Investing in our common stocksecurities involves a high degree of risk. You should review carefully consider the Risk Factors beginningrisks and uncertainties described under the heading “Risk Factors” on page 35 of this prospectus beforeand any similar section contained in the applicable prospectus supplement and any related free writing prospectus we have authorized for use in connection with a specific offering, as well as the “Risk Factors” incorporated by reference herein from our most recent Annual Report on Form 10-K and other reports and information that we file with the Securities and Exchange Commission, or the SEC.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process for the delayed offering and sale of securities pursuant to Rule 415 under the Securities Act of 1933, as amended, or the Securities Act. Under the shelf registration process, we may, over time, sell the securities described in this prospectus in one or more offerings.
This prospectus provides you makewith a general description of the securities that we may offer. As allowed by SEC rules, this prospectus does not contain all the information you can find in the registration statement or the exhibits to the registration statement of which this prospectus is a part. Statements contained in this prospectus and any accompanying prospectus supplement or other offering materials about the provisions or contents of any agreement or other document are only summaries. If SEC rules require that any agreement or document be filed as an exhibit to the registration statement, you should refer to that agreement or document for its complete contents.
We will not use this prospectus to offer and sell securities unless it is accompanied by a prospectus supplement that more fully describes the securities being offered and the terms of the offering. Any accompanying prospectus supplement or free writing prospectus may also add to, update or supersede other information contained in this prospectus. Before purchasing any securities, you should carefully read this prospectus, any prospectus supplement and any free writing prospectus together with the information incorporated or deemed to be incorporated by reference herein as described under the heading “Where to Find Additional Information” in this prospectus.
You should rely only on the information contained or incorporated by reference in this prospectus. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
The information contained in this prospectus, any prospectus supplement to this prospectus, any free writing prospectus or the documents incorporated by reference herein or therein are accurate only as of the date of such document. Our business, financial condition, liquidity, results of operations, funds from operations and prospects may have changed since those dates.
Unless the context otherwise requires, references in this prospectus to “Perma-Fix,” the “Company,” “we,” “our,” and “us” refer to Perma-Fix Environmental Services, Inc. and its consolidated subsidiaries.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement, including the documents incorporated by reference herein and therein, contain statements reflecting our views about our future performance that constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are often identified by the use of words such as “believe,” “intend,” “expect,” “estimate,” “plan,” “outlook,” “project,” “anticipate,” “may,” “will,” “would” and other similar words and expressions that predict or indicate future events or trends that are not statements of historical matters.
Forward-looking statements include statements related to:
| ● | demand for our services; |
| ● | reductions and improvement in the level of government funding in future years; |
| ● | reducing operating costs and non-essential expenditures; |
| ● | ability to meet loan agreement quarterly financial covenant requirements; |
| ● | funding of cash flow requirements; |
| ● | Canadian receivables; |
| ● | sufficient liquidity to continue business; |
| ● | future results of operations and liquidity; |
| ● | increasing liquidity; |
| ● | government funding for our services; |
| ● | liquidity to repay debt if our lender accelerates payment of our borrowings; |
| ● | manner in which the applicable governmental customer will be required to spend funding to remediate various sites; |
| ● | funding operations; |
| ● | continued increases in pricing and/or further tightening supply chain; |
| ● | our ability to fund capital expenditures from cash from operations and/or financing; |
| ● | impact from COVID-19 and economic conditions; |
| ● | continue improvement in waste receipts and project work; |
| ● | submitted bids; |
| ● | final terms of a proposed joint venture with an affiliate of Westinghouse Electric Company LLC, including the ownership percentage interests of the joint venture partners, as well as final funding requirements; |
| ● | positive trends; |
| ● | compliance with environmental laws, rules and regulations; |
| ● | potential effect of being a Potentially Responsible Party, as such term is defined under Section 107(a) of the The Comprehensive Environmental Response, Compensation, and Liability Act of 1980; |
| ● | potential sites for violations of environmental laws and remediation of our facilities; |
| ● | future price increases; |
| ● | sales prices; and |
| ● | continuation of contracts with federal government. |
While we believe the expectations reflected in any such forward-looking statements are reasonable, we can give no assurance such expectations will prove to be correct. Forward-looking statements should not be read as a guarantee of future performance or results and will not necessarily accurately indicate the times at which such performance or results may be achieved. Forward-looking statements are based on information available at the time those statements are made and/or management’s good faith belief as of that time with respect to future events and are subject to risks and uncertainties that could cause actual performance or results to differ materiality from those expressed in or suggested by the forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those described in “Special Note Regarding Forward-Looking Statements” and “Risk Factors” in our annual report on Form 10-K for the fiscal year ended December 31, 2022, and in any subsequent annual report on Form 10-K, quarterly report on Form 10-Q or current report on Form 8-K incorporated by reference herein or in any accompanying prospectus supplement.
PROSPECTUS SUMMARY
The following summary highlights selected information from this prospectus and does not contain all of the information that you need to consider in making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our financial statements, and the exhibits to the registration statement of which this prospectus is a part.
Overview
We are an environmental and environmental technology know-how company providing nuclear, low-level radioactive, mixed, hazardous and non-hazardous waste treatment, processing, and disposal services, primarily through four treatment and storage facilities that are licensed by the Nuclear Regulatory Commission (or state equivalent agency) and permitted by the U.S. Environmental Protection Agency (“EPA”) or state-equivalent agency. We also conduct research and development (“R&D”) activities to identify, develop and implement innovative waste processing techniques for problematic waste streams, as well as provide technical services and on-site waste management services to commercial and governmental customers.
Headquartered in Atlanta, Georgia, we provide services to research institutions, commercial companies, public utilities, and governmental agencies (domestic and foreign), including the U.S. Department of Energy (“DOE”) and U.S. Department of Defense (“DOD”). The distribution channels for our services are through direct sales to customers or via intermediaries.
The principal element of our business strategy consists of upgrading our facilities within our treatment segment to increase efficiency and modernize and expand treatment capabilities to meet the changing markets associated with the waste management industry. Within our services segment, we continue to revitalize and expand our business development programs to further increase competitive procurement effectiveness and broaden the market penetration within both the commercial and government sectors. The Company remains focused on expansion into both commercial and international markets to supplement government spending in the United States, from which a significant portion of the Company’s revenue is derived. This includes new services, new customers and increased market share in our current markets.
We are a Delaware corporation incorporated in December 1990. Our principal executive offices are located at 8302 Dunwoody Place, Suite 250, Atlanta, Georgia 30350, and our telephone number is (770) 587-9898. Our website address is www.perma-fix.com. The information on our website is not incorporated by reference into this prospectus and should not be considered to be a part of this prospectus. Our internet address is included in this prospectus as an inactive textual reference only.
Our common stock offeredis listed on the Nasdaq Capital Market under the symbol “PESI”. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our common stock.
We are a “smaller reporting company” as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We may take advantage of certain scaled disclosures available to smaller reporting companies and will be able to take advantage of these scaled down disclosures for so long as (i) our voting and non-voting ordinary shares held by non-affiliates is less than $250.0 million measured as of June 30th of such fiscal year or (ii) our annual revenue is less than $100.0 million during the most recently completed fiscal year and our voting and non-voting ordinary shares held by non-affiliates is less than $700.0 million measured as of June 30th of such fiscal year.
The Securities We May Offer
We may offer up to 2,500,000 shares of our common stock from time to time in one or more offerings under this prospectus, may be offered in amounts,together with any applicable prospectus supplement and any related free writing prospectus, at prices and aton terms to be determined by market conditions at the time of the offeringrelevant offering. This prospectus provides you with a general description of the securities we may offer. Each time we offer securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities to be offered.
The prospectus supplement and any related free writing prospectus that we may authorize to be sold directlyprovided to you may also add, update or change information contained in this prospectus or in documents we have incorporated by us to investors, through agents designated fromreference. However, no prospectus supplement or free writing prospectus will offer a security that is not registered and described in this prospectus at the time to time orof the effectiveness of the registration statement of which this prospectus is a part.
We may offer and sell our securities to or through one or more underwriters, or dealers. We will set forth the names of any underwritersdealers, or agents, in the accompanying prospectus supplement.“at-the-market” to or through a market maker or into an existing trading market, or directly to one or more purchasers, or through a combination of methods of sale, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution.” TheDistribution” in this prospectus. We, our underwriters, dealers, or agents, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through underwriters, dealers, or agents, we will include in the applicable prospectus supplement:
● the names of those underwriters or agents;
● applicable fees and commissions to be paid to them;
● details regarding over-allotment options, if any; and
● the estimated net proceeds we expect to receive from suchus.
This prospectus may not be used to consummate a sale will also be set forth inof securities unless it is accompanied by a prospectus supplement.
Neither the Securities and Exchange Commission norRISK FACTORS
Investment in any state securities commission has approved or disapproved of these securities or determined ifoffered pursuant to this prospectus is truthful or complete. Any representation toinvolves substantial risks. You should carefully consider the contrary is a criminal offense.
The date of this prospectus is ___________, 2009.
TABLE OF CONTENTS
SUMMARY | 1 |
THE COMMON STOCK WE MAY OFFER | 2 |
RISK FACTORS | 2 |
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS | 11 |
USE OF PROCEEDS | 12 |
PLAN OF DISTRIBUTION | 12 |
DESCRIPTION OF COMMON STOCK | 13 |
RIGHTS ATTACHING TO OUR COMMON STOCK | 13 |
LEGAL OPINION | 16 |
EXPERTS | 16 |
WHERE YOU CAN FIND MORE INFORMATION | 16 |
INCORPORATION BY REFERENCE | 17 |
Unless the context otherwise requires, references in this prospectus to “Perma-Fix,” “the company,” “we,” “our,” and “us” refer to Perma-Fix Environmental Services, Inc. and its consolidated subsidiaries.
