As Filed with the Securities and Exchange Commission
on May 5, 2005 Registration No. 333- .
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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. 2004 STOCK
OPTION 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, LLP
One Leadership Square, Suite 1700
211 North Robinson
Oklahoma City, Oklahoma 73102
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CALCULATION OF REGISTRATION FEE
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 2,000,000 (1) $1.44 - $ 1.82 $3,599,530.00 $423.66
(1) This amount is comprised of 2,000,000 shares representing the maximum
number of shares, which are issuable pursuant to the Perma-Fix
Environmental Services, Inc. 2004 Stock Option Plan ("2004 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 2004
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 May 2, 2005,
of $ 1.82, as reported on the National Association of Securities Dealers
Automated Quotation system (Nasdaq), except the maximum offering price
with respect to 106,500 shares which are presently covered by
outstanding options for common stock issuable under the 2004 Plan is
$1.44, determined in accordance with Rule 457(h) on the basis of the
exercise price of such outstanding options.
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 Company's 2004 Stock
Option Plan (the "2004 Plan"). Information regarding the 2004 Plan 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 2004 Plan 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, 2004, filed on March 31, 2005;
(b) The Company's current reports on Form 8-K filed March 18, 2005
and March 21, 2005; and
(c) 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.
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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.
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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)
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 6 of the Registration Statement)
99.1 Perma-Fix Environmental Services, Inc. 2004 Stock Option 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, and is
incorporated herein by reference.
(3) Filed as Exhibit A to the Registrant's Proxy Statement relating to the
Registrant's 2004 Annual Meeting, filed June 21, 2004, 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.
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(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.
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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
May 2005.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
By /s/ Richard T. Kelecy
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Richard T. Kelecy
Vice President and
Chief Financial Officer
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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
-------------------------------- -------------------------------- -------------
Chairman of the Board of
/s/ Louis F. Centofanti Directors, President, and Chief
-------------------------------- Executive Officer May 4, 2005
Dr. Louis F. Centofanti (Principal Executive Officer)
Chief Financial Officer
/s/ Richard T. Kelecy (Principal Financial and May 4, 2005
-------------------------------- Accounting Officer)
Richard T. Kelecy
/s/ Mark A. Zwecker
-------------------------------- Director May 4, 2005
Mark A. Zwecker
/s/ Jon Colin
-------------------------------- Director May 4, 2005
Jon Colin
/s/ Alfred C. Warrington, IV
-------------------------------- Director May 4, 2005
Alfred C. Warrington, IV
/s/ Jack Lahav
-------------------------------- Director May 4, 2005
Jack Lahav
/s/ Joe R. Reeder
-------------------------------- Director May 4, 2005
Joe R. Reeder
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