<PAGE>
As filed with the Securities and Exchange Commission on May 4, 1994
REGISTRATION NO. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8* AND FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
NORTHWESTERN STEEL AND WIRE COMPANY
(Exact name of Registrant as specified in its charter)
ILLINOIS 36-1562920
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
121 Wallace Street, Sterling, Illinois
(Address, including zip code, and telephone number, including area code,
of Registrant's Principal Executive Offices)
--------------------
NORTHWESTERN STEEL AND WIRE COMPANY
MANAGEMENT STOCK OPTION PLAN
NORTHWESTERN STEEL AND WIRE COMPANY
1994 LONG-TERM INCENTIVE PLAN
NORTHWESTERN STEEL AND WIRE COMPANY
1994 DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
--------------------
Edward G. Maris
Senior Vice President and
Chief Financial Officer
121 Wallace Street
Sterling, Illinois 61081
(815) 625-2500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Aggregate Registration
Per Share(2) Offering Fee
Price(2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share.. 390,000 $4.00 $ 1,560,000 $ 537.93
Common Stock, par value $.01 per share.. 1,250,000 shares $8.875 $11,093,750 $3,825.43
Common Stock, par value $.01 per share.. 50,000 shares $8.875 $ 443,750 $ 153.02
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Indicates the aggregate number of shares of common stock, $.01 par value
("Common Stock") authorized and reserved for issuance and which may be sold
upon the exercise of options which previously have been granted and/or may
be granted to certain persons under the Northwestern Steel and Wire Company
Management Stock Option Plan (390,000), Northwestern Steel and Wire Company
1994 Long-Term Incentive Plan (1,250,000) and the Northwestern Steel and
Wire Company 1994 Director Stock Option Plan (50,000).
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provision of Rule 457(h) under the
Securities Act of 1933 (the "Act") as follows: (i) in the case of shares of
Common Stock which may be purchased upon the exercise of outstanding
options, the fee is calculated on the basis of the price at which the
options may be exercised; and (ii) in the case of (a) shares of Common Stock
for which options have not yet been granted and the option price of which is
therefore unknown, and (b) shares of Common Stock which have previously been
issued upon the exercise of options granted under the Plan and which may be
resold ("Resale Shares"), the fee is calculated on the basis of the average
of the high and low price per share of Common Stock on the National Market
System of the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") as of April 29, 1994 (within 5 business days prior to
filing this Registration Statement).
Approximate Date of Commencement of Proposed Sales Pursuant to the Plan: As
-----------------------------------------------------------------------
soon as practicable after the effective date of this Registration Statement.
* This Registration Statement shall constitute Post-Effective Amendment No. 1 to
Registration Statement No. 33-56412 on Form S-8.
This Registration Statement shall be deemed to cover securities resulting from
stock splits, stock dividends or similar transactions as provided by Rule 416
of the Act.
<PAGE>
EXPLANATORY NOTE
----------------
In accordance with the instructional Note to Part 1 of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part 1 of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of Common Stock of Northwestern Steel and Wire Company (the
"Company") pursuant to the benefit plans referred to herein (the "Plans"). The
prospectus filed as part of this Registration Statement has been prepared in
accordance with the requirements of Form S-3 and may be used for reofferings and
resales of unregistered shares of Common Stock previously acquired pursuant to
the Plans and for the reofferings and resales of registered shares of Common
Stock which may be issued in the future upon the exercise of options granted
under the Plans (hereinafter such Prospectus will be referred to as the
"Prospectus").
<PAGE>
PROSPECTUS
- ----------
(FORM S-3)
NORTHWESTERN STEEL AND WIRE COMPANY
390,000 Shares of Common Stock
Issuable upon exercise of options covered by the
Northwestern Steel and Wire Company
Management Stock Option Plan
----------
This Prospectus is being used in connection with the offering from time to
time by certain stockholders who may be deemed to be affiliates ("Selling
Stockholders") of Northwestern Steel and Wire Company (the "Company"), of shares
of the Common Stock of the Company which may be acquired upon the exercise of
stock options pursuant to the Northwestern Steel and Wire Company Management
Stock Option Plan (the "Plan"). The Company will not receive any of the
proceeds from the sale of the shares, but will receive funds upon the exercise
of the options covered by the Plan.
The Common Stock issuable upon exercise of the options covered by the Plan may
be sold from time to time by the Selling Stockholders or by pledgees, donees,
transferees or other successors in interest. Such sales may be made on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ"), in the over-the-counter market or otherwise at prices and at terms
then prevailing or at prices related to the then current market price, or in
negotiated transactions. The Common Stock may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer for its account pursuant to this Prospectus; and (c) ordinary brokerage
transactions and transactions in which the broker solicits purchasers. In
effecting sales, brokers or dealers engaged by the Selling Stockholders may
arrange for other brokers or dealers to participate. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act") in connection with such sales. In addition, any securities covered by
this Prospectus which qualify for sale pursuant to this Prospectus. All
discounts, commissions or fees incurred in connection with the sale of the
shares offered hereby will be paid by the Selling Stockholders or by the
purchasers of the shares, except that the expenses of preparing and filing this
Prospectus and the related Registration Statement with the Securities and
Exchange Commission, and of registering or qualifying the shares will be paid by
the Company.
