Perma-Fix Environmental Services, Inc. Subscription Agreement for Private Placement of Units
This agreement is between Perma-Fix Environmental Services, Inc. and an investor subscribing to purchase units in a private placement. Each unit includes one share of common stock and one warrant to buy additional stock. The offering is subject to conditions such as a minimum number of units sold, completion of a preferred stock restructuring, and NASDAQ listing approval. Investors must pay $1.75 per unit, with special payment terms for large subscriptions. The agreement outlines procedures for acceptance, revocation, and refund if the offering does not close.
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
NAME OF SUBSCRIBER:______________________________________.
To: Perma-Fix Environmental Services, Inc.
1940 Northwest 67th Place
Gainesville, Florida 32653
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
SUBSCRIPTION AGREEMENT
1. Offering. Perma-Fix Environmental Services, Inc., a Delaware corporation (the "Company") desires to offer a minimum of 1,500,000 and a maximum of 5,000,000 units (the "Units"), in a private placement (the "Offering") on the terms and conditions set forth in this Subscription Agreement (the "Agreement"). Each Unit consists of one share of Common Stock of the Company, par value $.001 per share (the "Common Stock"), and one warrant to purchase Common Stock (a "Warrant"). Each Warrant entitles the Holder thereof to purchase one share of Common Stock of the Company for $1.75. The Warrants are in the form included in the Warrant Agreement (the "Warrant Agreement") attached as Exhibit B to the Company's Confidential Private Placement Memorandum, dated April 2001 (such memorandum, together with all amendments and supplements thereof and annexes and exhibits thereto, the "Memorandum").1.1 Placement Agent. One or more entities (the "Placement Agent") is or have been retained by the
Company as a non-exclusive placement agent for the offer and sale of the Units pursuant to the
terms of this Memorandum Offering on a "best efforts" basis.
1.2 Termination of Offering. This Offering will expire on the earlier to occur of (a) May 31, 2001 (the
"Termination Date"), or (b) the sale of all Units offered hereby. If subscriptions for the minimum
offering of 1,500,000 Units are not received by the Termination Date and the Preferred Stock
Restructuring (as defined in paragraph 1.3.2 below) has not been completed by the Termination
Date, the Offering will terminate and all funds will be returned by the Escrow Agent, without
any deduction or interest, as soon as practicable thereafter. Notwithstanding the foregoing,
the Company reserves the right to terminate this Offering and cancel this Agreement at any
time even if all conditions to Closing have been satisfied.
1.3 Conditions to Closing. Unless the following conditions have been satisfied prior to the
Termination Date, the Offering will terminate, and the Company's proposed sale of the Units
to the undersigned pursuant to the terms of this Agreement will not be completed:
1.3.1 The Company must have received and approved subscriptions for the purchase of at
least 1,500,000 Units (the "Minimum Offering"). The number of Units represented by
any promissory notes delivered in partial consideration of the subscription price of the
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Units pursuant to paragraph 3.1 of this Agreement will not be included in determining
whether the Minimum Offering has been reached until such promissory notes have
been paid in full;
1.3.2 The Preferred Stock Restructuring (as defined in this paragraph) must have been
completed. As of April 2, 2001, RBB Bank Aktiengesellschaft ("RBB Bank") owned
all shares of the Company's outstanding classes of Preferred Stock. The Company
and RBB Bank have an oral agreement in principal whereby RBB Bank will, among
other things, convert a portion of RBB Bank's outstanding Preferred Stock into
Common Stock and/or exchange all of RBB Bank's remaining Preferred Stock for a
new class of Preferred Stock. Such conversion and/or exchange is referred to as the
"Preferred Stock Restructuring." There are no assurances that the Company will be
able to complete the Preferred Stock Restructuring; and
1.3.3 The Company has received from the NASDAQ approval of the NASDAQ of the listing
of the Common Stock included in the units and the Common Stock issuable upon exercise
of the Warrants included in the units ("NASDAQ Listing Approval").
