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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1999
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
SCHUFF STEEL COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 86-0318760
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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1841 W. BUCHANAN STREET, PHOENIX, ARIZONA 85009
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
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SCHUFF STEEL COMPANY
1999 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF PLAN)
SCOTT A. SCHUFF
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SCHUFF STEEL COMPANY
1841 W. BUCHANAN STREET
PHOENIX, ARIZONA 85009
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(602) 252-7787
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 200,000 $6.00 $1,200,000 $333.60
$0.001 par value
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</TABLE>
(1) In the event of a stock split, stock dividend or similar transaction
involving the Registrant's Common Stock, in order to prevent dilution, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act
of 1933.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities
Act of 1933 (the "Securities Act"), on the basis of the average of the
high and low prices of the Registrant's Common Stock on June 25, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, will be delivered to participants in accordance with Form S-8 and Rule 428
under the Securities Act of 1933, as amended (the "Securities Act"). These
documents and the documents incorporated by reference into this Registration
Statement pursuant 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Schuff Steel Company (the
"Registrant") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 and are hereby incorporated by reference into
this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999; and
(c) The description of the Registrant's capital stock contained in the
Registrant's Registration Statement on Form 8-A, dated June 17,
1997, filed pursuant to Section 12(g) of the Securities Exchange Act
of 1934.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, 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 such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
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 subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any 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. Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that a director of the
Company shall not be personally liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability for: (i) any breach of the director's duty of loyalty to the Company
or its stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) liability for
payments of dividends or stock purchases or redemptions in violation of Section
174 of the Delaware General
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Corporation Law; or (iv) any transaction from which the director derived an
improper personal benefit. In addition, the Company's Certificate of
Incorporation provides that the Company shall to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than
such law permitted the corporation to provide prior to such amendment),
indemnify and hold harmless any person who was or is a party, or is threatened
to be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that such person is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee") against
expenses, liabilities and losses (including attorneys' fees, judgments, fines,
excise taxes or penalties paid in connection with the Employee Retirement Income
Security Act of 1974, as amended, and amounts paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith; provided,
however, that except as otherwise provided with respect to proceedings to
enforce rights to indemnification, the Company shall indemnify any such
Indemnitee in connection with a proceeding (or part thereof) initiated by such
Indemnitee only if such proceeding or part thereof was authorized by the board
of directors of the Company.
The right to indemnification set forth above includes the right to be paid
by the Company the expenses (including attorneys' fees) incurred in defending
any such proceeding in advance of its final disposition; provided, however,
that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an Indemnitee in his capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Company of an undertaking, by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is not
further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this section or otherwise. The rights to indemnification
and to the advancement of expenses conferred herewith are contract rights and
continue as to an Indemnitee who has ceased to be a director, officer, employee
or agent and inures to the benefit of the Indemnitee's heirs, executors and
administrators.
The Delaware General Corporation Law provides that indemnification is
permissible only when the director, officer, employee, or agent acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the conduct was unlawful. The
Delaware General Corporation Law also precludes indemnification in respect of
any claim, issue, or matter as to which an officer, director, employee, or agent
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine that, despite such adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Registrant(1)
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant(1)
4.3 Bylaws of the Registrant(1)
4.4 Schuff Steel Company 1999 Employee Stock Purchase Plan(2)
5 Opinion of Snell & Wilmer L.L.P.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Snell & Wilmer L.L.P.
24 Power of Attorney (included in signature page)
</TABLE>
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(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-26711, effective June 26, 1997).
(2) Incorporated by reference to the Registrant's Notice and Proxy Statement
for its 1999 Annual Meeting of Stockholders.
ITEM 9. 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:
(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 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) and (a)(1)(ii) 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.
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(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.
(b) 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 (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.
(c) 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 such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than 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.
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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 Phoenix, State of Arizona, on July 2, 1999.