The Common Stock of the Company is listed on The Nasdaq National Market
under the symbol NWSW. The closing price of the Company's Common Stock
as reported on The Nasdaq National Market on May 3, 1994 was $9.00.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
SEE RISK FACTORS FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED
BY PROSPECTIVE INVESTORS IN THE COMMON STOCK OFFERED HEREBY.
----------
The date of this Prospectus is
May 4, 1994
<PAGE>
No person is authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
made in this Prospectus, and any information or representation not contained
herein must not be relied upon as having been authorized by the Company or the
Selling Shareholders. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any security other than the Common Stock offered
by this Prospectus, nor does it constitute an offer to sell or a solicitation of
any offer to buy any shares of Common Stock offered hereby to any person in any
jurisdiction where it is unlawful to make such an offer or solicitation to such
person. Neither the delivery of this Prospectus nor any sale hereunder shall
under any circumstances create any implication that information contained herein
is correct as of any time subsequent to the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Reports and other information filed by the Company with the
Commission may be inspected and copies at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at: 75
Park Place, 14th Floor, New York, New York 10007 and Northwest Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material may be obtained upon written request addressed to the Commission at the
Public Reference Section, at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. In addition, the Common Stock is listed on NASDAQ and reports
and other information concerning the Company may also be inspected at the
offices of the National Association of Securities Dealers, Inc. at 1735 K
Street, N.W., Washington, D.C. 20006.
In addition, the Company will provide without charge to each person to whom
this Prospectus is delivered, upon either the written or oral request of such
person, the Annual Report to Stockholders for the Company's latest fiscal year
and a copy of any or all of the documents incorporated herein by reference other
than exhibits to such documents. See "INCORPORATION OF DOCUMENTS BY REFERENCE".
Such requests should be directed to Northwestern Steel and Wire Company, 121
Wallace Street, Sterling, Illinois 61081, Attention: Secretary.
2
<PAGE>
TABLE OF CONTENTS
THE COMPANY.................................................... 4
RISK FACTORS................................................... 4
SELLING STOCKHOLDERS........................................... 6
PLAN OF DISTRIBUTION........................................... 6
LEGAL MATTERS.................................................. 7
EXPERTS........................................................ 7
3
<PAGE>
THE COMPANY
GENERAL
The Company was founded in 1879. The Company is a major mini-mill producer of
structural steel products and rod and wire products. In contrast to integrated
mills, which produce steel from coke and iron ore through the use of blast
furnaces and basic oxygen mini-mills use electric are furnaces to melt steel
scrap and cast the resulting molten steel into long strands of various shapes in
a continuous casting process. These shapes are then typically reheated, rolled
and shaped into various finished products. The Company pioneered the use of
electric arc furnaces for steel making, installing its first electric arc
furnace in 1936. The Company's three 400-ton furnaces are among the world's
largest, with an annual melting capacity in excess of 2.4 million tons, and
provide the Company with considerable economies of scale in its steel scrap
melting operations. The Company's principal executive offices are located at 121
Wallace Street, Sterling, Illinois 61081, and its telephone number is (815) 625-
2500.
RISK FACTORS
In addition to the other information set forth in this Prospectus, investors
should consider carefully the information set forth below before making an
investment in the Common Stork offered hereby.
CYCLICAL INDUSTRY AND ECONOMIC CONDITIONS
Demand for most of the Company's products is cyclical in nature and sensitive
to general economic conditions. The structural steel products business is driven
by trends in commercial and residential construction, industrial investment in
new plants and facilities, and government spending on infrastructure projects
and public sector buildings. The rod and wire products business is driven by
housing starts, residential repair and remodelings and agricultural and consumer
spending. Future economic downturn may adversely affect the Company.