2. Subscription.
2.1 Agreement to Purchase. The undersigned, intending to be legally bound, hereby irrevocably
subscribes for and agrees to purchase the number of Units indicated on page 11 of this
Agreement, on the terms and conditions described in this Agreement and in the Memorandum.
The undersigned has previously received and reviewed the Memorandum.
2.2 Acceptance/Rejection of Subscription. The Company's acceptance of the undersigned's
subscription will be evidenced by the Company's execution of this Agreement. The Company
reserves the right to reject this subscription for the Units in whole or part, at its sole discretion,
at any time prior to the Closing (as defined in paragraph 3.2 hereof), notwithstanding prior
receipt by the undersigned of notice of acceptance of the undersigned's subscription.
2.3 Revocation. The undersigned may revoke this subscription by a written notice of revocation
sent by certified or registered mail, return receipt requested, which must be received by the
Company at its corporate headquarters at least two business days prior to the Closing.
2.4 Termination of Agreement. If the Company rejects this subscription, or if the sale of the
Units subscribed for by the undersigned is not consummated by the Company for any reason
(in which event this Agreement will be deemed to be rejected), this Agreement and any
other agreement entered into between the undersigned and the Company relating to this
subscription will thereafter have no force or effect, and the Company will promptly return or
cause to be returned to the undersigned the purchase price remitted to the Company by the
undersigned, without interest.
3. Payment of Purchase Price; Escrow. The purchase price to be remitted to the Company in exchange for the Units is $1.75 per Unit (the "Subscription Price"). Payment for the Units must be made by bank or certified check or wire transfer to an escrow account established by the Escrow Agent (as defined in paragraph 3.3 hereof) in accordance with the instructions of the Company, together with an executed copy of this Agreement and any other required documents. The Escrow Agent will hold all funds received from subscribers in a non-interest bearing account.
3.1 Subscribers of $3 Million of Units. If the total Subscription Price for the number of Units which the
undersigned has agreed to purchase under this Agreement is at least $3 million, then undersigned,
with the written approval of the Company, may pay two-thirds (2/3 rds) of the total Subscription
Price in cash and one-third (1/3rd) of the total Subscription Price by delivery to the Company
of a duly executed promissory note in the principal amount equal to one-third (1/3rd) of the
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total Subscription Price. The promissory note must be in the form attached as Exhibit C to the
Memorandum. The promissory note is non-interest bearing and provides that the principal
balance of the promissory note is due in full on or before 60 days following Closing. No partial payments of the promissory note will be accepted. The number of Units represented by any
promissory note will not be included in determining whether the Minimum Offering has been
reached until the promissory note is paid in full.
3.2 Closing. The closing (the "Closing") of the subscription contemplated by this Agreement,
following the acceptance by the Company of this Agreement, will take place at the offices of
_________________________________________or such other place as determined
by the Company, on such date as is set by the Company.
3.3 Escrow. SunTrust Bank, a Georgia Banking Corporation, and/or such other escrow agents
selected by a Placement Agent to hold the proceeds received due to the placement of units
by that particular Placement Agent and approved in writing the Company (individually the
"Escrow Agent" and collectively the "Escrow Agents") will hold all of the proceeds from the
Offering until subscriptions for the Minimum Offering (at least 1,500,000 Units representing
gross proceeds of approximately $2,531,250.00) have been received by the Escrow Agents
and accepted by the Company and has received written notice from the Company that the
conditions to closing set forth in Sections 1.3.2 and 1.3.3 have been complied with. The
number of Units and the amount of gross offering proceeds represented by any promissory
note delivered pursuant to paragraph 3.1 of this Agreement will not be included in determining
whether the Minimum Offering has been reached until such promissory note is paid in full.
When the Company notifies the Escrow Agents that subscriptions for the minimum number
of Units have been accepted and the other conditions to closing set forth in Section 1.3.2
and 1.3.3. hereof have been complied with, the Escrow Agents will release the subscription
funds to the Company and, as soon as practicable thereafter, the Company will deliver
certificates for the Units to the purchasers. If the Company thereafter accepts additional
subscriptions, these procedures will be repeated on one or more occasions (each, a "Closing").