SCHUFF STEEL COMPANY, a Delaware
corporation
By: /s/ Scott A. Schuff
-------------------------------------
Scott A. Schuff
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Schuff Steel Company, hereby
severally constitute and appoint Scott A. Schuff and Kenneth F. Zylstra, and
each of them singly, our true and lawful attorneys, with full power to them and
each of them singly, to sign for us in our names and in the capacities indicated
below, all pre-effective and post-effective amendments to this registration
statement, and generally to do all things in our names and on our behalf in such
capacities to enable Schuff Steel Company to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission.
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 and Signature Title Date
- ------------------ ----- ----
<S> <C> <C>
/s/ David A. Schuff Chairman of the Board of July 2, 1999
- ----------------------- Directors
David A. Schuff
/s/ Scott A. Schuff President, Chief Executive July 2, 1999
- ----------------------- Officer and Director
Scott A. Schuff (Principal Executive Officer)
/s/ Kenneth F. Zylstra Vice President, Chief July 2, 1999
- ----------------------- Financial Officer and
Kenneth F. Zylstra Director
(Principal Financial and
Accounting Officer)
/s/ Edward M. Carson Director July 2, 1999
- -----------------------
Edward M. Carson
/s/ Dennis DeConcini Director July 2, 1999
- -----------------------
Dennis DeConcini
/s/ H. Wilson Sundt Director July 2, 1999
- -----------------------
H. Wilson Sundt
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page or Method of Filing
- -------------- ----------- ------------------------
<S> <C> <C>
4.1 Certificate of Incorporated by
Incorporation of the reference to the
Registrant Registrant's
Registration Statement
on Form S-1
(Registration No.
333-26711, effective
June 26, 1997).
4.2 Certificate of Amendment Incorporated by
of Certificate of reference to the
Incorporation of the Registrant's
Registrant Registration Statement
on Form S-1
(Registration No.
333-26711, effective
June 26, 1997).
4.3 Bylaws of the Registrant Incorporated by
reference to the
Registrant's
Registration Statement
on Form S-1
(Registration No.
333-26711, effective
June 26, 1997).
4.4 Schuff Steel Company Incorporated by
1999 Employee Stock reference to the
Purchase Plan Registrant's Notice
and Proxy Statement
for its 1999 Annual
Meeting of
Stockholders.
5 Opinion of Snell & Filed herewith
Wilmer L.L.P.
23.1 Consent of Ernst & Young Filed herewith
LLP, Independent Auditors
23.2 Consent of Snell & Included in Exhibit 5
Wilmer L.L.P.
24 Power of Attorney Included in Signature Page
</TABLE>
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EXHIBIT 5
July 2, 1999
Schuff Steel Company
1841 W. Buchanan Street
Phoenix, Arizona 85009
RE: SCHUFF STEEL COMPANY 1999 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
We have acted as counsel to Schuff Steel Company, a Delaware corporation
(the "Company"), in connection with its Registration Statement on Form S-8 (the
"Registration Statement") filed under the Securities Act of 1933, as amended,
relating to the registration of 200,000 shares of its Common Stock, $.001 par
value (the "Shares"), issuable pursuant to the Company's 1999 Employee Stock
Purchase Plan (the "Plan").
In that connection, we have examined such documents, corporate records,
and other instruments as we have deemed necessary or appropriate for purposes of
this opinion, including the Certificate of Incorporation, as amended, and the
Bylaws of the Company.
Based upon the foregoing, we are of the opinion that:
(1) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Delaware.
(2) The Shares, when issued and sold in accordance with the terms of the
Plan, will be validly issued, fully paid, and nonassessable.
The opinions expressed herein are limited solely to the General
Corporation Law of the State of Delaware. We express no opinion on the laws of
any other jurisdiction or the applicability or effect of any such laws or
principles.
The opinions expressed herein are based upon the law and the other matters
in effect on the date hereof, and we assume no obligation to review or
supplement this opinion should such law be changed by legislative action,
judicial decision, or otherwise, or should any facts or other matters upon which
we have relied be changed.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ SNELL & WILMER L.L.P.
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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 Schuff Steel Company 1999 Employee Stock Purchase Plan of
our report dated February 8, 1999, with respect to the consolidated financial
statements of Schuff Steel Company included in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Phoenix, Arizona
June 30, 1999