No person has been authorized to give any information or make any representations in connection with this offering other than those contained orrisk factors incorporated by reference in this prospectus andto our Annual Report on Form 10-K for the year ended December 31, 2022, the risk factors incorporated by reference to any accompanying prospectus supplement in connection with the offering described herein and therein, and, if givensubsequent Annual Report on Form 10-K, Quarterly Report on Form 10-Q or made, such information or representations must not be relied upon as having been authorized by us. Neither this prospectus nor any prospectus supplement shall constitute an offer to sell or a solicitation of an offer to buy offered securities in any jurisdiction in which it is unlawful for such person to make such an offering or solicitation. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder shall under any circumstances imply that the information contained orCurrent Report on Form 8-K incorporated by reference herein or in any accompanying prospectus supplement, is correct asthe risk factors described under the caption “Risk Factors” in any applicable prospectus supplement and any risk factors set forth in our other filings with the SEC, before making an investment decision. Each of the risks described in these documents could materially and adversely affect our business, financial condition, results of operations and prospects, and could result in a partial or complete loss of your investment. Although we have tried to discuss key factors, please be aware that these are not the only risks we face and there may be additional risks that we do not presently know of or that we currently consider not likely to have a significant impact. New risks may emerge at any date subsequenttime and we cannot predict such risks or estimate the extent to which they may affect our business or our financial performance. Please also refer to the date hereof or of such prospectus supplement.
SUMMARY
The following summary is qualified in its entirety by the more detailed information included in this prospectus or incorporated by referencesection entitled “Special Note Regarding Forward-Looking Statements” in this prospectus.
You should carefully considerUSE OF PROCEEDS
We maintain broad discretion over the information set forthuse of proceeds from the sale of securities pursuant to this prospectus. Unless we specify otherwise in this entire prospectus, including the “Risk Factors” section, the applicablean accompanying prospectus supplement, we intend to use the net proceeds from the sale of securities by us for general corporate purposes, which may include, but is not limited to, working capital, repayment of indebtedness, capital expenditures, research and development expenditures and acquisitions of new technologies or businesses, subject in all respects to the consent of our secured creditor. The precise amount, use and timing of the application of such securitiesproceeds will depend upon our funding requirements and the availability and cost of other documents we refercapital. Any allocation of the net proceeds of an offering of securities to or that we incorporate by reference.
This prospectus is parta specific purpose will be determined at the time of a Registration Statement on Form S-3 that we filed withsuch offering and will be described in the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process. Underaccompanying supplement to this shelf registration process, we may, from timeprospectus.DESCRIPTION OF COMMON STOCK
Our certificate of incorporation authorizes us to time, sellissue up to an aggregate30,000,000 shares of 5,000,000common stock, $0.001 par value. As of May 15, 2023, there were 13,419,165 shares of our common stock in one or more offerings. This prospectus provides you with a general descriptionoutstanding.
The holders of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement, including the risk factors, together with additional information described below under the heading s “Where You Can Find More Information” and “Incorporation by Reference.”
Perma-Fix
Perma-Fix Environmental Services, Inc. is an environmental and technology know-how company. We are engaged through our subsidiaries, in:
Nuclear Waste Management Services (“Nuclear Segment”), which include:
| · | Treatment, storage, processing and disposal of mixed waste (which is waste that contains both low-level radioactive and hazardous waste) including on and off-site waste remediation and processing; |
| · | Nuclear, low-level radioactive, and mixed waste treatment, processing and disposal; and |
| · | Research and development of innovative ways to process low-level radioactive and mixed waste. |
These services are primarily conducted through fourshares of our subsidiaries:
| · | Perma-Fix Northwest Richland, Inc. located in Richland, Washington, adjacent to the U.S. Department of Energy’s Hanford, Washington, facility; |
| · | Perma-Fix of Florida, Inc., located in Gainesville, Florida; |
| · | Diversified Scientific Services, Inc., located in Kingston, Tennessee; and |
| · | East Tennessee Materials and Energy Corporation, located in Oak Ridge, Tennessee. |
Industrial Waste Management Services (“Industrial Segment”), which include:
| · | treatment storage, processing and disposal of hazardous and non-hazardous waste, and |
| · | wastewater management services, including the collection, treatment, processing and disposal of hazardous and non-hazardous wastewater. |
These services are conducted through our subsidiaries:
| · | Perma-Fix of Fort Lauderdale, Inc., located in Ft. Lauderdale, Florida; |
| · | Perma-Fix of South Georgia, Inc., located in Valdosta, Georgia; and |
| · | Perma-Fix of Orlando, Inc., located in Orlando, Florida. |
Consulting Engineering Services (“Engineering Segment”), which provide solutions to industrial and government customers for broad-scope environmental issues including:
| · | Air, water, and hazardous waste permitting; |
| · | air, soil, and water sampling; |
| · | emission reduction strategies; and |
The Engineering Segment also provides various compliance and training activities, as well as engineering and compliance support needed by our other segments. These services are primarily conducted through our subsidiary, Schreiber, Yonley & Associates, Inc., located in Ellisville, Missouri.
Our goal is to continue focus on the efficient operation of our existing facilities within our Nuclear, Industrial, and Engineering Segments, evaluate strategic acquisitions primarily within the Nuclear Segments, and to continue the research and development of innovative technologies to treat nuclear waste, mixed waste, and industrial waste. We continue to place greater attention and resources on our nuclear business.
We service research institutions, commercial companies, public utilities, and governmental agencies nationwide. The distribution channels for services are through direct sales to customers or via intermediaries.
We were incorporated in the State of Delaware in December 1990. Our executive offices are located at 8302 Dunwoody Place, #250, Atlanta, Georgia 30350, and our telephone number is (770) 587-9898. Our website is located at www.perma-fix.com. The information contained in our website is not incorporated by reference in this prospectus.
THE COMMON STOCK WE MAY OFFER
We may offer up to an aggregate of 5,000,000 shares of common stock inare entitled to one or more offerings. A prospectus supplement, which we will providevote per share on all matters to you each time we offer securities, will describe the specific amounts, prices and terms of these securities. Each share of common stock includes an attached Right, as described beginningbe voted on page 13 of this prospectus.
We may sell the common stock to or through underwriters, dealers or agents or directly to purchasers. We and our agents reserve the sole right to accept and to reject in whole or in part any proposed purchase of securities. Each prospectus supplement will set forth the names of any underwriters, dealers or agents involved in the sale of the common stock described in that prospectus supplement and any applicable fee, commission or discount arrangements with them.
by stockholders. Common stock holdersstockholders are entitled to receive dividends declared by ourthe board of directors out of funds legally available for the payment of dividends, subject to the rights, if any, of preferred stock holders.stockholders. However, we have never paid a dividend and we do not anticipate paying a dividend in the foreseeable future. Our current secured credit facility prohibits us from paying cash dividends on our common stock. Each holderUpon any liquidation, dissolution or winding up of our business, the holders of common stock isare entitled to one vote per share.share equally in all assets available for distribution after payment of all liabilities and provision for liquidation preference of shares of preferred stock then outstanding. The holders of common stock have no preemptive rights or cumulative voting rights. A prospectus supplement will describe the specific amounts, prices and terms of anyno rights to convert their common stock to be issued.
RISK FACTORS
An investment in our securities involves a high degree of risk. You should carefully consider the risks described below before making an investment decision, as well as the risks andinto any other information included and incorporated by reference in thesecurities. There are no redemption or sinking fund provisions applicable prospectus supplement when determining whether or not to purchase the securities offered under this prospectus and the applicable prospectus supplement. You should also refer to the other information in this prospectus incorporated by reference into this prospectus and the additional information in the other reports we file with the Securities and Exchange Commission (“SEC”).
If any of the following risks actually occur, our business, results of operations and financial condition could suffer. In that event, the trading price of our common stock could decline, and you may lose all or part of your investment in our common stock. The risks discussed below also include forward-looking statementsAll outstanding shares of common stock are fully paid and our actual results may differ substantially from those discussed in these forward-looking statements.
Risks Relating to our Operations
nonassessable.Options and Other Equity Awards
Our insurer that provides our financial assurance that we are required have in order to operate our permitted treatment, storage and disposal facility has experienced financial difficulties.
It has been publicly reported that American International Group, Inc. (“AIG”), has experienced significant financial difficulties and is continuing to experience significant financial difficulties. A subsidiarycertificate of AIG provides our finite risk insurance policies which provide financial assurance to the applicable states for our permitted facilities in the event of unforeseen closure. We are required to provide and to maintain financial assurance that guarantees to the state that in the event of closure of our permitted facilities will be closed in accordance with the regulations. The policies provide a maximum of $35,000,000 of financial assurance coverage of which the coverage amount totals $32,515,000 at December 31, 2008. In March 2009, the policies were increased to provide a maximum of $39,000,000 of financial assurance coverage of which the coverage amounts totals $37,936,000. This additional increase was the result of additional financial assurance coverage requirement for our DSSI subsidiary to commercially store and dispose of PCB wastes under a permit issued by the EPA on November 26, 2008. The AIG subsidiary also provides other operating insurance policies for the Company and our subsidiaries. In the event of a failure of AIG, this could materially impact our operations and our permits which we are required to have in order to operate our treatment, storage, and disposal facilities.
If we cannot maintain adequate insurance coverage, we will be unable to continue certain operations.
Our business exposesincorporation authorizes us to various risks, including claims for causing damage to propertyissue shares of common stock and injuries to persons that may involve allegations of negligence or professional errors or omissions in the performance of our services. Such claims could be substantial. We believe that our insurance coverage is presently adequateoptions, rights, and similar to, or greater than, the coverage maintained by other companies in the industry of our size. If we are unable to obtain adequate or required insurance coverage in the future, or if our insurance is not available at affordable rates, we would violate our permit conditions and other requirements of the environmental laws, rules, and regulations under which we operate. Such violations would render us unable to continue certain of our operations. These events would have a material adverse effect on our financial condition.
The inability to maintain existing government contracts or win new government contracts over an extended period could have a material adverse effect on our operations and adversely affect our future revenues.
A material amount of our Nuclear Segment's revenues are generated through various U.S. government contracts or subcontracts involving the U.S. government. Our revenues from governmental contracts and subcontracts relating to governmental facilities within our Nuclear Segment were approximately $43,464,000 and $30,000,000, representing 57.6% and 46.5%, respectively, of our consolidated operating revenues from continuing operations for 2008 and 2007. Most of our government contracts or our subcontracts granted under government contracts are awarded through a regulated competitive bidding process. Some government contracts are awarded to multiple competitors, which increase overall competition and pricing pressure and may require us to make sustained post-award efforts to realize revenues under these government contracts. All contracts with, or subcontracts involving, the federal government are terminable, or subject to renegotiation, by the applicable governmental agency on 30 days notice, at the option of the governmental agency. If we fail to maintain or replace these relationships, or if a material contract is terminated or renegotiated in a manner that is materially adverse to us, our revenues and future operations could be materially adversely affected.
