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As filed with the Securities and Exchange Commission on April 16, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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RECYCLING INDUSTRIES, INC.
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(Exact name of Registrant specified in its charter)
Colorado 84-1103445
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(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
9780 S. Meridian Blvd., Suite 180
Englewood, Colorado 80112
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(Address of Principal Executive Offices) Zip Code
RECYCLING INDUSTRIES, INC.
INCENTIVE STOCK OPTION PLAN
and
NON-QUALIFIED STOCK OPTION PLAN
and
1995 NON-STATUTORY STOCK OPTION PLAN
and
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
and
1997 EXECUTIVE STOCK OPTION PLAN
(Full title of the plan)
Thomas J. Wiens, Chairman and Chief Executive Officer
9780 S. Meridian Blvd., Suite 180, Englewood, CO 80112
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(Name and address of agent for service)
303-790-7372
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(Telephone number, including area code, of agent for service)
Copies to:
Gerald Raskin, Esq.
John W. Kellogg, Esq.
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
(303) 571-1400
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to be Offering Aggregate Amount of
Securities to be Registered Price Offering Registration
Registered (1) per Price Fee
Share
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Common Stock, 200,000 (1) $ 952,538 $ 281
$.01 par value
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Common Stock, 50,000 (2) $ 110,373 $ 33
$.01 par value
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Common Stock, 2,000,000 (3) $ 6,818,592 $ 2,011
$.01 par value
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Common Stock, 500,000 (4) $ 2,773,850 $ 818
$.01 par value
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Common Stock, 4,000,000 (5) $10,649,240 $ 3,142
$.01 par value
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TOTALS 6,750,000 $21,194,220 $ 6,285
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(1) Registration of 200,000 shares of common stock issuable upon the exercise
of options granted or available for grant pursuant to the Registrant's
Incentive Stock Option Plan as follows: 41,000 shares at an exercise price
of $2.50 per share, 6,000 shares at $6.25 per share, 24,000 shares at
$2.78125 per share, and 129,000 shares available for grant at a price of
$5.7813 (pursuant to Rule 457(c), the average of the high and low price of
Recycling Industries, Inc. common stock on Thursday, April 9, 1998).
(2) Registration of 50,000 shares of common stock issuable upon the exercise of
options granted pursuant to the Registrant's Non-Qualified Stock Option
Plan as follows: 30,500 shares at an exercise price of $2.78125 per share
and 19,500 shares at an exercise price of $1.31 per share.
(3) Registration of 2,000,000 shares of common stock issuable upon the exercise
of options granted or available for grant pursuant to the Registrant's 1995
Non-Statutory Stock Option Plan as follows: 300,000 shares at an exercise
price of $2.87, 700,000 shares at an exercise price of $5.71 per share,
138,000 shares at an exercise price of $2.00 per share, 728,000 shares at
an exercise price of $1.31 per share, 10,000 shares at an exercise price of
$1.750 per share, and 123,400 shares available for grant at a price of
$5.7813 per share (pursuant to Rule 457(c), the average of the high and low
price of Recycling Industries, Inc. common stock on Thursday, April 9,
1998).
(4) Registration of 500,000 shares of common stock issuable upon the exercise
of options granted or available for grant pursuant to the Registrant's 1995
Non-Employee Director Plan as follows: 15,000 shares at $2.87 per share,
15,000 shares at $6.531 per share, 15,000 shares at $1.625 per share, 5,000
shares at $1.375 per share and 450,000 shares available to grant at $5.7813
per share (pursuant to Rule 457(c), the average of the high and low price
of Recycling Industries, Inc. common stock on Thursday, April 9, 1998).
(5) Registration of 4,000,000 shares of common stock issuable upon the exercise
of options granted or available for grant pursuant to the Registrant's 1997
Executive Stock Option Plan as follows: 1,810,00 shares
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at $1.25 per share, 1,100,000 shares at $5.71 per share, 254,321 shares at
$2.43 per share, 293,000 shares at $2.00 per share, 500,000 shares
at $1.31 per share and 42,679 shares available for grant at $5.7813
per share (pursuant to Rule 457(c), the average of the high and low
price of Recycling Industries, Inc. common stock on Thursday,
April 9, 1998).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. PLAN INFORMATION.
