holders of its outstanding common
stock,
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(b)
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subdivides
its outstanding shares of common stock into a greater number of
shares,
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(c)
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combines
its outstanding shares of common stock into a smaller number of shares of
common stock, or
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(d)
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issues
any shares of its capital stock in a reclassification of the common
stock,
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14.1
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Jurisdiction/Venue. All
questions concerning the construction, validity, enforcement and
interpretation of this Warrant shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware,
without regard to the principles of conflicts of law
thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the state or
federal court of Delaware, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or inconvenient venue for such
proceeding.
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14.2
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Restrictions. The
Holder acknowledges that the Company has no obligation to register Warrant
Shares with the Securities and Exchange Commission or any state securities
agency, and 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.
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14.3
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Notices. Any
notice, request or other document required or permitted to be given or
delivered to the Holder by the Company shall be delivered in accordance
with the notice provisions of the Purchase
Agreement.
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14.4
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Limitation of
Liability. No provision of this Warrant, in the absence
of any affirmative action by Holder to exercise this Warrant or purchase
Warrant Shares, and no enumeration herein of the rights or privileges of
Holder, shall give rise to any liability of Holder for the purchase price
of any common stock or as a stockholder of the Company, whether such
liability is asserted by the Company or by creditors of the
Company.
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14.5
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Successors and
Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company and the
successors and permitted assigns of Holder. The provisions of
this Warrant are intended to be for the benefit of all Holders from time
to time of this Warrant and shall be enforceable by any such Holder or
holder of Warrant Shares.
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14.6
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Amendment. This
Warrant may be modified or amended or the provisions hereof waived with
the written consent of the Company and the
Holder.
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14.7
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Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision of this Warrant shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such
provisions or the remaining provisions of this
Warrant.
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14.8
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Headings. The
headings used in this Warrant are for the convenience of reference only
and shall not, for any purpose, be deemed a part of this
Warrant.
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PERMA-FIX
ENVIRONMENTAL SERVICES, INC.
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||
By:
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/s/Louis
Centofanti
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Name:
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Louis Centofanti
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Title:
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CEO
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(“PESI)
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||
/s/William N. Lampson
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||
WILLIAM
N. LAMPSON, an individual
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||
(the
“Holder”)
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[PURCHASER]
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By:
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Name:
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Title:
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Dated:
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