Failure of our Nuclear Segment to be profitable could have a material adverse effect.
Our Nuclear Segment has historically been profitable. With the divestitures of certain facilities within our Industrial Segment and the acquisition of our Perma-Fix Northwest Richland, Inc. (“PFNWR”) within our Nuclear Segment in June 2007, the Nuclear Segment represents the Company’s largest revenue segment. The Company’s main objectives are to increase focus on the efficient operation of our existing facilities within our Nuclear Segment and to further evaluate strategic acquisitions within the Nuclear Segment. If our Nuclear Segment fails to continue to be profitable in the future, this could have a material adverse effect on the Company’s results of operations, liquidity and our potential growth.
Our existing and future customers may reduce or halt their spending on nuclear services with outside vendors, including us.
A variety of factors may cause our existing or future customers (including the federal government) to reduce or halt their spending on nuclear services from outside vendors, including us. These factors include, but are not limited to:
| · | accidents, terrorism, natural disasters or other incidents occurring at nuclear facilities or involving shipments of nuclear materials; |
| · | failure of the federal government to approve necessary budgets, or to reduce the amount of the budget necessary, to fund remediation of U.S. Department of Energy (“DOE”) and U.S. Department of Defense (“DOD”) sites; |
| · | civic opposition to or changes in government policies regarding nuclear operations; or |
| · | a reduction in demand for nuclear generating capacity. |
These events could result in or cause the federal government to terminate or cancel its existing contracts involving us to treat, store or dispose of contaminated waste at one or more of the federal sites since all contracts with, or subcontracts involving, the federal government are terminable upon or subject to renegotiation at the option of the government on 30 days notice. These events also could adversely affect us to the extent that they result in the reduction or elimination of contractual requirements, lower demand for nuclear services, burdensome regulation, disruptions of shipments or production, increased operational costs or difficulties or increased liability for actual or threatened property damage or personal injury.
Economic downturns (i.e. the current economic recession) and/or reductions in government funding could have a material negative impact on our businesses.
Demand for our services has been, and we expect that demand will continue to be, subject to significant fluctuations due to a variety of factors beyond our control, including the current economic recession and conditions, inability of the federal government to adopt its budget or reductions in the budget for spending to remediate federal sites due to numerous reasons, including, without limitation, the substantial deficits that the federal government has and is continuing to incur. During economic downturns, such as the current economic recession, and large budget deficits that the federal government and many states are experiencing, the ability of private and government entities to spend on nuclear services may decline significantly. Although the recently adopted economic stimulus package provides for substantial funds to remediate federal nuclear sites, we cannot be certain that economic or political conditions will be generally favorable or that there will not be significant fluctuations adversely affecting our industry as a whole. In addition, our operations depend, in large part, upon governmental funding, particularly funding levels at the DOE. Significant reductions in the level of governmental funding (for example, the annual budget of the DOE) or specifically mandated levels for different programs that are important to our business could have a material adverse impact on our business, financial position, results of operations and cash flows.
The loss of one or a few customers could have an adverse effect on us.
One or a few governmental customers or governmental related customers have in the past, and may in the future, account for a significant portion of our revenue in any one year or over a period of several consecutive years. Because customers generally contract with us for specific projects, we may lose these significant customers from year to year as their projects with us are completed. Our inability to replace the business with other projects could have an adverse effect on our business and results of operations.
As a government contractor, we are subject to extensive government regulation, and our failure to comply with applicable regulations could subject us to penalties that may restrict our ability to conduct our business.
Our governmental contracts, which are primarily with the DOE or subcontracts relating to DOE sites, are a significant part of our business. Allowable costs under U.S. government contracts are subject to audit by the U.S. government. If these audits result in determinations that costs claimed as reimbursable are not allowed costs or were not allocated in accordance with applicable regulations, we could be required to reimburse the U.S. government for amounts previously received.
Governmental contracts or subcontracts involving governmental facilities are often subject to specific procurement regulations, contract provisions and a variety of other requirementswarrants relating to the formation, administration, performancecommon stock for the consideration and accounting of these contracts. Many of these contracts include express or implied certifications of compliance with applicable regulations and contractual provisions. If we fail to comply with any regulations, requirements or statutes, our existing governmental contracts or subcontracts involving governmental facilities could be terminated or we could be suspended from government contracting or subcontracting. If one or more of our governmental contracts or subcontracts are terminated for any reason, or if we are suspended or debarred from government work, we could suffer a significant reduction in expected revenues and profits. Furthermore, as a result of our governmental contracts or subcontracts involving governmental facilities, claims for civil or criminal fraud may be brought by the government or violations of these regulations, requirements or statutes.
Loss of certain key personnel could have a material adverse effect on us.
Our success depends on the contributionsterms and conditions established by our board of our key management, environmental and engineering personnel, especially Dr. Louis F. Centofanti, Chairman, President, and Chief Executive Officer. The loss of Dr. Centofanti could have a material adverse effect on our operations, revenues, prospects, and our ability to raise additional funds. Our future success depends on our ability to retain and expand our staff of qualified personnel, including environmental specialists and technicians, sales personnel, and engineers. Without qualified personnel, we may incur delaysdirectors in rendering our services or be unable to render certain services. We cannot be certain that we will be successful in our efforts to attract and retain qualified personnel as their availability is limited due to the demand for hazardous waste management services and the highly competitive nature of the hazardous waste management industry. We do not maintain key person insurance on any of our employees, officers, or directors.
Changes in environmental regulations and enforcement policies could subject us to additional liability and adversely affect our ability to continue certain operations.
We cannot predict the extent to which our operations may be affected by future governmental enforcement policies as applied to existing laws, by changes to current environmental laws and regulations, or by the enactment of new environmental laws and regulations. Any predictions regarding possible liability under such laws are complicated further by current environmental laws which provide that we could be liable, jointly and severally, for certain activities of third parties over whom we have limited or no control.
The refusal to accept our waste for disposal by, or a closure of, the end disposal site that our Nuclear Segment utilizes to dispose of its waste could subject us to significant risk and limit our operations.
Our Nuclear Segment has limited options available for disposal of its waste. If this disposal site ceases to accept waste or closes for any reason or refuses to accept the waste of our Nuclear Segment, for any reason, we could have nowhere to dispose of our nuclear waste or have significantly increased costs from disposal alternatives. With nowhere to dispose of our nuclear waste, we would be subject to significant risk from the implications of storing the waste on our site, and we would have to limit our operations to accept only waste that we can dispose of.
Our businesses subject us to substantial potential environmental liability.
Our business of rendering servicessole discretion, whether in connection with management of waste, including certain types of hazardous waste, low-level radioactive waste, and mixed waste (waste containing both hazardous and low-level radioactive waste), subjects us to risks of liability for damages. Such liability could involve, without limitation:
| · | claims for clean-up costs, personal injury or damage to the environment in cases in which we are held responsible for the release of hazardous or radioactive materials; and |
| · | claims of employees, customers, or third parties for personal injury or property damage occurring in the course of our operations; and |
| · | claims alleging negligence or professional errors or omissions in the planning or performance of our services. |
Our operations are subject to numerous environmental laws and regulations. We have in the past, and could in the future, be subject to substantial fines, penalties, and sanctions for violations of environmental laws and substantial expenditures as a responsible party for the cost of remediating any property which may be contaminated by hazardous substances generated by us and disposed at such property,acquisitions or transported by us to a site selected by us, including properties we own or lease.
As our operations expand, we may be subject to increased litigation, which could have a negative impact on our future financial results.
Our operations are highly regulated and we are subject to numerous laws and regulations regarding procedures for waste treatment, storage, recycling, transportation, and disposal activities, all of which may provide the basis for litigation against us. In recent years, the waste treatment industry has experienced a significant increase in so-called “toxic-tort” litigation as those injured by contamination seek to recover for personal injuries or property damage. We believe that, as our operations and activities expand, there will be a similar increase in the potential for litigation alleging that we have violated environmental laws or regulations or are responsible for contamination or pollution caused by our normal operations, negligence or other misconduct, or for accidents, which occur in the course of our business activities. Such litigation, if significant and not adequately insured against, could adversely affect our financial condition and our ability to fund our operations. Protracted litigation would likely cause us to spend significant amounts of our time, effort, and money. This could prevent our management from focusing on our operations and expansion.
Our operations are subject to seasonal factors, which cause our revenues to fluctuate.
We have historically experienced reduced revenues and losses during the first and fourth quarters of our fiscal years due to a seasonal slowdown in operations from poor weather conditions, overall reduced activities during these periods resulting from holiday periods, and finalization of government budgets during the fourth quarter of each year. During our second and third fiscal quarters there has historically been an increase in revenues and operating profits. If we do not continue to have increased revenues and profitability during the second and third fiscal quarters, this will have a material adverse effect on our results of operations and liquidity.
If environmental regulation or enforcement is relaxed, the demand for our services will decrease.
The demand for our services is substantially dependent upon the public's concern with, and the continuation and proliferation of, the laws and regulations governing the treatment, storage, recycling, and disposal of hazardous, non-hazardous, and low-level radioactive waste. A decrease in the level of public concern, the repeal or modification of these laws, or any significant relaxation of regulations relating to the treatment, storage, recycling, and disposal of hazardous waste and low-level radioactive waste would significantly reduce the demand for our services and could have a material adverse effect on our operations and financial condition. We are not aware of any current federal or state government or agency efforts in which a moratorium or limitation has been, or will be, placed upon the creation of new hazardous or radioactive waste regulations that would have a material adverse effect on us; however, no assurance can be made that such a moratorium or limitation will not be implemented in the future.
We and our customers operate in a politically sensitive environment, and the public perception of nuclear power and radioactive materials can affect our customers and us.
We and our customers operate in a politically sensitive environment. Opposition by third parties to particular projects can limit the handling and disposal of radioactive materials. Adverse public reaction to developments in the disposal of radioactive materials, including any high profile incident involving the discharge of radioactive materials, could directly affect our customers and indirectly affect our business. Adverse public reaction also could lead to increased regulation or outright prohibition, limitations on the activities of our customers, more onerous operating requirements or other conditions that could have a material adverse impact on our customers’ and our business.
We may not be successful in winning new business mandates from our government and commercial customers.
We must be successful in winning mandates from our government and commercial customers to replace revenues from projects that are nearing completion and to increase our revenues. Our business and operating results can be adversely affected by the size and timing of a single material contract.
The elimination or any modification of the Price-Anderson Acts indemnification authority could have adverse consequences for our business.
