Securities Registration: Employee Benefit Plan (s-8)
May 19 2023 - 11:47AM
Edgar (US Regulatory)
As
Filed with the Securities and Exchange Commission on May 19, 2023
Registration
No. ____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PERMA-FIX
ENVIRONMENTAL SERVICES, INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
58-1954497 |
(State
of
Incorporation) |
|
(I.R.S.
Employer
Identification
No.) |
|
|
|
8302 Dunwoody Place,
Suite 250 |
|
|
Atlanta,
Georgia |
|
30350 |
(Address of Principal
Executive Offices) |
|
(Zip Code) |
|
Perma-Fix
Environmental Services, Inc. 2003 Outside Directors Stock Plan |
|
|
(Full Title of Plan) |
|
Ben
Naccarato
Executive
Vice President and Chief Financial Officer
8302
Dunwoody Place, Suite 250
Atlanta,
Georgia 30350
(770)
587-9898
(Telephone
number, including area code of agent for service)
With
copies to:
Irwin
H. Steinhorn, Esquire
Jeanette
C. Timmons, Esquire
CONNER
& WINTERS, LLP
One
Leadership Square, Suite 1700
211
North Robinson
Oklahoma
City, Oklahoma 73102
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company,
or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller
reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ |
Accelerated
filer ☐ |
Non-accelerated filer ☒ |
Smaller reporting company
☒ |
|
Emerging growth company
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
EXPLANATORY
NOTE
This
Registration Statement on Form S-8 (this “Registration Statement”) is being filed to register an additional 500,000 shares
of common stock, $0.001 par value per share (“Common Stock”), of Perma-Fix Environmental Services, Inc., a Delaware corporation
(the “Company” or the “Registrant”), that may be issued or sold under the Perma-Fix Environmental Services, Inc.
2003 Outside Directors Plan, as the same may be amended from time to time (the “Plan”).
The
Company initially registered 1,000,000 shares of Common Stock for issuance under the Plan on a Form S-8 Registration Statement (File
No. 333-110995) (the “Original Registration Statement”) filed with the U.S.
Securities and Exchange Commission (the “SEC”) on December 8, 2003. Shares issuable under the Plan and registered under the
Original Registration Statement were subsequently adjusted to reflect a 1-for-5 reverse stock split effected by the Company in October
2013 (the “2013 Reverse Stock Split”). Subsequent to the filing of the Original Registration Statement, the Company effected
the following additional registrations to register an additional 900,000 shares of Common Stock for issuance under the Plan, taking into
account the 2013 Reverse Stock Split:
| ● | Form S-8 Registration Statement, File No. 333-153086,
filed with the SEC on August 19, 2008 (the “First Additional Registration Statement”),
registering an additional 200,000 shares of Common Stock; |
| | |
| ● | Form S-8 Registration Statement, File No. 333-203137,
filed with the SEC on March 31, 2015 (the “Second Additional Registration Statement”),
registering an additional 400,000 shares of Common Stock; and |
| | |
| ● | Form S-8 Registration Statement, File No. 333-223917,
filed with the SEC on March 26, 2018 (the “Third Additional Registration Statement”
and, together with the First Additional Registration Statement and the Second Additional
Registration Statement, the “Additional Registration Statements”)), registering
an additional 300,000 shares of Common Stock; |
Pursuant
to General Instruction E of Form S-8, the contents of the Original Registration Statement
and the three Additional Registration Statements are incorporated herein by reference, to the extent
not modified or superseded hereby or by any subsequently filed document which is incorporated by reference herein or therein, except
that the provisions contained in Part II of the Original Registration Statement and the three Additional Registration Statements are
modified as set forth in this Registration Statement.
PART
II.
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Company with the SEC are incorporated herein by reference:
|
(a) |
Annual Report on Form 10-K
for the fiscal year ended December 31, 2022, filed on March 23, 2023; |
|
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|
(b) |
Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 10, 2023; |
|
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|
(c) |
Current Report on Form 8-K filed with the SEC on April 26, 2023; |
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|
(d) |
Current Report on Form 8-K filed with the SEC on March 23, 2023; |
|
|
|
|
(e) |
The
description of the Company’s Common Stock set forth in its Registration Statement on Form 8-A12B, File No. 001-11596, filed
with the SEC on November 5, 1992, together with any amendments or reports filed for the purpose 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
6. Indemnification of Directors and Officers.
The
Company 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
Company’s Restated Certificate of Incorporation, as amended (“Restated Certificate of Incorporation”), provides for
the mandatory indemnification by the Company of its directors 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), and for the permissive
indemnification of its officers, employees or agents, as may be authorized by the Board of Directors of the Company. 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 Company, but has
ceased to be a director or officer and inure to the benefit of the heirs, executors and administrators of such person.
