-----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, IysXD3af3sYC3a8QXig3X3HFtJc+VW9JEv74rCJ+QHR8pnVWHwrEh0d0+QTzdQs4 xGw0sty8sDkJfVLH9QQ38Q== 0000950124-97-004481.txt : 19970826 0000950124-97-004481.hdr.sgml : 19970826 ACCESSION NUMBER: 0000950124-97-004481 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970825 EFFECTIVENESS DATE: 19970825 SROS: NONE 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: 333-34327 FILM NUMBER: 97669426 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 FORM S-8 1 As filed with the Securities and Exchange Commission on August 25, 1997 ------ Registration No. 333- ------- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 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 (I.R.S. Employer of incorporation or organization) Identification No.) 7000 Boulevard East Guttenberg, New Jersey 07093 (Address of Principal Executive Offices) (Zip Code) KTI, INC. 1994 LONG-TERM INCENTIVE AWARD PLAN (Full title of the plan) Robert E. Wetzel, Esq. c/o 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
=================================================================================================== Title of each class of Proposed maximum Proposed maximum Amount of securities to be Amount to be offering price per aggregate offering registration registered registered (1) share(2) price (2) fee - --------------------------------------------------------------------------------------------------- Common Stock, no par value 500,000 $ 9.625 $ 4,812,500 $ 1,459 ===================================================================================================
(1) The number of shares being registered represents the number of shares of Common Stock that may be issued pursuant to the KTI, Inc. 1994 Long-Term Incentive Award Plan (the "Plan") in addition to shares previously registered under the Plan. (2) Pursuant to Rule 457(h)(1), the proposed maximum offering price per share and the proposed maximum aggregate offering price are based upon the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on August 20, 1997. 2 PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. KTI, Inc. (the "Company") hereby incorporates by reference the following documents: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1996; (b) The Company's Quarterly Report on Form 10-Q for the quarter ending March 31, 1997 and the Company's Quarterly Report on Form 10-Q for the quarter ending June 30, 1997, as amended by Form 10-Q/A filed August 25, 1997; (c) The Company's Current Reports on Form 8-K filed May 29, 1997, June 16, 1997, June 27, 1997, August 1, 1997 and August 18, 1997 and the Company's amendment to Current Report on Form 8-K/A filed January 31, 1997; and (d) The description of the Company's Common Stock, no par value (the "Common Stock"), contained in the Company's Registration Statement on Form 8-A dated February 1, 1995 filed by the Company under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any amendment or report filed for the purpose of updating such description of Common Stock filed subsequent to the date of this Prospectus and prior to the termination of the offering described herein. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934 subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. The description of the Company's capital stock to be offered pursuant to this Registration Statement has been incorporated by reference into this Registration Statement as described in Item 3 of this Part II. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Company's Restated Certificate of Incorporation provides that it shall indemnify its officers, directors, employees and agents to the full extent permitted by law. Statutory authority for such indemnification is contained in Title 14A, New Jersey Business Corporation Act, Revised Statutes of New Jersey, N.J.S.A. 14A:3-5, the material provisions of which may be summarized as follows: NON-DERIVATIVE PROCEEDINGS (PROCEEDINGS OTHER THAN THOSE BROUGHT BY OR IN THE RIGHT OF THE CORPORATION). A corporation may indemnify an actual or prospective party to a proceeding or investigation if he became such because he is or was a director, officer, employee or agent of the corporation, or of a constituent corporation absorbed by such corporation in a consolidation or merger, or is or was serving at the request of the indemnifying or constituent corporation as a director, officer, trustee, employee or agent of another enterprise. To be eligible for such indemnity, the party must 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 also, in a criminal proceeding, he must have had no reasonable cause to believe that his conduct was unlawful. Such indemnity may be against judgments, fines, settlements, and penalties and reasonable expenses (including counsel fees) incurred in connection with such proceeding. -2- 3 DERIVATIVE PROCEEDINGS (PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION). A corporation may indemnify such actual or prospective party to a proceeding or investigation against his reasonable expenses (including counsel fees) if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, but not against judgments, fines, settlements or penalties in connection with such proceedings or investigation. However, if such party has been adjudged to be liable to the corporation, he may be indemnified for expenses only if a court determines that, despite such adjudication of liability, in the circumstances of the case indemnity of such party is fair and reasonable. DETERMINATION REGARDING INDEMNIFICATION. Indemnification of a party (unless ordered by a court) is dependent upon a determination that such indemnification is proper because the party has met the