The Atomic Energy Act of 1954, as amended, or the AEA, comprehensively regulates the manufacture, use, and storage of radioactive materials. The Price-Anderson Act supports the nuclear services industry by offering broad indemnification to DOE contractors for liabilities arising out of nuclear incidents at DOE nuclear facilities. That indemnification protects DOE prime contractor, but also similar companies that work under contract or subcontract for a DOE prime contract or transporting radioactive material to or from a site. The indemnification authority of the DOE under the Price-Anderson Act was extended through 2025 by the Energy Policy Act of 2005.
The Price-Anderson Act’s indemnification provisions generally do not apply to our processing of radioactive waste at governmental facilities, and do not apply to liabilities that we might incur while performing services as a contractor for the DOE and the nuclear energy industry. If an incident or evacuation is not covered under Price-Anderson Act indemnification, we could be held liable for damages, regardless of fault, which could have an adverse effect on our results of operations and financial condition. If such indemnification authority is not applicable in the future, our business could be adversely affected if the owners and operators of new facilities fail to retain our services in the absence of commercial adequate insurance and indemnification.
We are engaged in highly competitive businesses and typically must bid against other competitors to obtain major contracts.
We are engaged in highly competitive business in which most of our government contracts and some of our commercial contracts are awarded through competitive bidding processes. We compete with national and regional firms with nuclear services practices, as well as small or local contractors. Some of our competitors have greater financial and other resources than we do, which can give them a competitive advantage. In addition, even if we are qualified to work on a new government contract, we might not be awarded the contract because of existing government policies designed to protect certain types of businesses and underrepresented minority contractors. Competition also places downward pressure on our contract prices and profit margins. Intense competition is expected to continue for nuclear service contracts. If we are unable to meet these competitive challenges, we could lose market share and experience on overall reduction in our profits.
Our failure to maintain our safety record could have an adverse effect on our business.
Our safety record is critical to our reputation. In addition, many of our government and commercial customers require that we maintain certain specified safety record guidelines to be eligible to bid for contracts with these customers. Furthermore, contract terms may provide for automatic termination in the event that our safety record fails to adhere to agreed-upon guidelines during performance of the contract. As a result, our failure to maintain our safety record could have a material adverse effect on our business, financial condition and results of operations.
We continue to have material weaknesses in our Internal Control over Financial Reporting (“ICFR”).
During our evaluation of our ICFR, we noted that the monitoring of invoicing process controls and the corresponding transportation and disposal process controls at our Industrial Segment subsidiaries were ineffective and were not being applied consistently. In addition, we noted that the monitoring of quote to invoicing control was ineffective at certain of our Nuclear Segment subsidiaries. These deficiencies resulted in material weaknesses to our ICFR, and could result in sales being priced and invoiced at amounts which were not approved by the customer, or the appropriate level of management, and recognition of revenue in incorrect financial reporting period. These deficiencies have resulted in our disclosure that our ICFR was ineffective as of the end of 2008 and 2007. Although these material weaknesses did not result in a material adjustment to our quarterly or annual financial statements, if we are unable to remediate these material weaknesses, there is a reasonable possibility that a misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.
We may be unable to utilize loss carryforwards in the future.
We have approximately $26,589,000 in net operating loss carryforwards which will expire from 2009 to 2028 if not used against future federal income tax liabilities. Our net loss carryforwards are subject to various limitations. Our ability to use the net loss carryforwards depends on whether we are able to generate sufficient income in the future years. Further, our net loss carryforwards have not been audited or approved by the Internal Revenue Service.
Risks Relating to our Intellectual Property
If we cannot maintain our governmental permits or cannot obtain required permits, we may not be able to continue or expand our operations.
We are a waste management company. Our business is subject to extensive, evolving, and increasingly stringent federal, state, and local environmental laws and regulations. Such federal, state, and local environmental laws and regulations govern our activities regarding the treatment, storage, recycling, disposal, and transportation of hazardous and non-hazardous waste and low-level radioactive waste. We must obtain and maintain permits or licenses to conduct these activities in compliance with such laws and regulations. Failure to obtain and maintain the required permits or licenses would have a material adverse effect on our operations and financial condition. If any of our facilities are unable to maintain currently held permits or licenses or obtain any additional permits or licenses which may be required to conduct its operations, we may not be able to continue those operations at these facilities, which could have a material adverse effect on us.
We believe our proprietary technology is important to us.
We believe that it is important that we maintain our proprietary technologies. There can be no assurance that the steps taken by us to protect our proprietary technologies will be adequate to prevent misappropriation of these technologies by third parties. Misappropriation of our proprietary technology could have an adverse effect on our operations and financial condition. Changes to current environmental laws and regulations also could limit the use of our proprietary technology.
Risks Relating to our Financial Position and Need for Financing
Breach of financial covenants in existing credit facility could result in a default, triggering repayment of outstanding debt under the credit facility.
Our credit facility with our bank contains financial covenants. A breach of any of these covenants could result in a default under our credit facility triggering our lender to immediately require the repayment of all outstanding debt under our credit facility and terminate all commitments to extend further credit. In the past, none of our covenants have been restrictive to our operations. If we fail to meet our loan covenants in the future and our lender does not waive the non-compliance or revise our covenant so that we are in compliance, our lender could accelerate the repayment of borrowings under our credit facility. In the event that our lender accelerates the payment of our borrowing, we may not have sufficient liquidity to repay our debt under our credit facility and other indebtedness.
Our amount of debt and floating rates of interest could adversely affect our operations.
At December 31, 2008, our aggregate consolidated debt was approximately $16,203,000. If our floating rates of interest experienced an upward increase of 1%, our debt service would increase by approximately $162,000 annually. Our secured revolving credit facility (the “Credit Facility”) provides for an aggregate commitment of $25,000,000, consisting of an $18,000,000 revolving line of credit and a term loan of $7,000,000. The maximum we can borrow under the revolving part of the Credit Facility is based on a percentage of the amount of our eligible receivables outstanding at any one time.otherwise. As of December 31, 2008,2022, we had borrowings under the revolving part of our Credit Facility of $6,500,000 and borrowing availability of up to an additional $5,400,000 based on our outstanding eligible receivables. A lack of operating results could have material adverse consequences on our ability to operate our business. Our ability to make principal and interest payments, or to refinance indebtedness, will depend on both our and our subsidiaries' future operating performance and cash flow. Prevailing economic conditions, interest rate levels, and financial, competitive, business, and other factors affect us. Many of these factors are beyond our control.
Risks Relating to an Investment in our Common Stock
Issuance of substantial amounts of our common stock could depress our stock price.
Any sales of substantial amounts of our Common Stock in the public market could cause an adverse effect on the market price of our Common Stock and could impair our ability to raise capital through the sale of additional equity securities. The issuance of our Common Stock will result in the dilution in the percentage membership interest of our stockholders and the dilution in ownership value. As of March 31, 2009, we had 53,985,119 shares of Common Stock outstanding.
In addition, as of March 31, 2009, we had outstanding(i) options to purchase 3,558,3471,018,400 shares of common stock at exercise prices from $1.22 to $2.98 per share. Further, we have adopted a preferred share rights plan, and if such is triggered, could result in the issuance of a substantial amount of our common stock. The existence of this quantity of rights to purchase our common stock could result in a significant dilution in the percentage ownership interest of our stockholders and the dilution in ownership value. Future sales of the shares issuable could also depress the market price of our common stock.
We do not intend to pay dividends on our common stock in the foreseeable future.
Since our inception, we have not paid cash dividends on our common stock, and we do not anticipate paying any cash dividends in the foreseeable future. Our Credit Facility prohibits us from paying cash dividends on our common stock.
The price of our common stock may fluctuate significantly, which may make it difficult for you to resell our common stock when you want or at prices you find attractive.
The price of our common stock on the Nasdaq Capital Markets constantly changes. We expect that the market price of our common stock will continue to fluctuate. This may make it difficult for you to resell the common stock when you want or at prices you find attractive.
Future issuance or potential issuance of our common stock could adversely affect the price of our common stock, our ability to raise funds in new stock offerings and dilute your percentage interest in our common stock.
Future sales of substantial amounts of our common stock in the public market, or the perception that such sales could occur, could adversely affect prevailing trading prices of our common stock, and impair our ability to raise capital through future offerings of equity. No prediction can be made as to the effect, if any, that future issuances or sales of shares of common stock or the availability of shares of common stock for future issuance, will have on the trading price of our common stock. Such future issuances could also significantly reduce the percentage ownership and dilute the ownership value of our existing common stockholders.
Delaware law, certain of our charter provisions, ouroutstanding under various incentive stock option plans
of the Company, and
(ii) an additional 60,000 shares available for issuance pursuant to an outstanding
warrantswarrant.Antitakeover Effects of Delaware Law and our preferred stock may inhibit a changeOur Certificate of control under circumstances that could give you an opportunity to realize a premium over prevailing market prices.
Incorporation and BylawsWe are a Delaware corporation governed in part, by the General Corporation Law of Delaware, or the DGCL, including the provisions of Section 203 of the General Corporation Law of Delaware,DGCL, an anti-takeover law. In general, Section 203 prohibits a Delaware public corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. As a result of Section 203, potential acquirers may be discouraged from attempting to effect acquisition transactions with us, thereby possibly depriving our security holders of certain opportunities to sell, or otherwise dispose of, such securities at above-market prices pursuant to such transactions. Further, certain of our option plans provide for the immediate acceleration of, and removal of restrictions from, options and other awards under such plans upon a “change of control” (as defined in the respective plans). Such provisions may also have the result of discouraging acquisition of us.
We haveAs of December 31, 2022, out of 30,000,000 shares of common stock authorized, we had 13,324,756 shares of common stock outstanding and unissued 17,456,534 (which include7,642 shares of treasury stock. In addition, at December 31, 2022, we had outstanding options to purchase 3,558,3471,018,400 shares of our Common Stock)common stock at exercise prices ranging from $2.79 to $7.50 per share, and an outstanding warrant to purchase 60,000 shares of Common Stockour common stock at an exercise price of $3.51 per share. Assuming the issuance of the common stock underlying such options and warrant, as of December 31, 2022, we had available for future issuance 15,589,202 shares of authorized and unissued common stock, and 2,000,000 shares of Preferred Stock as of March 31, 2009 (which includes 600,000 shares of our Preferred Stock reserved for issuance under our preferred share rights plan). Thesestock. Future sales of authorized and unissued shares could be used by our management to make it more difficult for, and thereby discourage, an attempt to acquire control of us.
