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As filed with the Securities and Exchange Commission on August 25, 1997
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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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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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
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
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000 $ 9.625 $ 4,812,500 $ 1,459
===================================================================================================
</TABLE>
(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.
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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.
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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.
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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.
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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.
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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 Guttenberg, State of New Jersey, on August 22, 1997.
KTI, INC.
By /s/ Nicholas Menonna, Jr.
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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:
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/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
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
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)
</TABLE>
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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
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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