COMPETITION
The domestic steel industry is highly competitive. Excess production capacity
in the domestic structural steel industry has resulted in competitive pricing
and reduced profit margin. Steel prices can be highly volatile, and price is a
significant competitive factor. The high fixed costs of operating a steel mill
encourage mill operators to maintain high levels of output, regardless of
demand, which exacerbates the pressures on profit margins. The Company's
principal competitors are Bethlehem Steel Corporation ("Bethlehem"), Chaparral
Steel Co. ("Chaparral") and Nucor Corporation ("Nucor"), of which Chaparral and
Nucor have non-unionized workforces. Competitive pressures, particularly in the
market for wide flange beams, which are the principal product of the Houston
Facility, have been lessened by the recent exit of Inland Steel Industries, Inc.
and the U.S. Steel Southworks operation of USX Corporation from the structural
steel market. In addition, in January 1994, Bethlehem announced plans to exit
the large-sized Structural Steel Products market, which should provide increased
opportunity for the Company to gain additional market share, particularly at the
Houston Facility. However, there can be no assurance that remaining capacity
will not continue to exceed domestic demand. In addition, U.S. producers of
structural steel and rod and wire products have historically faced competition
from foreign steel producers. Although the Company has experienced little
foreign competition in recent years due to declines in domestic steel prices,
there can be no assurance that foreign competition will not increase in the
future, which could adversely affect the Company's operating results.
HIGH LEVERAGE, DEBT SERVICE OBLIGATIONS AND RESTRICTIVE COVENANTS
The Company is substantially leveraged in relation to its stockholders'
equity. The degree to which the Company is leveraged and the terms governing
the Company's indebtedness, including restrictive covenants and events of
default, could have important consequences to the Company's security holders,
including the following: (i) the Company's ability to obtain additional
financing in the future for working capital, capital expenditures, acquisitions,
general corporate purposes or other purposes may be impaired; (ii) a substantial
portion of the Company's cash flow from operations must be dedicated to service
its indebtedness; (iii) the Company's senior credit facility (the "Senior Credit
Facility") and the Company's outstanding 9.5% senior notes (the "Senior Notes")
contain restrictions on the Company's ability to pay dividends and will impose
other operating and financial restrictions; (iv) the Company may be more
leveraged than other providers of similar products and services, which
4
<PAGE>
may place the Company at a competitive disadvantage, and (v) the Company's
significant degree of leverage could make it more vulnerable to changes in
general economic conditions. The Company believes that it will be able to make
its principal and interest payments as and when required with funds derived from
its operations and available borrowings. However, unexpected declines in the
Company's future business, increases in interest rates or the inability to
borrow additional funds for its operations if and when required could impair the
Company's ability to meet its debt service obligations and, therefore, have a
materially adverse effect on the Company's business and future profits. No
assurance can be given that additional debt or equity funds will be available
when needed or, if available, on terms which are favorable to the Company.
Moreover, the Senior Notes and the Senior Credit Facility contain change in
control provisions which may have the effect of discouraging a potential
takeover of the Company.
FLUCTUATIONS IN RAW MATERIAL AND ENERGY COSTS
The cost of steel scrap, the principal raw material used in the Company's
operations, is subject to market conditions largely beyond the Company's
control. Generally, increases in steel prices lag behind increases in steel
scrap prices. Recently, steel scrap prices have increased substantially. The
Company also consumes large amounts of electricity. Increases in the prices for
electricity could adversely affect the Company's operating results.
ENVIRONMENTAL COMPLIANCE AND ASSOCIATED COSTS
The Company is subject to a broad range of federal, state and local
environmental requirements, including those governing discharges to the air and
water, the handling and disposal of solid and/or hazardous wastes and the
remediation of contamination associated with releases of hazardous substances.
The domestic steel industry, including the Company, has spent substantial
amounts to comply with these requirements, and the recently enacted amendments
to the Clean Air Act ("CAA") may require significant additional expenditures for
air pollution control or major changes in the steel making process, or both.
Although the Company believes that it is currently in substantial compliance
with the various environmental regulations applicable to its business, there can
be no assurance that environmental requirements win not change in the future or
that the Company will not incur significant costs in the future to comply with
such requirements.
UNIONIZED LABOR FORCE
The United Steelworkers of America (the "USWA") represents approximately 84%
of the Company's employees. In August 1992, the Company negotiated an extension
to its principal collective bargaining agreement at the Sterling Operations,
which provided for a 20% reduction in the hourly workforce at the Sterling
Operations through attrition over four years and the reduction in employee
health care costs through the implementation of "co-pay" arrangements and other
incentives to control spending. This agreement expires in August 1996. The
Company is also in the process of reducing its salaried workforce at the
Sterling Operations by 20% through attrition. A new USWA contract which expires
in August 1996 was ratified by employees at the Houston Facility in June 1993.
In addition, the Company's collective bargaining agreements with one local union
represented by the United Plant Guard Workers of America and one local union
affiliated with the International Brotherhood of Teamsters have recently been
renegotiated to expire in August 1996 and March 1997, respectively. There can
be no assurance as to the terms of future contracts. The Company experienced a
protracted work stoppage in 1983. There can be no assurance that work stoppages
will not occur in the future in connection with labor negotiations or otherwise.