OurUndesignated Preferred Share Rights PlanStock
The authorization of undesignated preferred stock in our certificate of incorporation will make it possible for our board of directors to issue preferred stock with super voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us. These and other provisions may adversely affect our stockholders.
In May 2008, we adopted a preferred share rights plan (the “Rights Plan”), designed to ensure that all of our stockholders receive fair and equal treatment in the event of a proposed takeover or abusive tender offer. However, the Rights Plan may also have the effect of
deterring,deferring, delaying or
preventing a changediscouraging hostile takeovers, or changes in control
or management of our company.Requirements for Advance Notification of Stockholder Meetings, Nominations and Proposals
Our certificate of incorporation provides that might otherwisespecial meetings of the stockholders may be called only by either the Chairman of the Board, if one has been elected, or the Chief Executive Officer, and shall be called by either such officer or the Secretary at the request in writing of a majority of the Board of Directors, but such special meetings may not be called by any other person or persons. In addition, any stockholder who wishes to bring business before an annual meeting or nominate directors must comply with the requirements set forth in our bylaws. These provisions may have the effect of deferring, delaying or discouraging hostile takeovers or changes in control or management of our company.
No Cumulative Voting
The DGCL provides that stockholders are not entitled to the right to cumulate votes in the best interestselection of directors unless our stockholders.amended and restated certificate of incorporation provides otherwise. Our certificate of incorporation does not provide for cumulative voting.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Continental Stock Transfer & Trust Company, 1 State Street, 30th Floor, New York, New York 10004-1561.
Exchange Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol “PESI.”
In general, underPLAN OF DISTRIBUTION
We may sell the securities being offered by us in this prospectus pursuant to underwritten public offerings, negotiated transactions, block trades or any combination of such methods. We may sell the securities being offered pursuant to this prospectus to or through underwriters, through dealers, through agents, or directly to one or more purchasers or through a combination of these methods. The applicable prospectus supplement will describe the terms of the Rights Plan, subject to certain limited exceptions, if a person or group acquires 20% or more of our common stock or a tender offer or exchange offer for 20% or more of our common stock is announced or commenced, our other stockholders may receive upon exerciseoffering of the rights (the “Rights”) issued under the Rights Plan the number of shares our common stock or of one-one hundredths of a share of our Series A Junior Participating Preferred Stock, par value $.001 per share, having a value equal to two times the purchase price of the Right. In addition, if we are acquired in a merger or other business combination transaction in which we are not the survivor or more than 50% of our assets or earning power is sold or transferred, then each holder of a Right (other than the acquirer) will thereafter have the right to receive, upon exercise, common stock of the acquiring company having a value equal to two times the purchase price of the Right. The purchase price of each Right is $13, subject to adjustment.
The Rights will cause substantial dilution to a person or group that attempts to acquire us on terms not approved by our board of directors. The Rights may be redeemed by us at $0.001 per Right at any time before any person or group acquires 20% or more of our outstanding common stock. The rights should not interfere with any merger or other business combination approved by our board of directors. The Rights expire on May 2, 2018.
Resale of shares offered by this prospectus could adversely affect the market price of our common stocksecurities, including: | ● | the name or names of any underwriters, if, and if required, any dealers or agents; |
| | |
| ● | the purchase price of the securities and the proceeds we will receive from the sale; |
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| ● | any underwriting discounts and other items constituting underwriters’ compensation; |
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| ● | any discounts or concessions allowed or re-allowed or paid to dealers; and |
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| ● | any securities exchange or market on which the securities may be listed or traded. |
We, and our ability to raise additional equity capital.
The sale, or availability for sale, of common stock inagents, dealers, and underwriters, as applicable, may distribute the public market pursuant to this prospectus may adversely affect the prevailing market price of our common stock and may impair our ability to raise additional capital by selling equity or equity-related securities. This prospectus includes 5,000,000 shares that will be available for resale (assuming the issuancesecurities from time to time of all of the common stock included in this offering). The resale of a substantial number of shares of our common stock in the public market pursuant to this offering, and afterwards, could adversely affect the market price for our common stock and make itone or more difficult for you to sell our shares at times and prices that you feel are appropriate.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained within this prospectus and the documents incorporated into this prospectus by reference may be deemed “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (collectively, the “Private Securities Litigation Reform Act of 1995”). All statements in this prospectus and the documents incorporated into this prospectus by reference other than a statement of historical fact are forward-looking statements that are subject to known and unknown risks, uncertainties and other factors, which could cause actual results and performance of the Company to differ materially from such statements. The words “believe,” “expect,” “anticipate,” “intend,” “will,” “may,” and similar expressions identify forward-looking statements. Forward-looking statements include, without limitation, the statements listed under “Special Note Regarding Forward-Looking Statements” in our 2008 Form 10-K, all of which are incorporated by reference herein, as well as those forward-looking statements identified in our other SEC filings incorporated by reference in this prospectus.
While we believe the expectations reflected in such forward-looking statements are reasonable, we can give no assurance such expectations will prove to be correct. There are a variety of factors which could cause future outcomes to differ materially from those described in this report, including, but not limited to:
· | general economic conditions; |
· | material reduction in revenues; |
· | inability to collect in a timely manner a material amount of receivables; |
· | increased competitive pressures; |
· | the ability to maintain and obtain required permits and approvals to conduct operations; |
· | the ability to develop new and existing technologies in the conduct of operations; |
· | ability to retain or renew certain required permits; |
· | discovery of additional contamination or expanded contamination at any of the sites or facilities leased or owned by us or our subsidiaries which would result in a material increase in remediation expenditures; |
· | changes in federal, state and local laws and regulations, especially environmental laws and regulations, or in interpretation of such; |
· | potential increases in equipment, maintenance, operating or labor costs; |
· | management retention and development; |
· | financial valuation of intangible assets is substantially more/less than expected; |
· | the requirement to use internally generated funds for purposes not presently anticipated; |
· | the inability to maintain the listing of our Common Stock on the NASDAQ; |
· | terminations of contracts with federal agencies or subcontracts involving federal agencies, or reduction in amount of waste delivered to us under these contracts or subcontracts; |
· | disposal expense accrual could prove to be inadequate in the event the waste requires retreatment; and |
· | other factors described under “Risk Factors” in this prospectus and in the other documents we have filed with the SEC and that are incorporated herein by reference, including the factors described under “Business,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and elsewhere in our annual report on Form 10-K for the fiscal year ended December 31, 2008 and that may be discussed from time to time in other reports filed with the SEC subsequent to the registration statement of which this prospectus is a part. |
Any forward-looking statement speaks only as to the date on which that statement is made. We undertake no obligation to update publicly any forward-looking statement, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
Unless otherwise indicated in the prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by this prospectus for general corporate purposes and working capital requirements, which may include the repayment of indebtedness. Under the terms of our existing Credit Facility, we may also use a portion of the net proceeds to fund possible investments in and acquisitions of complimentary businesses, partnerships, minority investments, products or technologies with the consent of our Credit Facility lender. Currently, there are no commitments or agreements regarding such acquisitions or investments that are material. Pending their ultimate use, we intend to invest the net proceeds in money market funds, commercial paper and governmental and non-governmental debt securities with maturities of up to three years. The terms of our existing Credit Facility require us to maintain such investments with our Credit Facility lender or its affiliates, which investments serve as additional collateral under the Credit Facility.
PLAN OF DISTRIBUTION
We may sell the securities:
transactions at:| | ·● | through one or more underwriters or dealers, |
| · | through a combination of any of these methods of sale. |
We may distribute the securities:
| · | from time to time in one or more transactions at a fixed price or prices, which may be changed from time to time,changed; |
| | · | at |
| ● | market prices prevailing at the timestime of sale,sale; |
| | · | at |
| ● | prices related to such prevailing market prices,prices; or |
We will describe the method of distribution of the securities in the applicable prospectus supplement.
We may determine the price or other terms of the securities offered under this prospectus by use of an electronic auction. We will describe how any auction will determine the price or any other terms, how potential investors may participate in the auction and the nature of the underwriters’ obligations, of the underwriter, dealer or agent in the applicable prospectus supplement or amendment.
We may solicit directly offers to purchase securities. We may also designate agents from time to time to solicit offers to purchase securities. Any agent that we designate, who may be deemed to be an underwriter as such term is defined in the Securities Act, may then resell such securities to the public at varying prices to be determined by such agent at the time of resale.
We may engage in “at the market” offerings of our securities as defined in Rule 415(a)(4) under the Securities Act. An “at the market” offering is an offering of our common stock at other than a fixed price, at prices prevailing at the time of sale or at prices related to such prevailing market prices, including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents. We shall name any underwriter or agent that the Company engages for an at the market offering in a post-effective amendment to the registration statement containing this prospectus. In the related prospectus supplement, we shall also describe any additional details of the Company’s arrangement with such underwriter or agent, including commissions or fees paid or discounts offered by the Company, and whether such underwriter is acting as principal or agent.
If underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation of the underwriters and any dealers) in a prospectus supplement.
Only underwriters named in a prospectus supplement are underwriters of the securities offered by that prospectus supplement. The securities may be offered to the public either through underwriting syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated. If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement. If underwriters are used in the sale,
theythe offered securities will
acquirebe acquired by the
common stockunderwriters for their own
accountaccounts and may
resell the stockbe resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering
price. Theprice or at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the
common stockoffered securities will be subject to
conditions precedent, and the
conditionsunderwriters will be obligated to purchase all of the offered securities, if any are purchased.We may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms of any over-allotment option will be set forth in the applicable underwriting agreement. Weprospectus supplement for those securities.
If we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will sell the securities to the dealer, as principal. The dealer may offerthen resell the common stocksecurities to the public at varying prices to be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified in a prospectus supplement.
We may sell the securities directly or through underwriting syndicates representedagents we designate from time to time. We will name any agent involved in the offering and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement.
We may authorize agents or underwriters to solicit offers by managinginstitutional investors to purchase securities from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
In connection with the sale of the securities, underwriters, or by underwriters without a syndicate. Underwriters, dealers or agents may receive compensation from us or from purchasers of the securities for whom they act as agents, in the form of discounts, concessions or commissions. Underwriters may sell the securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that participate in the distribution of the securities, and any institutional investors or others that purchase securities directly for the purpose of resale or distribution, may be deemed to be underwriters, and any discounts or commissions received by them from us or our purchasers (as their agentsand any profit on the resale of the common stock by them may be deemed to be underwriting discounts and commissions under the Securities Act. No FINRA member firm may receive compensation in excess of that allowable under FINRA rules, including Rule 5110, in connection with the saleoffering of securities). Thesethe securities.