Recycling Industries, Inc. (the "Registrant") will provide to the option
holders (the "Recipients") the documents which contain information related to
the plans which provide for their options and other information including,
but not limited to, the disclosure required by Item 1 of Form S-8, which
information is not filed as a part of this Registration Statement and Form
S-8 (the "Registration Statement"). The foregoing information and the
documents incorporated by reference in response to Item 3 of Part II of this
Registration Statement taken together constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act"). A Section 10(a) prospectus will be given to each Recipient
who receives shares of common stock covered by this Registration Statement,
in accordance by Rule 428(b)(1) under the Securities Act.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant will provide to the Recipients a written statement advising
them of the availability without charge, upon written or oral notice, of
documents incorporated by reference in Item 3 of Part II of this Registration
Statement and of documents required to be delivered pursuant to Rule 428(b)
under the Securities Act. The statement will include the address and telephone
number to which their requests should be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents filed with the Commission:
(1) Registrant's Annual Report on Form 10-K/A for the year ended
September 30, 1997;
(2) Registrant's quarterly report on Form 10-Q for the quarter ended
December 31, 1997;
(3) Registrant's current report on Form 8-K filed December 22, 1997;
(4) Registrant's current report on Form 8-K filed December 24, 1997;
(5) Registrant's current report on Form 8-K filed December 31, 1997;
(6) Registrant's current report on Form 8-K/A filed February 11, 1998; and
(7) The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A, as filed with the Commission on
June 28, 1995.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all shares offered hereunder have been sold or 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.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Colorado Business Corporation Act (the "CBCA") authorizes the
indemnification of and advancement of expenses to directors, officers,
employees, fiduciaries and agents of a Colorado corporation against
liabilities which they may incur in such capacities. Article V.B of the
Company's Amended and Restated Articles of Incorporation provides that the
Company shall indemnify and may advance expenses to its directors to the
maximum extent permitted by the CBCA and shall indemnify its officers,
employees or agents who are not directors to the maximum extent permitted by
the CBCA or to a greater extent as may be consistent with law and provided
for by resolution of the Company's shareholders or directors, or in a
contract. A summary of the circumstances in which such indemnification is
allowable under the CBCA is provided below, but that description is qualified
in its entirety by reference to the relevant section of the CBCA.
In general, the CBCA provides that any director may be indemnified
against liabilities (including the obligation to pay a judgment, settlement,
penalty, fine or reasonable expense) incurred in a proceeding and have
expenses advances for such a proceeding (including any civil, criminal or
investigative proceeding whether threatened, pending or completed) to which
the director was made a party because he is or was a director, except that,
if the proceeding is brought by or in the right of the Company in which a
director is adjudged liable to the Company, or in connection with any
proceeding charging improper personal benefit to the director in which the
director in which the director is adjudged liable for receipt of an improper
personal benefit.
Indemnity may be provided only if the director's actions resulting in
the liability: (i) were taken in good faith; (ii) were reasonably believed
to have been in the Company's best interest with respect to actions taken in
director's official capacity; (iii) were reasonably believed not to be
opposed to the Company's best interest with respect to actions other than
those taken in the director's official capacity; and (iv) with respect to any
criminal action, the director had no reasonable cause to believe his or her
conduct was unlawful. Indemnification may be awarded only after the
applicable standard of conduct has been met by the director to be indemnified
as determined by (i) a majority vote of directors not party to the proceeding
comprising a quorum of the Board of Directors or, if a quorum cannot be
obtained, by committee thereof consisting of two or more directors not party
to the proceeding; (ii) by independent legal counsel selected by the Board of
Directors; or (iii) by the shareholders.
The CBCA further provides that unless limited by the Company's articles
of incorporation,a director or officer who is wholly successful, on the
merits or otherwise, in defense of any proceeding to which he was a party, is
entitled to receive indemnification against reasonable expenses, including
attorneys' fees, incurred in connection with the proceeding. The Company's
Amended and Restated Articles of Incorporation do not limit the foregoing
provisions.
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The Company may indemnify or advance expenses to an officer, employee,
fiduciary or agent who is not a director to a greater extent than permitted
for indemnification of directors, if consistent with law and if provided for
by its articles of incorporation, bylaws, resolution of its shareholders or
directors or in a contract. The provision of indemnification to persons
other than directors is subject to such limitations as may be imposed on
general public policy grounds.
Upon petition by a director or officer, a court may order the Company to
indemnify such director or officer against liabilities arising in connection
with any proceeding. A court may order the Company to provide such
indemnification, whether or not he was entitled to indemnification by the
Company. To order indemnification, the court must determine that the
director or officer is fairly and reasonably entitled to indemnification in
light of the circumstances. With respect to liability incurred by a director
or officer, or in any proceeding where liability results on the basis that a
personal benefit was received improperly, a court may only require that the
director or officer be indemnified as to reasonable expenses incurred.
The CBCA specifies that any provisions for indemnification of or
advances for expenses to directors which may be contained in the Company's
articles of incorporation, bylaws, resolutions of its shareholders or
directors, or in a contract (except for insurance policies) shall be valid
only to the extent such provisions are consistent with the CBCA and any
limitations upon indemnification set forth in the articles of incorporation.
The CBCA also grants the power to the Company to purchase and maintain
insurance policies which protect any director, officer, employee, fiduciary
or agent against any liability asserted against or incurred by them in such
capacity arising out of their status as such. Such policies may provide for
indemnification whether or not the corporation would otherwise have the power
to provide for it. No such policies have been obtained by the Company.
Article V.A of the Company's Amended and restated Articles of
Incorporation provides for the elimination of personal liability for monetary
damages for the breach of fiduciary duty as a director except for liability
(i) resulting from a breach of the director's duty of loyalty to the Company
or its shareholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of the law; (iii) for
approving payment of a dividend, a stock repurchase, a distribution of assets
to shareholders during liquidation or the making or guaranteeing of a loan to
a director, to the extent that any such actions are illegal under the CBCA;
or (iv) for any transaction from which a director derives an improper
personal benefit. This Article further provides that the personal liability
of the Company's directors shall be eliminated or limited to the fullest
extent permitted by the CBCA.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
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Item 8. EXHIBITS.
