-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EiFB+Gor0RZabJwoG6ARBODSGXGwPz3VEWIgBFHOoAyl/9cr8xwFi+a9bdpcOEyo uAw24P6aJERnHNa31/dOaQ== 0000914760-97-000095.txt : 19970512 0000914760-97-000095.hdr.sgml : 19970512 ACCESSION NUMBER: 0000914760-97-000095 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970509 EFFECTIVENESS DATE: 19970509 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: KTI INC CENTRAL INDEX KEY: 0000931581 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 222665282 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-26757 FILM NUMBER: 97598771 BUSINESS ADDRESS: STREET 1: 7000 BLVD E CITY: GUTTENBERG STATE: NJ ZIP: 07093 BUSINESS PHONE: 2018547777 MAIL ADDRESS: STREET 1: 7000 BOULEVARD EAST CITY: GUTTENBERG STATE: NJ ZIP: 07093 S-8 1 As filed with the Securities and Exchange Commission on May 9, 1997. Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ____________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ___________________________ KTI, INC. (Exact Name of Registrant as Specified in its Charter) New Jersey 22-2665282 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 7000 BOULEVARD EAST GUTTENBERG, NEW JERSEY 07093 (Address of Principal Executive Offices) KTI, INC. 401(K) SAVINGS & INVESTMENT PLAN (Full Title of the Plan) ROBERT E. WETZEL, ESQ. KTI, INC. 7000 BOULEVARD EAST GUTTENBERG, NEW JERSEY 07093 (Name and Address of Agent For Service) (201) 854-7777 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
Proposed Proposed Title of Amount Maximum Maximum Securities to be Offering Aggregate Amount of to be Registered Pricing Offering Registration Registered Per Share* Price* Fee Common Stock, no 200,000 Shares $8.1875 $1,637,500 $497.00 par value * Estimated solely for the purpose of calculating the registration fee in accordance with rule 457(c) and (h) under the Securities Act of 1933 on the basis of the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market System on May 7, 1997.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents are incorporated by reference into this registration statement: (1) The Annual Report of KTI, Inc. (the "Company") on Form 10-K for the year ended December 31, 1996, which has heretofore been filed by the Company with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"). (2) The description of the Company's Common Stock contained in the Company's registration statement on Form 8-A filed with the Commission pursuant to Section 12 of the 1934 Act. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 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 in this registration statement and to be a part hereof from the date of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as "Incorporated Documents"); provided, however, that the documents enumerated above or subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 in each year during which the offering made by this registration statement is in effect prior to the filing with the Commission of the registrant's Annual Report on Form 10-K covering such year shall not be Incorporated Documents or be incorporated by reference in this registration statement or be a part hereof from and after the filing of such Annual Report on Form 10-K. Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. The securities to be offered are registered under Section 12(g) of the 1934 Act. Item 5. Interest of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Certain provisions of the New Jersey Business Corporation Act provide that the Company may indemnify the directors and officers of the Company and affiliated companies against liabilities and expenses incurred by reason of the fact that such persons were serving in such capacities, subject to certain limitations and conditions set forth in the statute (N.J.S.A. 14A:3-5). Articles Sixth and Seventh of the Restated Certificate of Incorporation of the Company provides that the Company shall indemnify its directors and officers to the fullest extent permitted by New Jersey law. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Reference is made to the Exhibit Index. Item 9. Undertakings. The 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 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933 (the "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) That, for the purposes of determining any liability under the 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 Securities Exchange Act of 1934) 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. (4) 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. (5) Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6 or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Guttenberg, State of New Jersey, on the 7th day of May, 1997. KTI, INC. By: /s/ Nicholas Menonna, Jr. Nicholas Menonna, Jr. Chairman of the Board of Directors and Chief Executive Officer POWER OF ATTORNEY We, the undersigned officers and directors of KTI, Inc., hereby severally constitute Nicholas Mennona, Jr. and Martin J. Sergi and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all amendments (including post-effective amendments) to said registration statement, and generally to do all such things in our name and behalf in the capacities indicated below to enable KTI, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto. Pursuant to the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 7th day of May, 1997. Signature Title /s/ Nicholas Menonna, Jr. Chairman and Chief Executive Officer Nicholas Menonna, Jr. (Principal Executive Officer) /s/ Martin J. Sergi Vice Chairman, President, Chief Martin J. Sergi Operating Officer, Chief Financial Officer, Treasurer, and Director (Principal Financial Officer and Principal Accounting Officer) /s/ Dibo Attar Director Dibo Attar /s/ Jack Polak Director Jack Polak /s/ Jeffrey R. Power Director Jeffrey R. Power /s/ Ross Pirasteh Director Ross Pirasteh EXHIBIT INDEX Exhibits marked with an asterisk (*) are incorporated by reference to documents previously filed by Registrant with the Securities and Exchange Commission, as indicated. All other documents listed are filed with this registration statement. Exhibit Number Description 4.1 * Restated Certificate of Incorporation of Registrant (filed as an exhibit to Registrant's Form 8-K dated March 13, 1995). 4.2 * By-laws of Registrant (filed as an exhibit to Registrant's Form 10-K for the year ended December 31, 1996). 5 Opinion (including consent) of McDermott, Will & Emery 23 Consent of Ernst & Young EX-5 2 EXHIBIT 5 McDERMOTT, WILL & EMERY 50 Rockefeller Plaza New York, New York 10020-1605 May 8, 1997 KTI, Inc. 7000 Boulevard East Guttenberg, New Jersey 07093 Re: Registration of 200,000 Shares of Common Stock, No Par Value (the "Common Stock"), of KTI, Inc. (the "Company") to be Issued to the KTI, Inc. Retirement Savings Plan (the "Plan") Ladies and Gentlemen: We have acted as your special counsel in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of the above-captioned securities, which may be issued pursuant to the Plans. In arriving at the opinions expressed below we have examined the Registration Statement, and such other documents as we have deemed necessary to enable us to express the opinions hereinafter set forth. We have also reviewed such questions of law as we considered necessary or appropriate for the purposes of such opinions. In addition, we have examined and relied, to the extent we deemed proper, on certificates of officers of the Company as to factual matters, on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and certificates of public officials and other persons as we have deemed appropriate. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the original documents of all documents submitted to as copies, and the genuineness of all signatures on documents reviewed by us and the legal capacity of natural persons. Members of our firm are admitted to the bar of the State of New York. We express no opinion as to the laws of any jurisdiction other than the laws of the State of New York and, to the extent specifically referred to herein, the New Jersey Business Corporation Act (the "NJBCA") and the Federal laws of the United States of America. While we are not licensed to practice law in the State of New Jersey, we have reviewed applicable provisions of the NJBCA as we have deemed appropriate in connection with the opinions expressed herein. Except as described, we have neither examined nor do we express any opinion with respect to New Jersey Law. Based upon and subject to the foregoing and assuming that with regard to the future issuance of shares of Common Stock to the Plan, such issuances are duly authorized by the Company's Board of Directors, we are of the opinion that the Common Stock, when issued to the Plan, will be legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption "Legal Opinions" in the Prospectus forming a part of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ McDermott, Will & Emery EX-23 3 EXHIBIT 23 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the KTI, Inc. 401(k) Savings Investment Plan of our reports dated February 28, 1997 and February 7, 1997 with respect to the consolidated financial statements and schedule of KTI, Inc. and the financial statements of Penobscot Energy Recovery Company (a Limited Partnership), respectively, included in the Annual Report (Form 10-K) of KTI, Inc. for the year ended December 31, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Hackensack, New Jersey May 2, 1997 -----END PRIVACY-ENHANCED MESSAGE-----