As Filed with the Securities and Exchange Commission on December 5, 2003
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 58-1954497
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(State of Incorporation) (I.R.S. Employer Identification No.)
1940 N.W. 67th Place, Gainesville, FL 32653
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(Address of principal executive offices) (Zip Code)
PERMA-FIX ENVIRONMENTAL SERVICES, INC. 2003 OUTSIDE DIRECTORS
STOCK PLAN
PERMA-FIX ENVIRONMENTAL SERVICES, INC. 2003 EMPLOYEE STOCK
PURCHASE PLAN
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(Full Titles of Plans)
Dr. Louis F. Centofanti, Chief Executive Officer
1940 N.W. 67th Place
Gainesville, Florida 32653
352-373-4200
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(Name, address and telephone number of agent for service)
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Copy to:
Irwin H. Steinhorn, Esquire
CONNER & WINTERS, P.C.
One Leadership Square, Suite 1700
211 North Robinson
Oklahoma City, Oklahoma 73102
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered per share(2) offering price(2) fee(2)
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Common Stock 2,500,000 (1) $1.27 - $2.185 $5,406,625 $437.38
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(1) This amount is comprised of (a) 1,000,000 shares representing the maximum
number of shares, which are issuable pursuant to the Perma-Fix
Environmental Services, Inc. 2003 Outside Directors Stock Plan ("2003
Directors Plan"), and (b) 1,500,000 shares representing the maximum number
of shares, which are issuable pursuant to Perma-Fix Environmental
Services, Inc.'s 2003 Employee Stock Purchase Plan ("2003 Employee Plan").
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers any additional
shares of common stock which become issuable under the 2003 Directors Plan
and the 2003 Employee Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without receipt
of consideration which results in an increase in the number of shares of
the outstanding common stock of the Registrant.
(2) In accordance with Rule 457(c) and (h), the maximum offering price and the
calculation of the registration fee are based upon the basis of the
average of the high and low prices for the Common Stock on December 1,
2003, of $2.185, as reported on the National Association of Securities
Dealers Automated Quotation system (Nasdaq), except with respect to
144,155 shares which are presently covered by outstanding options and
common stock issuable in lieu of Director's fees under the 2003 Directors
Plan the maximum offering price is determined in accordance with Rule
457(h) on the basis of the exercise price of such outstanding options, as
illustrated by the following:
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Number of
Shares Subject to
Outstanding Stock
Options/Directors' Fees Offering Price Aggregate
Under 2003 Directors Plan Per Share Offering Price
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17,745 $1.27 $ 22,536.15
15,102 $1.40 $ 21,142.80
11,708 $1.54 $ 18,030.32
9,600 $1.88 $ 18,048.00
90,000 $1.99 $179,100.00
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144,155 $258,857.30
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Explanatory Note
The Section 10(a) Prospectus being delivered by Perma-Fix Environmental
Services, Inc. (the "Company") to certain employees or outside directors of the
Company as required by Rule 428 under the Securities Act of 1933, as amended
(the "Act"), has been prepared in accordance with the requirements of Form S-8
and relates to shares of common stock, par value $.001 per share, of the Company
which have been reserved for issuance pursuant to the 2003 Outside Directors
Plan and the 2003 Employees Stock Purchase Plan (together, the "Plans").
Information regarding the Plans required in the Section 10(a) Prospectus is
included in the documents being maintained and delivered by the Company as
required by Rule 428 under the Act. The Company will provide to the participants
of the Plans a written statement advising them of the availability without
charge, upon written or oral request, of documents incorporated by reference
herein, as required by Item 2 of Part I of Form S-8. Upon request, the Company
will furnish to the Securities and Exchange Commission or its staff a copy or
copies of all the documents included in such file.
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities Exchange
Commission are incorporated herein by reference:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 31, 2002, filed on March 28, 2003;
(b) The Company's quarterly reports on Form 10-Q for the quarter ended
March 31, 2003, filed on May 14, 2003; for the quarter ended June
30, 2003, filed on August 14, 2003; and for the quarter ended
September 30, 2003, filed on November 10, 2003;
(c) The Company's current reports on Form 8-K (Date of Event: February
24, 2003) filed on March 7, 2003; and (Date of Event: June 5, 2003)
filed on June 17, 2003; and
(d) Description of the Company's Common Stock set forth in the
Registrant's Form S-1 Registration Statement, No. 33-51874,
including any amendment or report filed for the purposes of updating
such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment,
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents (such documents, and the documents listed above, being hereinafter
referred to as "Incorporated Documents"). Any statement contained in an
Incorporated Document shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed Incorporated Document modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware (the "DGCL")
provides that a Delaware corporation may indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of the
fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such person as an officer,
director, employee or agent of another corporation or enterprise. The indemnity
may include expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, provided that such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify any persons who are, or are threatened to be
made, a party to any threatened, pending or completed action or suit by or in
the right of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the corporation's best interests except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such officer or director has actually
and reasonably incurred. The Registrant's certificate of incorporation and
bylaws provide for the indemnification of directors and officers of the
Registrant to the fullest extent permitted by the DGCL.