3.4 Delivery of Units. Within 10 business days after the Closing of the purchase and sale of the
Units subscribed to by the undersigned, the Company will issue and deliver to the
undersigned the certificates for the Units to be issued and sold to the undersigned, duly
registered in the undersigned's name after payment in full by the undersigned of the aggregate
purchase price of the Units. Notwithstanding the foregoing, if the undersigned, with the written
approval of the Company, has delivered a promissory note in partial payment of the
Subscription Price pursuant to Section 3.1 hereof, the Company will issue and deliver to the
undersigned 2/3rds of the Units subscribed for within 10 business days after the Closing. Upon
payment in full of the promissory note, the Company will issue and deliver to the undersigned,
within 10 business days therefrom, the remaining Units to be issued and sold to the undersigned.
If the undersigned fails to pay the promissory note in full on or before its stated maturity date,
the remaining Units will not be issued to the undersigned, the undersigned's subscription as
to the remaining Units will be terminated, and the promissory note will be cancelled.
4. Registration Rights.
4.1 Registration. The Company hereby agrees to use reasonable efforts to file a Form S-3
Registration Statement or such other suitable registration statement acceptable to the Company
(the "Registration Statement") with the Securities and Exchange Commission ("SEC") within
150 days following the last Closing under the Offering to register the Common Stock included
in the Units and the Common Stock issuable upon exercise of the Warrants included in the
Units (together, the "Registrable Securities") under the Securities Act of 1933, as amended
(the "Act"), and the Company will use reasonable efforts to cause such registration to become
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effective within 90 days following the filing of the Registration Statement with the SEC and to
remain effective for six months after the effective date of the Registration Statement; provided
that the Company will not file any such Registration Statement within 60 days following the
last Closing. The Company will in connection therewith use reasonable efforts to also register
and qualify the Registrable Securities under the Blue Sky laws of such jurisdictions as the
Company reasonably determines are necessary. The obligation of the Company under this
Section 4.1 will be limited to one registration statement. The Company will pay the expenses
described in Section 4.3 for the Registration Statement filed pursuant to this Section 4.1,
except for underwriting discounts and commissions and legal fees of the holders of the
Units (the "Holders"), which shall be borne by such Holders.
4.2 Registration Procedures. To effect the registration of Registrable Securities under the Act
pursuant to the provisions of Section 4.1, the Company will:
4.2.1 Prepare and file with the SEC the Registration Statement with respect to the Registrable
Securities within 150 days following the final Closing, and use reasonable efforts to
cause such registration statement to become effective within 90 days following its
filing (but not less than 60 days after the last Closing) and cause the same to remain
effective for six months following its effective date;
4.2.2 Prepare and file with the SEC such amendments to the Registration Statement and
supplements to the prospectus contained therein and post-effective amendments thereto
as may be necessary to keep the Registration Statement effective for a period of six
months;
4.2.3 Furnish to the Holders participating in such registration such reasonable number of
copies of the Registration Statement, preliminary prospectus, final prospectus and such
other documents as may reasonably requested by such Holders;
4.2.4 Use reasonable efforts to register or qualify the securities covered by the Registration
Statement under such state securities or Blue Sky laws of such jurisdictions as the
Company may reasonably determine as necessary within 30 days following the original
filing of the Registration Statement, except that the Company will not for any purpose
be required to execute a general consent as to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so qualified to do
business; provided that the Company will execute a Form U-2 Consent to Service of
Process where required by the Blue Sky laws of a particular state;
4.2.5 Notify the Holders promptly when the Registration Statement has become effective
or when supplements thereto are filed;
4.2.6 Notify the Holders promptly of any material requests by the SEC related to the
Registration Statement's effectiveness;
4.2.7 Prepare and file with the SEC, promptly upon the request of any Holder, any amendments
or supplements to such Registration Statement or prospectus which, in the opinion of
counsel for such Holder (and concurred in by counsel for the Company), is required
under the Act or the rules and regulations thereunder in connection with the distribution
of Common Stock by such Holder; and
4.2.8 Advise such Holders, promptly after it will receive notice or obtain knowledge thereof,
of the issuance of any stop order by the SEC suspending the effectiveness of such
Registration Statement or the initiation or threatening of any proceeding for that purpose
and promptly use its reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.