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
Company has entered into separate employment agreements, each dated as of April 20, 2023, with Mark Duff, President and Chief Executive
Officer of the Company, Dr. Louis Centofanti, Executive Vice President of Strategic Initiatives, Ben Naccarato, Executive Vice President
and Chief Financial Officer, Andy Lombardo, Executive Vice President of Nuclear and Technical Services, and Richard Grondin, Executive
Vice President of Waste Treatment Operations (collectively, the “Employment Agreements”). The Employment Agreements contain
identical provisions that obligate the Company to indemnify the named officers against any and all expenses reasonably incurred by him
in connection with or arising out of (a) the defense of any action, suit or proceeding in which he is a party, or (b) any claim asserted
or threatened against him, in either case by reason of or relating to his being or having been an employee, officer, director or agent
of the Company, any subsidiary thereof, or another company, partnership, joint venture, trust or other enterprise for which he was serving
in such capacity at the request of the Company, except insofar as such indemnification is prohibited by law. Expenses covered by the
indemnification provisions of the Employment Agreements include the fees and disbursements of attorneys, amounts of judgments and amounts
of any settlements.
The
foregoing summaries are necessarily subject to the complete text of the statutes, the Restated Certificate of Incorporation referred
to above, and the Company’s Amended and Restated Bylaws, as amended, and are qualified in their entirety by reference thereto.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”), may
be permitted to directors, officers or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. |
Exemption from Registration
Claimed |
Not
applicable.
Exhibit
Number |
|
Description
of Document |
3.1 |
|
Restated Certificate of Incorporation, as amended, of Perma-Fix Environmental Services, Inc., as incorporated by reference from Exhibit 3(i) to the Company’s Form 10-Q for Quarter ended March 31, 2021filed on May 6, 2021. |
3.2 |
|
Second Amended and Restated Bylaws of Perma-Fix Environmental Services, Inc., as amended effective April 20, 2023, incorporated by reference from Exhibit 3(ii) to the Company’s Form 8-K filed on April 26, 2023. |
5* |
|
Opinion of Conner & Winters, LLP. |
23.1* |
|
Consent of Conner & Winters, LLP (incorporated into Exhibit 5 hereto). |
23.2* |
|
Consent of Grant Thornton LLP |
24.1* |
|
Power of Attorney (included on the signature pages to the Registration Statement) |
99.1* |
|
Amended and Restated 2003 Outside Directors Stock Plan (through Fifth Amendment adopted July 20, 2021) |
107* |
|
Calculation of Filing Fee Table. |
* |
|
Filed herewith. |
(a) |
The Registrant hereby undertakes: |
|
(1) |
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)(l)(i) and (a)(l)(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 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.
|
(2) |
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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|
(3) |
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. |
(b) |
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. |
|
|
(c) |
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 Amended and Restated 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 Atlanta, State of Georgia, on the 19 day of May, 2023.
|
Perma-Fix Environmental Services, Inc. |
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By |
/s/
Ben Naccarato |
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Ben Naccarato |
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Executive Vice President and Chief Financial Officer |
Power
of Attorney
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints MARK DUFF and BEN NACCARATO, and
each or either of them, his attorney-in-fact, with the full power of substitution and resubstitution, for him 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or
any of them, or their or his substitutes, may lawfully or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933 this Registration Statement has been signed below by the following persons in capacities
and on the dates indicated.
By |
/s/ Mark
Duff |
|
Date |
May 19, 2023 |
|
Mark
Duff, President and Chief Executive Officer; Director
(Principal
Executive Officer) |
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|
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By |
/s/ Ben
Naccarato |
|
Date |
May 19, 2023 |
|
Ben Naccarato, Executive Vice President and Chief Financial
Officer (Principal Financial and Accounting Officer) |
|
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By |
/s/
Thomas P. Bostick |
|
Date |
May 19, 2023 |
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Thomas P. Bostick, Director |
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By |
/s/ Dr.
Louis F. Centofanti |
|
Date |
May 19, 2023 |
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Dr. Louis F. Centofanti |
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By |
/s/ Kerry
C. Duggan |
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Date |
May 19, 2023 |
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Kerry C. Duggan, Director |
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By |
/s/ Joseph
T. Grumski |
|
Date |
May 19, 2023 |
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Joseph T. Grumski, Director |
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By |
/s/ Joe
R. Reeder |
|
Date |
May 19, 2023 |
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Joe R. Reeder, Director |
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By |
/s/ Larry
M. Shelton |
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Date |
May 19, 2023 |
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Larry M. Shelton, Chairman of the Board |
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By |
/s/ Zach
P. Wamp |
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Date |
May 19, 2023 |
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Zach P. Wamp, Director |
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By |
/s/ Mark
A. Zwecker |
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Date |
May 19, 2023 |
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Mark A. Zwecker, Director |
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