The Registrant's Restated Certificate of Incorporation provides for the
indemnification by the Registrant of its directors and officers to the full
extent permitted by Section 145 of the General Corporation Law of the State of
Delaware (or any similar provision or provisions of applicable law at the time
in effect). This indemnification is not deemed exclusive of any other rights to
which those seeking indemnification might be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in an official capacity and as to action in another capacity while
holding such office. This indemnification will continue as to such person who
was a director or officer
of the Registrant, but has ceased to be a director or officer and inure to the
benefit of the heirs, executors and administrators of such person. The
Registrant's bylaws also provide that the Registrant will indemnify any person
who was or is a party or has threatened to be made a party to any action by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Registrant or is or was serving at the request of the Registrant as
a director, officer, employee or agent of another entity, if he or she acted in
good faith and in a manner that he or she reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
The Restated Certificate of Incorporation of the Registrant limits the liability
of its directors to the corporation or its stockholders for any monetary damages
for breaches of fiduciary duty as a director. Under the Registrant's Restated
Certificate of Incorporation, as amended, and as permitted under the Delaware
General Corporation Law, directors are not liable to the Registrant or its
stockholders for monetary damages arising from a breach of their fiduciary
duties as directors. Such provision, however, does not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the Registrant or its stockholders; (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (iii)
under Section 174 of the Delaware General Corporation Law (relating to liability
of directors for unlawful payment of dividend or unlawful stock purchase or
redemption); or (iv) for any transaction from which the director derived an
improper personal benefit. The director's limitations of liability described
above may not limit a director's liability for violation of, or otherwise
relieve the Registrant or its directors from the necessity of complying with,
federal or state securities laws or affect the availability of equitable
remedies, such as injunctive relief or rescission. However, as a practical
matter, equitable remedies may not be available in all situations, and there may
be instances in which no effective remedy is available at all.
The foregoing summaries are necessarily subject to the complete text of the
statutes, the Restated Certificate of Incorporation and bylaws referred to
above, and are qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description of Document
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4.1 Restated Certificate of Incorporation, as amended, of the
Registrant(1)
4.2 Bylaws of the Registrant(2)
4.3 Specimen Common Stock Certificate(2)
5 Opinion of Conner & Winters, P.C.
23.1 Consent of Conner & Winters, P.C. (incorporated into Exhibit
5 hereto)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (see page 5)
99.1 Perma-Fix Environmental Services, Inc. 2003 Outside
Directors Stock Plan(3)
99.2 Perma-Fix Environmental Services, Inc 2003 Employee Stock
Purchase Plan(3)
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(1) Filed as Exhibit 3.1 to the Registrant's Form 10-Q for the quarter ended
June 30, 2002, filed on August 14, 2002, and is incorporated herein by
reference.
(2) Filed as Exhibit 4.3 to the Registration Statement on Form S-1
(Registration No. 33-51874), filed on September 11, 1992, or and is
incorporated herein by reference.
(3) Filed as Exhibits B and C to the Registrant's Proxy Statement relating to
the Registrant's 2003 Annual Meeting, filed June 19, 2003, and is
incorporated herein by reference.
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to
this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(i) and (a)(ii) above do not apply if the Registration Statement
is on Form S-3 or Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered remaining unsold at the
termination of the offering.
(d) That, for purpose of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the Securities
offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities rising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions of
the Restated Certificate of Incorporation or Bylaws of the
Registrant and the provisions of the laws of the State of Delaware
described in Item 6, above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act, and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expense
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Form S-8
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Gainesville, State of Florida, on the 5th day of
December 2003.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
By /s/ Dr. Louis F. Centofanti
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Dr. Louis F. Centofanti
Chairman of the Board and President
Power of Attorney
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints DR. LOUIS F. CENTOFANTI and RICHARD T.
KELECY, and each or either of them, his or her attorney-in-fact, with the full
power of substitution and resubstitution, for him or her in any and all
capacities, to sign any amendments (including post-effective amendments) to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact, and each of them, full power
and authority to do and perform each and every act necessary to be done in
connection therewith, as fully to all interests and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or any of them, or their or his or her substitutes, may
lawfully or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this report has
been signed below by the following persons on behalf of the registrant and in
capacities and on the dates indicated.
Signature Title Date
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Chairman of the Board of
/s/ Dr. Louis F. Centofanti Directors, President, and Chief
Executive Officer December 5, 2003
Dr. Louis F. Centofanti (Principal Executive Officer)
/s/ Richard T. Kelecy Chief Financial Officer
(Principal Financial and December 5, 2003
Richard T. Kelecy Accounting Officer)
/s/ Mark A. Zwecker
Director December 5, 2003
Mark A. Zwecker
/s/ Jon Colin Director December 5, 2003
Jon Colin
/s/ Alfred C. Warrington, IV
Director December 5, 2003
Alfred C. Warrington, IV
/s/ Jack Lahav
Director December 5, 2003
Jack Lahav
Signature Title Date
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/s/ Joe R. Reeder
Director December 5, 2003
Joe R. Reeder
/s/ Charles E. Young Director December 5, 2003
Charles E. Young