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4.3 Expenses.
4.3.1 With respect to the registration pursuant to Section 4.1 hereof, all fees, costs and expenses
of and incidental to such registration and public offering (as specified in paragraph 4.3.2
below) in connection therewith will be borne by the Company, provided, however, that
any Holders participating in such registration will bear their pro rata share of the
underwriting discount and commissions, if any, and transfer taxes.
4.3.2 The fees, costs and expenses of registration to be borne by the Company as provided in
paragraph 4.3.1 are the following: all registration, filing, and NASD fees, printing expenses,
fees and disbursements of counsel and accountants for the Company, and all legal fees
and disbursements and other expenses of complying with state securities or Blue Sky laws
of any jurisdictions in which the securities to be offered are to be registered or qualified
(except as provided in 4.3.1 above). Fees and disbursements of counsel and accountants
for the selling Holders and any other expenses incurred by the selling Holders not
expressly included above will be borne by the selling Holders.
4.4 Indemnification.
4.4.1 The Company will indemnify and hold harmless each Holder of Registrable Securities
which are included in the Registration Statement pursuant to the provisions of paragraph
4.1 hereof, its directors and officers, and any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or such underwriter within the
meaning of the Act, from and against, and will reimburse such Holder 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 expenses 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 such Holder,
such underwriter or such controlling person in writing specifically for use in the
preparation thereof.
4.4.2 Each Holder of Registrable Securities included in a registration pursuant to the provisions
of paragraph 4.1 hereof 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
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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 such Holder specifically
for use in the preparation thereof.
4.4.3 Promptly after receipt by an indemnified party 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 4.4.1 or 4.4.2, as the case may be, 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 will have the right to participate in, and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to 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,
as a whole, have the right to select one separate counsel to participate in the defense
of such action on behalf of such indemnified parties. After notice from the indemnifying
parties to such indemnified party of their 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 4.4.1 or 4.4.2 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 (a) the indemnified parties will have employed
counsel in accordance with the provisions of the preceding sentence, (b) the indemnifying
parties will not have employed counsel to represent the indemnified parties within a
reasonable time after the notice of the commencement of the action or (c) the indemnifying
party has authorized, in writing, the employment of counsel for the indemnified party
at the expense of the indemnifying parties.
4.5 Form S-3. The Company represents and Warrants that the Company is, as of the date hereof,
eligible to use Form S-3 to register its securities for sale in a secondary offering of the
Company's securities for the account of selling shareholders; provided any shareholder
offering the Company's securities under a Form S-3 registration statement must satisfy
applicable prospectus delivery requirements and other requirements of the Act.
5. Investor Representations and Warranties. The undersigned hereby acknowledges, represents and Warrants to, and agrees with, the Company and its affiliates as follows:
5.1 Investment Intent. The undersigned is acquiring the Units for his own account as principal, not
as a nominee or agent, for investment purposes only, and not with a view to, or for, resale,
distribution or fractionalization thereof in whole or in part and no other person has a direct or
indirect beneficial interest in such Units. Further, the undersigned does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant participation
to such person or to any third person, with respect to any of the Units for which the undersigned
is subscribing;
5.2 Authority. The undersigned has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if applicable, and this
Agreement constitutes a valid and legally binding obligation of the undersigned;
5.3 Investment Representations. The undersigned acknowledges his understanding that the offering
and sale of the Units is intended to be exempt from registration under the Act by virtue of
Section 4(2) and the provisions of Regulation D promulgated thereunder ("Regulation D").