above standards applicable to him, such determination to be made (a) by the Board of Directors or a committee thereof acting by a majority vote of a quorum consisting of directors who were not parties to or otherwise involved in the proceedings or (b) under certain circumstances, by independent legal counsel in a written opinion or by the shareholders of the corporation. Upon the making of such determination in the appropriate manner, a corporation may advance expenses in connection with a proceeding upon receipt of an undertaking by the party to repay them if it is ultimately determined that he is not entitled to indemnification. OTHER MATERIAL PROVISION. In all cases, if the party has been successful in a proceeding on the merits or otherwise, or in defense of any matter therein, he is entitled to indemnification for his reasonable expenses (including counsel fees). The indemnification provided by statute is not exclusive of other rights of indemnification and inures to the benefit of the party's legal representative. A corporation may purchase and maintain insurance against expenses incurred by, and liabilities asserted against, directors, officers, employees or agents whether or not the corporation would be empowered to provide such indemnity. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. No securities are to be reoffered or resold pursuant to this Registration Statement. -3- 4 ITEM 8. EXHIBITS Exhibit Number Description 4.1 Specimen Form of Common Stock Certificate (incorporated by reference to the Company's Registration Statement on Form S-4, File No. 33-85234). 5.1 Opinion and Consent of Robert E. Wetzel, Esq. 23.1 Consent of Ernst & Young LLP 23.2 Consent of Robert E. Wetzel, Esq. (included in Exhibit 5.1) ITEM 9. UNDERTAKINGS. A. Post-Effective Amendments. 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 of 1933; (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 a 20% 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) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-3, Form S-8 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 Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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- 5 B. Subsequent Documents Incorporated by Reference. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 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. C. Claims for Indemnification. Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 other 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. -5- 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Guttenberg, State of New Jersey, on August 22, 1997. KTI, INC. By /s/ Nicholas Menonna, Jr. -------------------------------------------- Nicholas Menonna, Jr., Chairman of the Board of Directors and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated:
Name Title Date ---- ----- ---- /s/ Nicholas Menonna, Jr. Chairman and Chief August 22, 1997 - ------------------------- Executive Officer -- Nicholas Menonna, Jr. (principal executive officer) /s/ Martin J. Sergi Vice Chairman of the Board, August 22, 1997 - --------------------- President, Chief Operating -- Martin J. Sergi Officer, Chief Financial Officer Treasurer and Director (principal financial and accounting officer) /s/ Ross Pirasteh Chairman of the Executive August 22, 1997 - --------------------- Committee and Director -- Ross Pirasteh /s/ Dibo Attar Director August 21, 1997 - --------------------- -- Dibo Attar /s/ Paul Kleinsitis Director August 22, 1997 - --------------------- -- Paul Kleinsitis Director August , 1997 - --------------------- -- Jack Polak /s/ Jeffrey R. Power Director August 20, 1997 - --------------------- -- Jeffrey R. Power /s/ Kenneth A. Rubin Director August 21, 1997 - --------------------- -- Kenneth A. Rubin
-6- 7 EXHIBIT INDEX
Exhibit Number Description -------------- ----------- 4.1 Specimen Form of Common Stock Certificate (incorporated by reference to the Company's Registration Statement on Form S-4, File No. 33-85234). 5.1 Opinion and Consent of Robert E. Wetzel, Esq. 23.1 Consent of Ernst & Young LLP 23.2 Consent of Robert E. Wetzel, Esq. (included in Exhibit 5.1)
-7- EX-5.1 2 EXHIBIT 5.1 1 EXHIBIT 5.1 [Letterhead of Robert E. Wetzel, Esq.] Board of Directors KTI, Inc. 7000 Boulevard East Guttenberg, New Jersey 07093 Ladies and Gentlemen: As General Counsel of KTI, Inc., a New Jersey corporation (the "Company"), I have participated in the preparation of a Registration Statement on Form S-8 relating to the sale by the Company from time to time of up to 500,000 shares of Common Stock, no par value, of the Company (the "Shares"), issuable pursuant to awards granted under the Company's 1994 Long-Term Incentive Award Plan. I have examined such documents and have reviewed such questions of law as I have considered necessary and appropriate for the purposes of the opinions set forth below. In rendering my opinions set forth below, I have assumed the authenticity of all documents submitted to me as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to me as copies. I have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to this opinion, I have relied upon certificates of officers of the Company and of public officials. Based on the foregoing, I am of the opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. My opinions expressed above are limited to the laws of the State of New Jersey. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Robert E. Wetzel EX-23.1 3 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the KTI, Inc. 1994 Long-Term Incentive Award 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. Ernst & Young LLP Hackensack, New Jersey August 22, 1997 -----END PRIVACY-ENHANCED MESSAGE-----