5
<PAGE>
SELLING STOCKHOLDERS
The names of the Selling Stockholders who may be affiliates of the Company and
the positions, offices and other material relationships which he has had with
the Company since January 1, 1991 are as follows:
<TABLE>
<CAPTION>
POSITION HELD WITH THE COMPANY
SELLING STOCKHOLDER SINCE JANUARY 1, 1991
------------------- ------------------------------
<S> <C>
Robert N. Gurnitz Chairman of the Board,
President
and Chief Executive Officer
(January 1991 - Present)
Edward G. Maris Senior Vice President,
Chief Financial Officer,
Secretary and Treasurer
(January 1991 - Present)
</TABLE>
The following table sets forth the name of each Selling Stockholder listed
above the number of shares of Common Stock of each such Selling Stockholder (1)
owned of record as of May 1, 1994; (2) which are to be registered hereunder;
and (3) the amount of Common Stock to be owned by each such Selling Stockholder
assuming the exercise of all options granted under the Plan and the sale of all
shares acquired upon exercise of such options. There can be no assurance that
any of the Selling Stockholders will offer for sale or sell any or all of the
Common Stock offered by them pursuant to this Prospectus.
<TABLE>
<CAPTION>
NUMBER OF SHARES OWNED NUMBER OF SHARES TO AMOUNT OF SHARES TO BE
AS BE OWNED AFTER SALES OF SHARES
NAME AND RELATIONSHIP OF MAY 1, 1994 REGISTERED REGISTERED HEREUNDER
- -------------------- ---------------------- ------------------- ---------------------------
<S> <C> <C> <C>
Robert N. Gurnitz 109,091 375,000 109,091
Edward G. Maris 78,505 15,000 78,505
</TABLE>
PLAN OF DISTRIBUTION
The Common Stock may be sold from time to time by the Selling Stockholders or
by pledgees, donees, transferees or other successors in interest. Such sales
may be made on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), on the over-the-counter market or otherwise at
prices and at terms then prevailing or at prices related to the then current
market price, or in negotiated transactions. The Common Stock may be sold by
one or more of the following: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer for its account pursuant to this Prospectus; and (c)
ordinary brokerage transactions and transactions in which the broker solicits
purchases. In effecting sales, brokers or dealers engaged by the Selling
Stockholders may arrange for other brokers or dealers to participate. Brokers
or dealers will receive commissions or discounts from Selling Stockholders in
amounts to be negotiated immediately prior to the sale. Such brokers or dealers
and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Act") in connection with such sales. In addition, any securities covered by
this Prospectus which qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this Prospectus. The Company will not receive
any of the proceeds from the sale of these shares, although it has paid the
expenses of preparing this Prospectus and the related Registration Statement.
The Selling Stockholders have been advised that they are subject to the
applicable provisions of the Securities Exchange Act of 1934, including without
limitation, Rules 10b-5, 10b-6 and 10b-7 thereunder.
6
<PAGE>
LEGAL MATTERS
Legal matters with respect to Common Stock being offered hereby, have been
passed upon for the Company by Kirkland & Ellis, New York, New York.
EXPERTS
The consolidated financial statements of the Company as of July 31, 1993 and
1992 and for each of the three years in the period ended July 31, 1993
incorporated by reference in this Prospectus and the Registration Statement of
which it is a part have been so included in reliance on the report of Coopers &
Lybrand, independent accountants, given on the authority of said firm as experts
in auditing and accounting.
7
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 (FORM S-8). INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
The following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by Northwestern Steel and Wire Company (the
"Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
July 31, 1993, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended October 31, 1993, filed pursuant to Section 13(a) or 15(d) of the Exchange
Act.
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended January 31, 1994, filed pursuant to Sections 13(a) and 15(d) of the
Exchange Act.
(d) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since July 31, 1993.
(e) The description of the Company's common stock, par value $.01 per
share (the "Common Stock"), contained in the Company's registration statement on
Form 8-A filed under the Exchange Act (File No. 1-4288), including any
subsequent amendment or any report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange 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 the Registration Statement and to be part hereof
from the date of filing of such documents (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
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, as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4 (FORM S-8). DESCRIPTION OF SECURITIES
-------------------------
Not applicable.
ITEM 5 (FORM S-8). INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
ITEM 6 (FORM S-8) AND ITEM 15 (FORM S-3). INDEMNIFICATION OF DIRECTORS AND
--------------------------------
OFFICERS
- --------
The Amended and Restated By-Laws of the Company and certain Indemnification
Agreements between the Company and certain of its officers and directors provide
for indemnification of directors and officers to the full extent provided by
Illinois law, and state that the indemnification provided therein shall not be
deemed exclusive. The Company has in the past, and may in the future, purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Company, or who is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not the
Company would have the power to indemnify that person against such liability
under the provisions of the Amended and Restated Bylaws of the Company.