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In furtherance thereof, the undersigned represents and Warrants to and agrees with the
Company and its affiliates as follows:
(a) The undersigned realizes that the basis for the exemption may not be present if,
notwithstanding such representations, the undersigned has in mind merely acquiring
the Units for a fixed or determinable period in the future, or for a market rise, or
for sale if the market does not rise. The undersigned does not have any such
intention;
(b) The undersigned has the financial ability to bear the economic risk of his investment,
has adequate means for providing for current needs and personal contingencies and
has no need for liquidity with respect to an investment in the Company;
(c) ___________________________________ (insert name of Purchaser Representative:
if none, so state) has acted as the undersigned's Purchaser Representative for purposes
of the private placement exemption under the Act. If the undersigned has appointed a Purchaser
Representative (which term is used herein with the same meaning as given in Rule 501(h) of
Regulation D), the undersigned has been advised by such Purchaser Representative as to the
merits and risks of an investment in the Company in general and the suitability of an investment
in the Units for the undersigned in particular; and
(d) The undersigned (together with the Purchaser Representative(s), if any) has such knowledge
and experience in financial and business matters as to be capable of evaluating the merits and
risks of the prospective investment in the Units. If other than an individual, the undersigned
also represents it has not been organized as a trust for the purpose of acquiring the Units.
5.4 Investor Questionnaire. The information in the Investor Questionnaire completed and executed
by the undersigned in the form of the Investor Questionnaire included as Exhibit E to the
Memorandum (the "Investor Questionnaire") is accurate and true in all respects and the
undersigned is an "accredited investor," as that term is defined in Rule 501 of Regulation D.
5.5 Due Diligence. The undersigned and the Purchaser Representative, if any:
(a) Have been furnished for a reasonable period of time prior to the date hereof with a copy
of the Memorandum and any documents which may have been made available upon request
(collectively with this Agreement, the "Investment Materials") and the undersigned or the Purchaser
Representative(s) have carefully read and evaluated the Investment Materials and understand the
risks involved in an investment in the Units, including the risks set forth under the section titled
"Risk Factors" in the Memorandum and the considerations set forth in the Investment Materials,
and have relied solely (except as indicated in subsections (b) and (c) below) on the information
contained in the Investment Materials (including all exhibits thereto);
(b) Have been provided an opportunity, for a reasonable period of time prior to the date hereof,
to obtain additional information concerning the Offering of the Units, the Company and all other
information to the extent the Company possesses such information or can acquire it without
unreasonable effort or expense;
(c) Have been given the opportunity, for a reasonable period of time prior to the date hereof,
to ask questions of and receive answers from, the Company or its representatives concerning
the terms and conditions of the Offering of the Units and other matters pertaining to an
investment therein, and have been given the opportunity for a reasonable period of time prior to
the date hereof to obtain such additional information necessary to verify the accuracy of the
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information contained in the Investment Materials or that which was otherwise provided in
order to evaluate the merits and risks of a purchase of the Units;
(d) Have not been furnished with any oral representation or oral information in connection
with the Offering of the Units which is not contained in the Investment Materials; and
(e) Have determined that the Units are a suitable investment for the undersigned and that
at this time the undersigned could bear a complete loss of such investment.
5.6 No Reliance; Purchaser Representative. The undersigned is not relying on the Company,
or its affiliates with respect to economic considerations involved in an investment in the Units.
The undersigned has relied on the advice of, or has consulted with only those persons, if any,
named as Purchaser Representative(s) herein and in the Investor Questionnaire. Each
Purchaser Representative is capable of evaluating the merits and risks of an investment in the
Units on the terms and conditions set forth in the Investment Materials and each Purchaser
Representative has disclosed to the undersigned in writing (a copy of which is annexed to
this Agreement) the specific details of any and all past, present or future relationships, actual
or contemplated, between the Purchaser Representative (or related party) and the Company
or any affiliate or subsidiary thereof.