The following is a complete list of exhibits filed as a part of this
Registration Statement, which Exhibits are incorporated herein.
4.1 Amended and Restated Articles of Incorporation (incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1, filed
May 3, 1996, as amended, Commission File No. 333-4574)
5.1 Opinion of Counsel and Consent of Friedlob Sanderson Raskin Paulson &
Tourtillott, LLC
23.1 Consent of Friedlob Sanderson Raskin Paulson & Tourtillott, LLC - See
Exhibit 5.1.
23.2 Consent of BDO Seidman, L.L.P.
23.3 Consent of A.J. Robbins, P.C.
24.1 Power of Attorney - Included on Signature Page
Item 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (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
additional or changed material information on the plan of distribution.
(a) (2) That, for determining any liability under the Securities Act, it
will treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of such securities at that time to be the
initial BONA FIDE offering.
(a) (3) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) For purposes of determining any liability under the Securities Act,
each annual report pursuant to section 13(a) or 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
a BONA FIDE offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Englewood, State of Colorado, on
April 1, 1998.
RECYCLING INDUSTRIES, INC.
By /s/ Thomas J. Wiens
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Thomas J. Wiens, Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and/or
directors of Recycling Industries, Inc., by virtue of their signatures
appearing below, hereby constitute and appoint Thomas J. Wiens and Brian L.
Klemsz, each with full power of substitution, as attorneys-in-fact in their
names, places and steads to execute any and all amendments to this
Registration Statement on Form S-8 in the capacities set forth opposite their
names below and hereby ratify all that said attorneys-in-fact may do by
virtue thereof.
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 dates indicated.
Signatures Title Date
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/s/ Thomas J. Wiens Principal Executive Officer April 1, 1998
- ---------------------------- Director
Thomas J. Wiens
/s/ Luke F. Botica Vice Chairman April 1, 1998
- ---------------------------- Director
Luke F. Botica
/s/ Brian L. Klemz Principal Financial Officer April 1, 1998
- ---------------------------- Director
Brian L. Klemsz
/s/ Jerome B. Misukanis Director April 1, 1998
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Jerome B. Misukanis
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/s/ Graydon H. Neher Director April 1, 1998
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Graydon H. Neher
/s/ Barry L. Plost Director April 1, 1998
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Barry L. Plost
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EXHIBIT 5.1
April 15, 1998
Board of Directors
Recycling Industries, Inc.
9780 S. Meridian Boulevard, Suite 180
Englewood, Colorado 80112
Re: Registration Statement on Form S-8
Opinion of Counsel
Gentlemen:
As counsel for Recycling Industries, Inc. (the "Corporation"), a
Colorado corporation, we have examined the Certificate of Incorporation, the
Bylaws and Minutes of the Corporation and such other corporate records,
documents and proceedings, and have considered such questions of law as we
deemed relevant for the purpose of this opinion. We have also, as such
counsel, examined the Corporation's Registration Statement on Form S-8 (the
"Registration Statement"), which will be filed with the Securities and
Exchange Commission today or shortly thereafter, covering the sale of an
aggregate of up to 6,750,000 shares (the "Shares") of the Corporation's
common stock under the Corporation's Incentive Stock Option Plan,
Non-Qualified Stock Option Plan, 1995 Non-Statutory Stock Option Plan, 1995
Non-Employee Director Stock Option Plan and 1997 Executive Stock Option Plan
as described in and in accordance with the terms of the Registration
Statement.
Based upon the foregoing, we are of the opinion that the Shares will be
duly and validly issued as fully paid and non-assessable shares of common
stock upon exercise of options in accordance with their terms.
We hereby consent to the use of our name in such Registration Statement
and to the filing of this opinion as Exhibit 5.1 thereto. In giving this
consent, we do not thereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or
the Rules and Regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
/s/ Friedlob Sanderson Raskin
Paulson & Tourtillott, LLC
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EXHIBIT 23.2
INDEPENDENT AUDITORS CONSENT
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Recycling Industries, Inc. our report dated September 30, 1997, relating
to the consolidated balance sheets of Recycling Industries, Inc. and
subsidiaries as of September 30, 1997, and the related consolidated statements
of operations, shareholders' equity, and cash flows for each of the years in the
two-year period ended September 30, 1997, which report appears in the September
30, 1997 annual report on Form 10-K/A of Recycling Industries, Inc.
BDO SEIDMAN, LLP
Denver, Colorado
April 16, 1998
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AJ. ROBBINS, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
AND CONSULTANTS
3033 EAST 1ST AVENUE, SUITE 201
DENVER, COLORADO 80206
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the use of
our reports dated:
REPORT DATE: FINANCIAL STATEMENTS OF:
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October 18, 1996 NR Holdings, Inc.
and to the reference made to our firm under the caption "Experts" included in
or made part of this S-8 Registration Statement.
AJ. ROBBINS, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
AND CONSULTANTS
DENVER, COLORADO
APRIL 10, 1998