II-1
<PAGE>
Section 8.75 of the Illinois Business Corporation Act of 1983, as amended,
provides as follows:
"(a) A corporation may indemnify any person who was or is a party, or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation, or who 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner he or she reasonably believed to
be in, or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner in which he or she
reasonably believed to be in or not opposed to the best interests of the
corporation or, with respect to any criminal action or proceeding, that the
person had reasonable cause to believe that his or her conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party, or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director, officer, employee, or
agent 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, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement or such action or suit, if such person acted in good faith
and in a manner he or she reasonably believed to be in, or not opposed to the
best interests of the corporation, provided that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the corporation, unless, and only to the extent that the
court in which such action or suit was brought shall determine upon application
that, despite the 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 as the court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful, on the merits or otherwise, in the defense of
any action, suit or proceeding referred to in subsection (a) and (b), or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered by a
court) shall be made by the corporation only as authorized in the specific case,
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in subsection (a) or (b). Such determination
shall be made (1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested directors so directs, by independent legal counsel in a written
opinion, or (3) by the shareholders.
(e) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding, as authorized by the board of directors in the
specific case, upon receipt of any undertaking by or on behalf of the director,
officer, employee or agent to repay such amount, unless it shall ultimately be
determined that he or she is entitled to be indemnified by the corporation as
authorized in this Section.
(f) The indemnification provided by this Section shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director, officer, employee or agent, and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
II-2
<PAGE>
(g) A corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or who 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, against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of his or her
status as such, whether or not the corporation would have the power to indemnify
such person against such liability under the provisions of this Section.
(h) If a corporation has paid indemnity or has advanced expenses to a
director, officer employee or agent, the corporation shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
(i) For purposes of this Section, references to "the Corporation" shall
include, in addition to the surviving corporation, any merging corporation
(including any corporation having merged with a merging corporation) absorbed in
a merger which, if its separate existence had continued, would have had the
power and authority to indemnify its directors, officers, and employees or
agents, so that any person who was a director, officer, employee or agent of
such merging corporation, or was serving at the request of such merging
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Section with respect to the surviving
corporation as such person would have with respect to such merging corporation
if its separate existence had continued.
(j) For purposes of this Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan, and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries. A person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the corporation" as referred to in
this Section."
ITEM 7 (FORM S-8). EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable
ITEM 8 (FORM S-8) AND ITEM 16 (FORM S-3). EXHIBITS
--------
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
- ------ -----------------------
<S> <C>
4(a) Second Amended and Restated Articles of Incorporation of the
Company dated as of August 12, 1992. (Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the fiscal year ended
July 31, 1992, File No. 1-4288, incorporated herein by reference).
4(b) First Amendment to the Second Amended and Restated Articles of
Incorporation (Exhibit 3.2 to the Company's Form S-1
Registration Statement filed with the Commission on
April 8, 1993, File No. 33-60764, incorporated herein by
reference).
4(c) Amended and Restated By-Laws of the Company, (Exhibit 3.2 to
the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1992, File No. 1-4288, incorporated herein by
reference).
4(d) Northwestern Steel and Wire Company 1994
Long-Term Incentive Plan.*
4(e) Northwestern Steel and Wire Company 1994 Director
Stock Option Plan.*
5 Opinion of Kirkland & Ellis.*
23(a) Consent of Kirkland & Ellis (included in its
opinion filed as Exhibit 5).
23(b) Consent of Coopers & Lybrand.*
</TABLE>
- -----------------
* Filed herewith.
II-3
<PAGE>
ITEM 9 (FORM S-8) AND ITEM 17 (FORM S-3). 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(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;
(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 (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under 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) 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) 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 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 the initial bona fide offering thereof.
(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.
II-4
<PAGE>
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 Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Sterling, State of Illinois, on May 4, 1994.
NORTHWESTERN STEEL AND WIRE COMPANY
By: /s/ Robert N. Gurnitz
---------------------------------------
Robert N. Gurnitz
Chairman, President and Chief Executive
Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints each of Robert N. Gurnitz and Edward G.
Maris his true and lawful attorney-in-fact and agent, each with full power of
substitution and revocation, for him and in his name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, the Securities
and Exchange Commission, granting unto each such attorney-in-fact and agent,
full power and authority to do and perform each such and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the foregoing Powers of Attorney have been signed on
May 4, 1994, by the following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
/s/ Robert N. Gurnitz Chairman, President, Chief
- -------------------------- Executive Officer and Director
Robert N. Gurnitz (Principal Executive Officer)
Senior Vice President,
Chief Financial Officer,
/s/ Edward G. Maris Secretary and Treasurer
- -------------------------- (Principal Financial and
Edward G. Maris and Accounting Officer)
/s/ William F. Andrews
- --------------------------
William F. Andrews Director
/s/ Kim G. Davis
- --------------------------
Kim G. Davis Director
/s/ Darius W. Gaskins, Jr.