5.7 Restrictions on Transfer. The undersigned represents, Warrants and agrees that he will not
sell or otherwise transfer the Units without registration under the Act or an exemption
therefrom and fully understands and agrees to bear the economic risk of any purchase
because, among other reasons, the Units, the Common Stock and Warrants comprising the
Units, and the Common Stock issuable upon exercise of the Warrants have not been
registered under the Act or under the securities laws of any state and, therefore, cannot be
resold, pledged, assigned or otherwise disposed of unless, inter alia, they are
subsequently registered under the Securities Act and under the applicable securities laws
of such states or an exemption from such registration is available. In particular, the
undersigned is aware that the Units are "restricted securities," as such term is defined in
Rule 144 promulgated under the Act ("Rule 144"), and they may not be sold pursuant to
Rule 144 unless all of the conditions of Rule 144 are met. The undersigned also
understands that, except as otherwise provided herein, the Company is under no obligation
to register the Units, the Common Stock and Warrants comprising the Units, and the
Common Stock issuable upon exercise of the Warrants on the undersigned's behalf or to
assist the undersigned in complying with any exemption from registration under the Act
or applicable state securities laws. The undersigned further understands that U. S.
securities laws, applicable state securities laws, and the provisions of this Agreement
further restrict sales or transfers of the Units and the underlying securities.
5.8 Representations. No representations or warranties have been made to the undersigned
by the Company, or any officer, employee, agent, affiliate or subsidiary of the Company,
other than the representations of the Company contained herein and in the Investment
Materials, and in subscribing for Units the undersigned is not relying upon any repre-
sentations other than those expressly contained herein or in the Investment Materials.
5.9 Financial Information. Any information which the undersigned has heretofore furnished
to the Company with respect to his financial position and business experience is correct
and complete as of the date of this Agreement and if there should be any material
change in such information the undersigned shall immediately furnish such revised or
corrected information to the Company.
5.10 Restrictive Legends. The undersigned understands and agrees that the certificates for the
Common Stock and Warrants comprising the Units will bear, substantially, the following
legend until (a) such securities will have been registered under the Act and effectively been
disposed of in accordance with an effective registration statement; or (b) in the opinion of
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counsel for the Company such securities may be sold without registration under the Act,
as well as any applicable "Blue Sky" or state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. THE
SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD,
PLEDGED, HYPOTHECATED, ASSIGNED, TRANSFERRED OR OTHER-
WISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT WHICH IS CURRENT
WITH RESPECT TO THESE SECURITIES OR PURSUANT TO A SPECIFIC
EXEMPTION FROM REGISTRATION UNDER THE ACT BUT ONLY
UPON A HOLDER HEREOF FIRST HAVING OBTAINED THE WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL
FOR THE COMPANY, TO THE EFFECT THAT THE PROPOSED DISPOSI-
TION MAY BE EFFECTUATED WITHOUT REGISTRATION UNDER
THE ACT."
5.11 Speculative Investment. The undersigned understands that an investment in the Units is a speculative
investment that involves a high degree of risk and the potential loss of the entire investment.
5.12 Overall Commitments. The undersigned's overall commitment to investments that are not readily
marketable is not disproportionate to the undersigned's net worth, and an investment in the Units
will not cause such overall commitment to become excessive.
5.13 Survival. The representations, warranties and agreements of the Undersigned set forth in this
Agreement will survive the Closing.
6. Indemnity. The undersigned agrees to indemnify and hold harmless the Company, its officers and directors, employees and its affiliates and each other person, if any, who controls any thereof, against any loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation commenced or threatened or any claim whatsoever) arising out of or based upon any false representation or warranty or breach or failure by the undersigned to comply with any covenant or agreement made by the undersigned herein or in any other document furnished by the undersigned to any of the foregoing in connection with this transaction.
7. Modification. Neither this Agreement nor any provisions hereof will be modified, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, change, discharge or termination is sought.