We may provide agents, underwriters dealers or agents may be considered to be underwriters under the Securities Act. As a result, discounts, commissions, or profits on resale received by the underwriters, dealers or agents may be treated as underwriting discounts and commissions. Each prospectus supplement will identify any such underwriter, dealer or agent, and describe any compensation received by them from us. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents may be entitled toother purchasers with indemnification by us against certainparticular civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments made bythat the agents, underwriters dealers or agents, under agreements between usother purchasers may make with respect to such liabilities. Agents and the underwriters dealers and agents.
We may grant underwriters who participate in the distribution of securities an option to purchase additional securities to cover over-allotments, if any, in connection with the distribution.
Underwriters or agents and their associates may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business.
In connection withTo facilitate the public offering of our common stock, certaina series of securities, persons participating in suchthe offering may engage in transactions that stabilize, maintain, or otherwise affect the market price including over-allotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create asecurities. This may include over-allotments or short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchasessales of the common stocksecurities, which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In exercising the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities by bidding for or purchasing securities in the open market after the distribution is completedor by imposing penalty bids, whereby selling concessions allowed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the common stock originallyor dealers participating in any such offering may be reclaimed if securities sold by the dealer is purchased in a covering transaction to cover short positions. Those activities may cause the price of the common stock to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters whothem are qualified market makers on the NASDAQ Capital Markets may engage in passive market making transactions in the common stock on the NASDAQ Capital Global Markets in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
To the extent required, this prospectus may be amended and supplemented from time to time to describe a specific plan of distribution.
DESCRIPTION OF COMMON STOCK
Our certificate of incorporation authorizes us to issue up to 75,000,000 shares of common stock, $0.001 par value. As of April 3, 2009, there were 54,019,324 shares of our common stock issued and outstanding.
The holders of shares of our common stock are entitled to one vote per share on all matters to be voted on by stockholders. Common stock holders are entitled to receive dividends declared by the board of directors out of funds legally available for the payment of dividends, subject to the rights, if any, of preferred stock holders. However, we have never paid a dividend and we do not anticipate paying a dividend in the foreseeable future. Our current secured credit facility prohibits us from paying cash dividends on our common stock. Upon any liquidation, dissolution or winding up of our business, the holders of common stock are entitled to share equally in all assets available for distribution after payment of all liabilities and provision for liquidation preference of shares of preferred stock then outstanding. The holders of common stock have no preemptive rights and no rights to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to our common stock. All outstanding shares of common stock are fully paid and nonassessable.
Each share of our common stock includes an attached Right arising under and subject to the terms described in, the Rights Agreement, dated May 2, 2008 between us and Continental Stock Transfer & Trust Company, as rights agent. The terms of such Rights are summarized in “Rights Attaching to Our Common Stock” below.
The transfer agent and registrar for the common stock is Continental Stock Transfer & Trust Company 17 Battery Place, Floor 8, New York, New York 10004-1123.
RIGHTS ATTACHING TO OUR COMMON STOCK
On May 2, 2008, our Board of Directors declared a dividend distribution of one Right for each outstanding share of our common stock to our stockholders of record on May 12, 2008 (the “Record Date”). The Rights Agreement (as defined below) also contemplates the issuance of one Right for each share of common stock which is issued by the Company between the Record Date and the Distribution Date (or earlier redemption or termination of the Rights). The Rights are subject to the terms and conditions of the Rights Agreement, a copy of which is attached as Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on May 8, 2008. A copy of the Rights Agreement is also available upon written request to us. Because the following is a summary, the description below of the Rights and the Rights Agreement necessarily omits certain terms, exceptions, or qualifications to the statements made therein. You are advised to review the entire Rights Agreement prior to making any investment decision.
Each Right entitles the registered holder to purchase from us one one-hundredth of a share of our Series A Junior Participating Preferred Stock, par value $.001 per share (the “Preferred Shares”) at a purchase price of $13.00 per one-one hundredth of a Preferred Share (the “Purchase Price”), subject to adjustment.
Until the earlier to occur of (a) 10 days following a public announcement that a person or group of affiliated or associated persons (an “Acquiring Person”) have acquired beneficial ownership of 20% or more of our outstanding common stock (except pursuant to a Permitted Offer, as defined below, or persons excluded from being an Acquiring Person under the Rights Agreement) or (b) 10 business days (or such later date as may be determined by action of the Board of Directors prior to such time as any person becomes an Acquiring Person) following the commencement of, or announcement of an intention (which intention to commence remains in effect for 5 business days after such announcement) to make a tender offer or exchange offer, the consummation of which would result in a person or group becoming an Acquiring Person of 20% or more of our common stock (the earlier of such dates being called the “Distribution Date”), the Rights will be evidenced with respect to any of the common stock certificates outstanding and no separate Rights Certificates will be distributed.
Excluded from being an Acquiring Person under the Rights Agreement are the following (collectively, the “Excluded Persons”):
| · | any of our subsidiaries; |
| · | any employee benefit plan of us or our subsidiaries; |
| · | any entity holding common stock for or pursuant to the employee benefit plan o us or our subsidiaries; |
| · | any Person who becomes the beneficial owner of 20% or more of the common stock solely as a result of the acquisition of common stock by us, unless such Person shall, after such share purchases by us, become the beneficial owner of additional shares of common stock constituting 1% or more of the then outstanding shares of common stock; and |
| · | any person whom our Board of Directors determines in good-faith has acquired 20% or more of the common stock inadvertently and such person divests, within 10 business days after such determination, a sufficient number of shares of common stock to no longer beneficially own 20% of the common stock. |
The Rights Agreement provides that, until the Distribution Date (or earlier redemption or expiration of the Rights):
| · | the Rights will be transferred with and only with our common stock; |
| · | new common stock certificates issued after the Record Date, upon transfer or new issuance of common stock by us will contain a notation incorporating the Rights Agreement by reference; and |
| · | the surrender for transfer of any certificates for common stock, even without such notation (or a copy of a summary of rights) being attached thereto, will also constitute the transfer of Rights associated with the common stock represented by such certificate. |
As soon as practicable following the Distribution Date, separate certificates evidencing the Rights (“Right Certificates”) will be mailed to the holders of record of the common stock as of the close of business on the Distribution Date and such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will expire on May 2, 2018 (the “Final Expiration Date”), unless the Final Expiration Date is extended or unless the Rights are earlier redeemed by us, in each case, as described below.
In the event that any person becomes an Acquiring Person (except pursuant to a tender or exchange offer which is for all outstanding shares of common stock at a price and on terms which a majority of certain members of the Board of Directors determines to be adequate and in our best interests, our stockholders and other relevant constituencies, other than the Acquiring Person, its affiliates and associates (a “Permitted Offer”)), each holder of a Right (except Rights which have been voided as set forth below) will thereafter have the right (the “Flip-In Rights”) to receive upon exercise the number of shares of common stock or of one-one hundredths of a share of Preferred Shares (or, in certain circumstances, other of our securities) having a value (on the date such person became an Acquiring Person) equal to two times the Purchase Price of the Right.
In the event that at any time (a) we are acquired in a merger or other business combination transaction in which we are not the survivor, (b) a merger or other business combination with us in which we are the survivor and,repurchased in connection with such transaction, all or partstabilization transactions. The effect of the shares of common stock shall be changed for stock or other securities of any other person (or us) or (c) more than 50% of our assets or earning power is sold or transferred, then each holder of a Right (except Rights which have been voided as set forth below) shall thereafter have the right (the “Flip-Over Right”) to receive, upon exercise, common stock of the acquiring company having a value equal to two times the Purchase Price of the Right. The Flip-Over Right is not applicable tothese transactions described in (a) and (b) of this paragraph if (i) such transaction is consummated with a person who acquired common stock pursuant to a Permitted Offer; (ii) the price per share of common stock offered in such transaction is not less than the price per share of common stock paid to all holders of common stock purchased pursuant to the Permitted Offer, and (iii) the form of consideration offered in such transaction is the same as the form of consideration paid pursuant to the Permitted Offer.
The Purchase Price payable, and the number of Preferred Shares, common stock or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution:
| · | in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Preferred Shares; |
| · | upon the grant to holders of the Preferred Shares of certain rights or warrants to subscribed for or purchase Preferred Shares at a price, or securities convertible into Preferred Shares with a conversion price, less than the then current market price of the Preferred Shares; or |
| · | upon the distribution to holders of the Preferred Shares of evidences of indebtedness or assets (excluding regular periodic cash dividends paid out of earnings or retained earnings or dividends payable in Preferred Shares) or of subscription rights or warrants (other than those referred to above). |
The number of outstanding Rights and the number of one one-hundredths of a Preferred Share issuable upon exercise of each Right are also subject to adjustment in the event of a stock split of the common stock or a stock dividend on the common stock payable in common stock or subdivisions, consolidations or combinations of the common stock occurring, in any such case, prior to the Distribution Date.
Any Rights that are beneficially owned by (a) any Acquiring Person (or any affiliate or associate of such Acquiring Person), (b) a transferee of an Acquiring Person (or any affiliate or associate thereof) who becomes a transferee after the Acquiring Person becomes such, or (c) under certain conditions, a transferee of any Acquiring Person (or any affiliate or associate thereof) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such, shall be null and void and no holder of such Rights shall thereafter have rights to exercise such Rights.
At any time after a person becomes an Acquiring Person and prior to the acquisition by such Person (or affiliate or associate of an Acquiring Person) of 50% or more of the outstanding common stock, our Board of Directors may exchange the Rights (other than Rights owned by such Acquiring Person which have become void), in whole or in part, at an exchange ratio of one share of common stock, or one-one hundredth of a Preferred Share (or of a share of a class or series of the our preferred stock having equivalent rights, preferences and privileges), per Right (subject to adjustment). Upon our Board of Directors ordering the exchange, the right to exercise the Right shall terminate and the only right thereafter shall be to receive the shares in accordance with the exchange.