- --------------------------
Darius W. Gaskins, Jr. Director
/s/ James A. Kohlberg
- --------------------------
James A. Kohlberg Director
/s/ Jerome Kohlberg Jr.
- --------------------------
Jerome Kohlberg Jr. Director
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C>
/s/ Christopher Lacovara
- ------------------------
Christopher Lacovara Director
/s/ George W. Peck IV
- ------------------------
George W. Peck IV Director
/s/ Richard F. Williams
- ------------------------
Richard F. Williams Director
</TABLE>
II-6
<PAGE>
EXHIBIT 4.D
NORTHWESTERN STEEL AND WIRE COMPANY
1994 LONG-TERM INCENTIVE PLAN
1. PURPOSE. The purpose of the 1994 Long-Term Incentive Plan (the "Plan") is
to advance the interests of Northwestern Steel and Wire Company, an Illinois
corporation (the "Company"), and its shareholders by providing incentives to
certain key employees of the Company and to certain other key individuals who
perform services for the Company, including those who contribute significantly
to the strategic and long-term performance objectives and growth of the
Company.
2. ADMINISTRATION. The Plan shall be administered solely by the Board of
Directors (the "Board") of the Company or, if the Board shall so designate, by
a committee of the Board (the "Committee") that shall be comprised of not fewer
than three directors. References to the Committee hereunder shall include the
Board where appropriate. The membership of the Committee shall be constituted
so as to comply at all times with the applicable requirements of Rule 16b-3 or
any successor rule ("Rule 16b-3") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Section 162(m) of the Internal Revenue Code of
1986, as amended. No member of the Committee shall have within one year prior
to such member's appointment received awards under the Plan ("Awards") or under
any other plan, program or arrangement of the Company or any of its affiliates
if such receipt would cause such member to cease to be a "disinterested person"
under Rule 16b-3.
The Committee has all the powers vested in it by the terms of the Plan set
forth herein, such powers to include exclusive authority (except as may be
delegated as permitted herein) to select the key employees and other key
individuals to be granted Awards, to determine the type, size and terms of the
Award to be made to each individual selected, to modify the terms of any Award
that has been granted, to determine the time when Awards will be granted, to
establish performance objectives, to make any adjustments necessary or
desirable as a result of the granting of Awards to eligible individuals located
outside the United States and to prescribe the form of the instruments
embodying Awards. The Committee is authorized to interpret the Plan and the
Awards, to establish, amend and rescind any rules and regulations relating to
the Plan, and to make any other determinations which it deems necessary or
desirable for the administration of the Plan. The Committee (or its delegate as
permitted herein) may correct any defect or supply any omission or reconcile
any inconsistency in the Plan or in any Award in the manner and to the extent
the Committee deems necessary or desirable to carry it into effect. Any
decision of the Committee (or its delegate as permitted herein) in the
interpretation and administration of the Plan, as described herein, shall lie
within its sole and absolute discretion and shall be final, conclusive and
binding on all parties concerned. The Committee may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their members or any officer of the Company to execute and deliver
documents or to take any other ministerial action on behalf of the Committee
with respect to Awards made or to be made to Plan participants. No member of
the Committee and no officer of the Company shall be liable for anything done
or omitted to be done by him, by any other member of the Committee or by any
officer of the Company in connection with the performance of duties under the
Plan, except for such person's own willful misconduct or as expressly provided
by statute. Determinations to be made by the Committee under the Plan may be
made by its delegates.
3. PARTICIPATION. Consistent with the purposes of the Plan, the Committee
shall have exclusive power (except as may be delegated as permitted herein) to
select the key employees and other key individuals performing services for the
Company who may participate in the Plan and be granted Awards. Eligible
individuals may be selected individually or by groups or categories, as
determined by the Committee in its discretion. No non-employee director of the
Company shall be eligible to receive an Award under the Plan.
<PAGE>
4. AWARDS UNDER THE PLAN.
(a) Types of Awards. Awards under the Plan may include, but need not be
limited to, one or more of the following types, either alone or in any
combination thereof: (i) "Stock Options," (ii) "Stock Appreciation Rights," and
(iii) "Restricted Stock." Stock Options, which include "Nonqualified Stock
Options" and "Incentive Stock Options" or combinations thereof, are rights to
purchase common shares of the Company having a par value of $.01 per share and
stock of any other class into which such shares may thereafter be changed (the
"Common Shares"). Nonqualified Stock Options and Incentive Stock Options are
subject to the terms, conditions and restrictions specified in Paragraph 5.
Stock Appreciation Rights are rights to receive, cash, Common Shares or other
Company securities based on the increase in the value of the number of Common
Shares specified in the Stock Appreciation Right. Stock Appreciation Rights are
subject to the terms, conditions and restrictions specified in Paragraph 6.