8. Notices. Any notice, demand or other communication which any party hereto may be required, or may elect, to give to anyone interested hereunder will be sufficiently given if (a) deposited, postage prepaid, in a United States mail letter box, registered or certified mail, return receipt requested, addressed to such address as may be given herein, or (b) delivered personally at such address.
9. Counterparts. This Agreement may be executed through the use of separate signature pages or in any number of counterparts (and by facsimile signature), and each of such counterparts will, for all purposes, constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart.
10. Binding Effect. Except as otherwise provided herein, this Agreement will be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and assigns. If the undersigned is more than one person, the obligation of the undersigned will be joint and several and the
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agreements, representations, warranties and acknowledgments herein contained will be deemed to be made by and be binding upon each such person and his heirs, executors, administrators and successors.
11. Entire Agreement. This Agreement and the documents referenced herein contain the entire agreement of the parties and there are no representations, covenants or other agreements except as stated or referred to herein and therein.
12. Assignability. This Agreement is not transferable or assignable by the undersigned.
13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles.
14. Pronouns. The use herein of the masculine pronouns "he", "him" or "his" or similar terms will be deemed to include the feminine and neuter genders as well and the use herein of the singular pronoun will be deemed to include the plural as well.
15. Blue Sky Legends.
FOR NEW YORK RESIDENTS:
THIS MEMORANDUM HAS NOT BEEN REVIEWED BY THE ATTORNEY GENERAL PRIOR TO ITS ISSUANCE AND USE. THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
FOR NEW JERSEY RESIDENTS:
THESE SECURITIES HAVE NOT BEN APPROVED OR DISAPPROVED BY THE BUREAU OF SECURITIES OF THE STATE OF NEW JERSEY NOR HAS THE BUREAU PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
FOR FLORIDA RESIDENTS:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE STATE OF FLORIDA BUT WILL BE ISSUED IN RELIANCE ON AN EXEMPTION FROM REGISTRATION SET FORTH IN SECTION 517.07(1) OF THE FLORIDA SECURITIES AND INVESTOR PROTECTION ACT AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER SUCH ACT OR PURSUANT TO AN EFFECTIVE REGISTRATION UNDER SUCH ACT.
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ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the _____ day of ________, 2001.
| ________________________ | X | $ ______________ | = | $___________________ |
__________________________________________
Manner in which Title is to be held (Please Check One):
| 1. | ¨ | Individual | 7. | ¨ | Trust/Estate/Pension or Profit Sharing Plan |
| 2. | ¨ | Joint Tenants with Right of Survivorship | 8. | ¨ | As a Custodian for |
| 3. | ¨ | Community Property | 9. | ¨ | Married with Separate Property |
| 4. | ¨ | Tenants in Common | 10. | ¨ | Keogh |
| 5. | ¨ | Corporation/Partnership/ Limited Liability Company | 11. | ¨ | Tenants by the Entirety |
| 6. | ¨ | IRA |
INDIVIDUAL SUBSCRIBERS MUST COMPLETE PAGE 12.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGE 13.
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EXECUTION BY INDIVIDUAL SUBSCRIBERS
Exact Name in Which Title is to be Held:
| Name: ____________________________________ (Please Print) | Name of Additional Purchaser: |
| Residence: | Address of Additional Purchaser: |
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ACCEPTED this ______ day of ________________, 2001 on behalf of the Company.
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
By:______________________________
Dr. Louis F. Centofanti, President and
Chief Executive Officer
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EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
Name of Entity (Please Print): ____________________________________________________________
State of Incorporation or Organization:_____________________________________________________
State of Principal Offices:________________________________________________________________
Federal Taxpayer Identification Number:____________________________________________________
By__________________________________________________
Print Name:________________________________________
Title:_____________________________________________
[seal]
Attest:
(If Entity is a Corporation)
Address:_____________________________________________
_____________________________________________
_____________________________________________
Taxpayer Identification Number:____________________________
ACCEPTED this ______ day of ________________, 2001 on behalf of the Company.
PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation
By:_______________________________
Dr. Louis F. Centofanti, President and
Chief Executive Officer
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