With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price. No fractional Preferred Shares will be issued (other than fractions which are integral multiples of one one-hundredth of a Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash will be made based onstabilize or maintain the market price of the
Preferred Sharessecurities at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described above, if implemented, may have on the
lastprice of our securities.Unless otherwise specified in the applicable prospectus supplement, any common stock sold pursuant to a prospectus supplement will be eligible for trading day prioras quoted on the Nasdaq Capital Market. Any underwriters to whom securities are sold by us for public offering and sale may make a market in the date of exercise.
Atsecurities, but such underwriters will not be obligated to do so and may discontinue any market making at any time
priorwithout notice.In order to comply with the earliersecurities laws of some states, if applicable, the Distribution Date or Final Expiration Date, our Board of Directors may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (the “Redemption Price”), adjustedsecurities offered pursuant to reflect any stock split, stock dividend or similar transaction, and payable, at our option, either in cash, shares of common stock, or any other form of consideration deemed appropriate by our Board. The redemption of the rights may be made effective at such time, on such basis and with such conditions as the Board of Directors in its sole discretion may establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holder of Rightsthis prospectus will be to receivesold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not be sold unless they have been registered or qualified for sale in the Redemption Price.applicable state or an exemption from the registration or qualification requirement is available and complied with.
The terms of the Rights Agreement and the Rights may be amended by us without the consent of the holders of the Rights, in order to cure any ambiguity, to correct or supplement any provision contained therein which may be defective or inconsistent with any other provisions contained therein, or to make any other changes or amendments to the provisions contained therein which the Company may deem necessary or desirable, except that from and after such time as any person becomes an Acquiring Person no such amendment may adversely affect the interests of the holders of the Rights (other than the Acquiring Person or any affiliate or associate of the Acquiring Person). No amendment to the Rights Agreement or the Rights shall be made which changes the redemption price or the number of Preferred Shares or shares of common stock for which a Right is exercisable or exchangeable.
Until a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote or to receive dividends.
This summary description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement.
MATTERSConner & Winters, LLP, Oklahoma City, Oklahoma will opine as to the validity of the issuance of the securities offered by this prospectus.
The consolidatedaudited financial statements and financial statement schedules as of December 31, 2008 and 2007 and for each of the three years in the period ended December 31, 2008, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2008, incorporated by reference in this Registration Statementprospectus and elsewhere in the registration statement have been so incorporated by reference in reliance onupon the reportsreport of BDO Seidman,Grant Thornton LLP, an independent registered public accounting firm (the report on the effectiveness of internal control over financial reporting expresses an adverse opinion on the effectiveness of the Company’s internal control over financial reporting as of December 31, 2008), incorporated herein by reference, given onaccountants, upon the authority of said firm as experts in auditingaccounting and accounting.
auditing.WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which is part of the registration statement, omits certain information, exhibits, schedules and undertakings set forth in the registration statement. For further information pertaining to us and our securities, reference is made to our other filings with the SEC and the registration statement and the exhibits and schedules to the registration statement. Statements contained in this prospectus as to the contents or provisions of any documents referred to in this prospectus are not necessarily complete, and in each instance where a copy of the document has been filed as an exhibit to the registration statement, reference is made to the exhibit for a more complete description of the matters involved.
In addition, registration statements and certain other filings made with the SEC electronically are publicly available through the Commission’s web site at http://www.sec.gov. The registration statement, including all exhibits and amendments to the registration statement, has been filed electronically with the SEC.
We are subject to the information and periodic reporting requirements of the Exchange Act, and, in accordance with such requirements, we file periodic reports, proxy statements, and other information with the Securities and Exchange Commission, in accordance with the Securities Exchange Act of 1934, or Exchange Act. You may read and copy any materials that we file with the Securities and Exchange Commission at the following address:
| Public Reference Room |
| 100 F Street, N.E. |
| Washington, D.C. 20549 |
| 1-800-SEC-0330 |
Please call the SEC at 1-800-SEC-0330 for further information about the public reference rooms. OurSEC. These periodic reports, proxy statements, and other information filed withwill be available for inspection and copying at the web site of the SEC are availablereferred to the public over the Internet at the SEC’s World Wide Web siteabove. We also maintain a website at http://www.sec.gov. www.perma-fix.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the Commission. The information contained in, or that can be accessed through, our website is not part of, and is not incorporated into, this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.Our SEC file number for filings madecommon stock is listed on the Nasdaq and all material filed by us with the Nasdaq can be inspected at the offices of the Nasdaq at 151 W. 42nd Street, New York, NY 10036.
You should rely only on the information in this prospectus and the additional information described above and under the Exchange Actheading “Incorporation of Certain Information by Reference” below. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely upon it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is 001-11596.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference” the information contained in documents that we file separately with the SEC, which means that we can disclose important information to you by referring you to those other documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. Therefore, before you decide to invest in a particular offering under this shelf-registration, you should always check for reports we may have filed with the SEC after the data of this prospectus.
We incorporate by reference the documents listed below:
| | ·● | Annual Report on Form 10-K for the fiscal year ended December 31, 2008,2022, filed with the SEC on March 31, 2009;23, 2023; |
| | · | |
| ● | Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2009, filed May 11, 2009; |
| · | Current Reports on Form 8-K2023, filed with the Securities and Exchange CommissionSEC on May 10, 2023; |
| | |
| ● | Current Report on Form 8-K filed with the SEC on April 26, 2023; |
| | |
| ● | Current Report on Form 8-K filed with the SEC on March 2, 2009, March 11, 2009, March 30, 2009, April 8, 2009, and May 7, 2009 (two reports);23, 2023; |
| | · | |
| ● | The description of our Series A Junior Participating Preferred Stock, par value $.001 per share, that is contained in the Form 8-A Registration Statement, filed on May 13, 2008, as amended October 2, 2008, including any amendments or reports filed for the purpose of updating such description. |
| · | The description of the common stock of the Registrant that is contained in the Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act, that became effective on October 30, 1992, including any amendments or reports filed for the purpose of updating such description. |
Also incorporatedAll documents subsequently filed by reference into this prospectus are all documents that we may filethe Registrant with the SEC underpursuant to Sections 13(a), 13(c), 14 orand 15(d) of the Exchange Act after(other than documents or portions of documents deemed to be furnished pursuant to the Exchange Act), 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 this prospectus and before we stop offering the securities described in this prospectus. These documents include periodic reports,filing of such as annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, as well as proxy statements. documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectusRegistration Statement to the extent that a statement contained herein, or in any other subsequently filed document which also is incorporated or is deemed to be incorporated by reference herein, 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 prospectus, exceptRegistration Statement.
You may obtain copies of any of these filings by contacting us as so modifieddescribed below, or superseded.
by contacting the SEC or accessing its website as described above under the heading “Where You Can Find More Information.” We will provide to each person, who so requests, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of these filings excludingany or all of the documents that are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits except to the extent such exhibitsthat are specifically incorporated by reference.reference into such documents. You may request a copy of these filings at no cost, by writing or telephoning us at the following address:
at:Perma-Fix Environmental Services, Inc.
Attention: Chief Financial Officer
8302 Dunwoody Place, #250
(770) 587-9898
Website: http://www.perma-fix.com
THE INFORMATION CONTAINED ON, OR ACCESSIBLE THROUGH, OUR WEBSITE IS NOT INCORPORATED INTO AND DOES NOT CONSTITUTE A PART OF THIS PROSPECTUS.
You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. We have not authorized anyone else to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The aggregate estimated (other than the registration fee) expenses to be paid by the Registrant in connection with this offering are as follows:
| SEC Registration Fee | | $ | 381 | |
| Legal Fees (Including Blue Sky) | | $ | 55,000 | |
| Accounting Fees and Expenses | | $ | 10,000 | |
| Printing | | $ | 2,500 | |
| Miscellaneous | | $ | 500 | |
| | | | | |
| Total: | | $ | 68,381 | |
The foregoing expenses, except for the registration fee, are estimated pursuant to Item 511 of Regulation S-K.
| SEC Registration Fee | | $ | 2,985.73 | |
| Legal Fees and Expenses | | $ | * | |
| Accounting Fees and Expenses | | $ | * | |
| Printing | | $ | * | |
| Miscellaneous | | $ | * | |
| | | | | |
| Total: | | $ | * | |
| * | Estimated expenses not presently known. |
Item 15. Indemnification of Officers and Directors
Section 145 of the Delaware Corporation Law provides that a corporation has the power to indemnify a director, officer, employee or agent of the corporation and certain other persons serving at the request of the corporation in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he is or is threatened to be made a party by reason of such position, if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such person had no reasonable cause to believe his conduct was unlawful; provided that, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the adjudicating court determines that, despite the adjudication of liability but in view of all the circumstance of the case, such person is fairly and reasonably entitled to indemnification.
Article EIGHTH of our Restated Certificate of Incorporation, as amended, provides as follows with respect to the indemnification of our officers and directors:
All persons who the Corporation is empowered to indemnify pursuant to the provisions of 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), shall be indemnified by the Corporation to the full extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. No repeal or amendment of this Article EIGHTH shall adversely affect any rights of any person pursuant to this Article EIGHTH which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment.
Our Restated Certificate of Incorporation, as amended, provides that no director shall be personally liable to us or its stockholders for any monetary damages for breaches of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (i) for any breach of the director'sdirector’s duty of loyalty to us or our 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 General Corporation Law of the State of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit.
The indemnification discussed in this Item 15 is not exclusive of any other rights the party seeking indemnification may possess. We carry officer and director liability insurance with respect to certain matters, including matters arising under the Securities Act of 1933, as amended.
See the Exhibit Index attached toimmediately following the signature page of this registration statement and incorporated herein by reference.
Registration Statement.Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
| (a) | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| | (i) | To include any prospectus required by section 10(a)(3) of the Securities Act; |
| | |
| | (ii) | To reflect in the prospectus any facts or events arising after the effective date of the 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 the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
| | |
| | (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-3 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Sections 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the 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.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
| (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. |
| | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| | |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| | (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| | (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| | (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| | |
| | (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| | |
| | (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| | |
| | (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | The undersigned registrant hereby undertakes that, for purposes 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement 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) | The undersigned registrants hereby undertake to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering. |
| | |
| (d) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have 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 registrants of expenses incurred or paid by a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of 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. |
(b) The undersigned registrant hereby undertakes that, for purposes 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement 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.SIGNATURES
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses 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 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-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on the 21st19 day of May, 2009.