Shares of Restricted Stock are Common Shares which are issued subject to
certain restrictions pursuant to Paragraph 7.
(b) Maximum Number of Shares that May be Issued. There may be issued under
the Plan (as Restricted Stock, pursuant to the exercise of Stock Options or
Stock Appreciation Rights) an aggregate of not more than 1,250,000 Common
Shares, subject to adjustment as provided in Paragraph 11. Common Shares issued
pursuant to the Plan may be either authorized but unissued shares, treasury
shares, reacquired shares, or any combination thereof. If any Common Shares
issued as Restricted Stock or otherwise subject to repurchase or forfeiture
rights are reacquired by the Company pursuant to such rights, or if any Award
is cancelled, terminates or expires unexercised, any Common Shares that would
otherwise have been issuable pursuant thereto will be available for issuance
under new Awards.
(c) Rights with respect to Common Shares and Other Securities.
(i) Unless otherwise determined by the Committee in its discretion, a
participant to whom an Award of Restricted Stock has been made (and any
person succeeding to such a participant's rights pursuant to the Plan)
shall have, after issuance of a certificate for the number of Common Shares
awarded and prior to the expiration of the Restricted Period (as defined in
Paragraph 7) or the earlier repurchase of such Common Shares as herein
provided, ownership of such Common Shares, including the right to vote the
same and to receive dividends or other distributions made or paid with
respect to such Common Shares (provided that such Common Shares, and any
new, additional or different shares, or other forms of consideration which
the participant may be entitled to receive with respect to such Common
Shares as a result of a stock split, stock dividend or any other change in
the corporation or capital structure of the Company, shall be subject to
the restrictions hereinafter described as determined by the Committee in
its discretion), subject, however, to the options, restrictions and
limitations imposed thereon pursuant to the Plan. Notwithstanding the
foregoing, a participant with whom an Award agreement is made to issue
Common Shares in the future, shall have no rights as a shareholder with
respect to Common Shares related to such agreement until issuance of a
certificate to such participant.
(ii) A participant to whom a grant of Stock Options or Stock Appreciation
Rights (and any person succeeding to such a participant's rights pursuant
to the Plan) shall have no rights as a shareholder with respect to any
Common Shares or as a holder with respect to other securities, if any,
issuable pursuant to any such Award until the date of the issuance of a
stock certificate to such participant for such Common Shares or other
instrument of ownership, if any. Except as provided in Paragraph 11, no
adjustment shall be made for dividends, distributions or other rights
(whether ordinary or extraordinary, and whether in cash, securities, other
property or other forms of consideration, or any combination thereof) for
which the record date is prior to the date such stock certificate or other
instrument of ownership, if any, is issued.
5. STOCK OPTIONS. The Committee may grant Stock Options either alone, or in
conjunction with Stock Appreciation Rights or Restricted Stock, either at the
time of grant or by amendment thereafter; provided that an Incentive Stock
Option may be granted only to an eligible employee of the Company or any parent
or subsidiary corporation. Each Stock Option (referred to herein as an
"Option") granted or sold under the
D-2
<PAGE>
Plan shall be evidenced by an instrument in such form as the Committee shall
prescribe from time to time in accordance with the Plan and shall comply with
the following terms and conditions, and with such other terms and conditions,
including, but not limited to, restrictions upon the Option or the Common
Shares issuable upon exercise thereof, as the Committee, in its discretion,
shall establish:
(a) The option price shall not be less than the fair market value of the
Common Shares subject to such Option at the time the Option is granted, as
determined by the Committee. If granted to an employee who owns stock
representing more than ten percent of the voting power of all classes of
stock of the Company or any parent or subsidiary (a "Ten Percent
Employee"), such option price shall not be less than 110% of such fair
market value at the time the Option is granted; but in no event will such
option price be less than the par value of such Common Shares.
(b) The Committee shall determine the number of Common Shares to be
subject to each Option. The number of Common Shares subject to an
outstanding Option may be reduced on a share-for-share or other appropriate
basis, as determined by the Committee, to the extent that Common Shares
under such Option are used to calculate the cash, Common Shares, or other
forms of payment or any combination thereof received pursuant to exercise
of a Stock Appreciation Right attached to such Option, or to the extent
that any other Award granted in conjunction with such Option is paid.
(c) The Option may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution, and shall be exercisable during the grantee's
lifetime only by him. Unless the Committee determines otherwise, the Option
shall not be exercisable for at least six months after the date of grant,
unless the grantee ceases employment or performance of services before the
expiration of such six-month period by reason of such person's disability
as defined in Paragraph 7 or such person's death.