2023.| | PERMA-FIX ENVIRONMENTAL SERVICES, INC. |
By:
| /s/ Dr. Louis Centofanti
| |
| | Dr. Louis F. Centofanti
Chairman of the Board
By: | /s/ Ben Naccarato |
| | Ben Naccarato, |
| | Executive Vice President and Chief ExecutiveFinancial Officer |
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Mark Duff and Ben Naccarato, and each of them acting individually and without the other, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SignatureBy | | Title/s/ Mark Duff | | Date | May 19, 2023 |
| Mark Duff, President and Chief Executive Officer; Director (Principal Executive Officer) | | | |
| | | | | |
| By | /s/ Dr. Louis F. CentofantiBen Naccarato | | Date | May 19, 2023 |
| Ben Naccarato, Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | | | | |
Dr. Louis F. Centofanti | | Chairman of the Board of Directors, President, and Chief Executive Officer
(Principal Executive Officer)
| | May 21, 2009 |
| | | | | |
| By | /s/ Ben NaccaratoThomas P. Bostick | | Date | May 19, 2023 |
| Thomas P. Bostick, Director | | | | |
Ben Naccarato | | Chief Financial Officer
(Principal Financial and Accounting Officer)
| | May 21, 2009 |
| | | | | |
| By | /s/ *Dr. Louis F. Centofanti | | Date | May 19, 2023 |
| Dr. Louis F. Centofanti, Director | | | | |
Jon Colin | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Kerry C. Duggan | | Date | May 19, 2023 |
| Kerry C. Duggan, Director | | | | |
Jack Lahav | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Joseph T. Grumski | | Date | May 19, 2023 |
| Joseph T. Grumski, Director | | | | |
Joe R. Reeder | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Joe R. Reeder | | Date | May 19, 2023 |
| Joe R. Reeder, Director | | | | |
Larry Shelton | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Larry M. Shelton | | Date | May 19, 2023 |
| Larry M. Shelton, Chairman of the Board | | | | |
Dr. Charles E. Young | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Zach P. Wamp | | Date | May 19, 2023 |
| Zach P. Wamp, Director | | | | |
Robert L. Ferguson | | Director | | May 21, 2009 |
| | | | | |
| By | /s/ *Mark A. Zwecker | | Date | May 19, 2023 |
| Mark A. Zwecker, Director | | | |
Mark A. Zwecker | | Director | | May 21, 2009II-4 |
*By | /s/ Dr. Louis Centofanti | |
| Dr. Louis F. Centofanti, Attorney in Fact |
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
REGISTRATION STATEMENT ON FORM S-3
| | Description |
| | | |
| 3(i) | | Restated Certificate of Incorporation, as amended, isof Perma-Fix Environmental Services, Inc., incorporated by reference tofrom Exhibit 3.1(i)3(i) to the Registrant’sCompany’s Form 10-K10-Q for the year ended December 31, 2008. |
| | Quarter Ended March 21, 2021 filed on May 6, 2021. |
| 3(ii) | | Second Amended and Restated Bylaws of Perma-Fix Environmental Services, Inc., as amended on October 30, 2007, iseffective April 20, 2023, incorporated by reference tofrom Exhibit 3(ii) to the Registrant’sCompany’s Form 10-Q for the quarter ended September 30, 2007. |
| | 8-K filed on April 26, 2023. |
| 4.1 | | Specimen Common Stock Certificate as incorporated by reference from Exhibit 4.3 to the Company’s Registration Statement, No. 33-51874. |
| | |
4.2 | | Loan and Security Agreement by and between the Company, subsidiaries of the Company as signatories thereto, and PNC Bank, National Association, dated December 22, 2000, as incorporated by reference from Exhibit 99.1 to the Company's Form 8-K dated December 22, 2000. |
| | |
4.3 | | FirstFifth Amendment to Loan AgreementSecond Amended and Consent, dated January 30, 2001, between the Company and PNC Bank, National Association as incorporated by reference from Exhibit 99.7 to the Company’s Form 8-K dated January 31, 2001. |
| | |
4.4 | | Amendment No. 1 toRestated Revolving Credit, Term Loan and Security Agreement dated as of June 10, 2002, between the Company and PNC Bank is incorporated by reference from Exhibit 4.3 to the Company's Form 10-Q for the quarter ended September 30, 2002. |
| | |
4.5 | | Amendment No. 2 to Revolving Credit, Term Loan and Security Agreement, dated as of May 23, 2003, between the Company and PNC Bank, as incorporated by reference from Exhibit 4.4 to the Company’s Form 10-Q for the quarter ended June 30, 2003, and filed on August 14, 2003. |
| | |
4.6 | | Amendment No. 3 to Revolving Credit, Term Loan, and Security Agreement, dated29, 2022, as of October 31, 2003, between the Company and PNC Bank, as incorporated by reference from Exhibit 4.5 to the Company’s Form 10-Q for the quarter ended September 30, 2003, and filed on November 10, 2003. |
| | |
4.7 | | Amendment No. 4 to Revolving Credit, Term Loan, and Security Agreement, dated as of March 25, 2005, between the Registrant and PNC Bank as incorporated by reference from Exhibit 4.12 to the Registrant's Form 10-K for the year ended December 31, 2004. |
| | |
4.8 | | Letter from PNC Bank regarding intent to waive technical default on the Loan and Security Agreement with PNC Bank due to resignation of Chief Financial Officer. |
| | |
4.9
| | Amendment No. 5 to Revolving Credit, Term Loan, and Security Agreement, dated June 29, 2005, between the Registrant and PNC Bank, which is incorporated by reference from Exhibit 4.1 to the Company’s Form 8-K filed June 30, 2005.
on August 29, 2022. |
| 4.2 | | |
4.10 | | Amendment No. 6 toRevised Second Amended and Restated Revolving Credit, Term Loan and Security Agreement datedreferenced as of June 12, 2007, betweenAnnex A in the Registrant and PNC Bank as incorporated by reference from Exhibit 4.1 to the Registrant's Form 10-Q for the quarter ended June 30, 2007. |
| | |
4.11 | | Fifth Amendment, No. 7 to Revolving Credit, Term Loan, and Security Agreement, dated as of July 18, 2007, between the Registrant and PNC Bank as incorporated by reference from Exhibit 4.2 to the Registrant'sCompany’s Form 10-Q for the quarter ended June 30, 2007.8-K filed on August 29, 2022. |
| 4.3 | | |
4.12 | | Sixth Amendment No. 8 to Second Amended and Restated Revolving Credit, Term Loan and Security Agreement dated as of November 2, 2007,March 21, 2023, between the RegistrantPerma-Fix Environmental Services, Inc. and PNC Bank, as incorporated by reference from Exhibit 4.1 to the Registrant's Form 10-Q for the quarter ended September 30, 2007. |
| | |
4.13 | | Amendment No. 9 to Revolving Credit, Term Loan, and Security Agreement, dated as of December 18, 2007, between the Registrant and PNC Bank, as incorporated by reference from Exhibit 4.14 to the Registrant’s Form 10-K for the year ended December 31, 2007. |
4.14 | | Amendment No. 10 to Revolving Credit, Term Loan, and Security Agreement, dated as of March 26, 2008, between the Registrant and PNC Bank, as incorporated by reference from Exhibit 4.15 to the Registrant’s Form 10-K for the year ended December 31, 2007. |
| | |
4.15 | | Amendment No. 11 to Revolving Credit, Term Loan, and Security Agreement, dated as of July 25, 2008, between the Registrant and PNC Bank, as incorporated by reference from Exhibit 4.1 to the Registrant’s Form 10-Q for the quarter ended June 30, 2008 filed on August 11, 2008. |
| | |
4.16 | | Amendment No. 12 to Revolving Credit, Term Loan, and Security Agreement, dated as of July 25, 2008, between the Registrant and PNC Bank, as incorporated by reference from Exhibit 4.2 to the Registrant’s Form 10-Q for the quarter ended June 30, 2008 filed on August 11, 2008. |
| | |
4.17 | | Amendment No. 13 to Revolving Credit, Term Loan, and Security Agreement, dated as of March 5, 2009, between the Registrant and PNC Bank, as incorporated by reference from Exhibit 99.1 to the Registrant’s Form 8-K filed on March 11, 2009. |
| | |
4.18 | | Rights Agreement dated as of May 2, 2008 between the Registrant and Continental Stock Transfer & Trust Registrant, as Rights Agent, as incorporated by reference from Exhibit 4.1 to the Registrant’s Form 8-K filed on May 8, 2008. |
| | |
4.19 | | Letter Agreement dated September 29, 2008, between the Registrant and Continental Stock Transfer & Trust Company,National Association, as incorporated by reference from Exhibit 4.3 to the Company’s Form 8-A/A10-K filed on October 2, 2008.March 23, 2023. |
| 5.1* | | |
4.20 | | Loan and Securities Purchase Agreement, dated May 8th, 2009 between William N. Lampson, Diehl Rettig, and the Registrant, is incorporated by reference to Exhibit 4.1 to the Registrant’s Form 10-Q for the quarter ended March 31, 2009, filed on May 11, 2009. |
| | |
4.21 | | Promissory Note dated May 8, 2009 issued by the Registrant. in favor of William Lampson and Diehl Rettig is incorporated by reference to Exhibit 4.2 to the Registrant’s Form 10-Q for the quarter ended March 31, 2009, filed on May 11, 2009. |
| | |
4.22 | | Common Stock Purchase Warrant, dated May 8, 2009, issued to William N. Lampson is incorporated by reference to Exhibit 4.3 to the Registrant’s Form 10-Q for the quarter ended March 31, 2009, filed on May 11, 2009. |
| | |
4.23 | | Common Stock Purchase Warrant, dated May 8, 2009, issued to Diehl Rettig is incorporated by reference to Exhibit 4.4 to the Registrant’s Form 10-Q for the quarter ended March 31, 2009, filed on May 11, 2009. |
| | |
5.1 | | Opinion of Conner & Winters, LLP.LLP, counsel to the Registrant, regarding the legality of the securities being registered. |
| 23.1* | | Consent of Grant Thornton LLP |
23.123.2* | | Consent of BDO Seidman, LLP |
| | |
23.2 | | Consent of Conner & Winters, LLP (included in Exhibit 5.1 to this registration statement) |
| | 5.1) |
| 24.1 | | Power of Attorney (included on signature page II-4 to this registration statement).*hereof) |
| 107* | | Calculation of Filing Fee Table. |
| * | Previously filed. | Filed herewith. |