(d) The Option shall not be exercisable:
(i) in the case of any Incentive Stock Option granted to a Ten
Percent Employee, after the expiration of five years from the date it
is granted, and, in the case of any other Option, after the expiration
of ten years from the date it is granted. Any Option may be exercised
during such period only at such time or times and in such installments
as the Committee may establish;
(ii) unless payment in full is made for the shares being acquired
thereunder at the time of exercise; such payment shall be made in such
form (including, but not limited to, cash, Common Shares, the surrender
of another outstanding Award under the Plan or any combination thereof)
as the Committee may determine in its discretion; and
(iii) unless the person exercising the Option has been, at all times
during the period beginning with the date of the grant of the Option
and ending on the date of such exercise, employed by or otherwise
performing services for the Company, or a corporation, or a parent or
subsidiary of a corporation, substituting or assuming the Option in a
transaction to which Section 424(a) of the Internal Revenue Code of
1986, as amended, or any successor statutory provision thereto (the
"Code"), is applicable, except that
(A) if such person shall cease such employment or performance of
services by reason of such person's death, disability as defined in
Paragraph 9 or early, normal or deferred retirement under an
approved retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee, in its discretion,
for this purpose) while holding an Option which has not expired and
has not been fully exercised, such person may exercise the Option
with respect to any shares as to which such person could have
exercised the Option on the date such person ceased such employment
or performance of services, or with respect to such greater number
of shares as determined by the Committee, at any time prior to
expiration of the Option; or
(B) if such person shall voluntarily cease such employment or
performance of services (other than as set forth in Subparagraph
5(d) (iii)(A)) while holding an Option which has not expired and has
not been fully exercised, such person may exercise the Option with
respect to
D-3
<PAGE>
any shares as to which such person could have exercised the Option
on the date such person so voluntarily ceased such employment or
performance of services, or with respect to such greater number of
shares as determined by the Committee, at any time within 90 days
(or such period determined by the Committee) after the date such
person ceased such employment or performance of services (but in no
event after the Option has expired); or
(C) if such person is involuntarily terminated without cause (as
defined by the Committee) while holding an Option which has not
expired and has not been fully exercised, such person may exercise
the Option with respect to any shares as to which such person could
have exercised the Option on the date such person involuntarily
ceased such employment or performance of services, or with respect
to such greater number of shares as determined by the Committee, at
any time within 180 days (or such period determined by the
Committee) after the date such person has been involuntarily
terminated without cause (but in no event after the Option has
expired); or
(D) if such person shall be involuntarily terminated with cause
(as defined by the Committee) while holding an Option which has not
expired and has not been fully exercised, the Option, including with
respect to any shares as to which such person could have exercised
the Option on the date such person was terminated for cause, shall
automatically terminate and may not be exercised.
(e) In the case of an Incentive Stock Option, the amount of the aggregate
fair market value of Common Shares (determined at the time of grant of the
Option pursuant to subparagraph 5(a) of the Plan) with respect to which
incentive stock options are exercisable for the first time by a participant
during any calendar year (under all such plans of the Company and its
subsidiary corporations) shall not exceed $100,000.
(f) It is the intent of the Company that Nonqualified Stock Options
granted under the Plan not be classified as Incentive Stock Options, that
the Incentive Stock Options granted under the Plan be consistent with and
contain or be deemed to contain all provisions required under Section 422
and the other appropriate provisions of the Code and any implementing
regulations (and any successor provisions thereof), and that any
ambiguities in construction shall be interpreted in order to effectuate
such intent.
6. STOCK APPRECIATION RIGHTS. The Committee may grant Stock Appreciation
Rights, either alone or in conjunction with Stock Options or Restricted Stock,
either at the time of grant or by amendment thereafter. Each Award of Stock
Appreciation Rights granted under the Plan shall be evidenced by an instrument
in such form as the Committee shall prescribe from time to time in accordance
with the Plan and shall comply with the following terms and conditions, and
with such other terms and conditions, including, but not limited to,
restrictions upon the Award of Stock Appreciation Rights or the Common Shares
issuable upon exercise thereof, as the Committee, in its discretion, shall
establish:
(a) The Committee shall determine the number of Common Shares to be
subject to each Award of Stock Appreciation Rights. The number of Common
Shares subject to an outstanding Award of Stock Appreciation Rights may be
reduced on a share-for-share or other appropriate basis, as determined by
the Committee, to the extent that Common Shares under such Award of Stock
Appreciation Rights are used to calculate the cash, Common Shares, or other
forms of payment or any combination thereof received pursuant to exercise
of an Option attached to such Award of Stock Appreciation Rights or to the
extent that any other Award granted in conjunction with such Award of Stock
Appreciation Rights is paid.
(b) The Award of Stock Appreciation Rights may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, except by will
or the laws of descent and distribution, and shall be exercisable during
the grantee's lifetime only by him. Unless the Committee determines
otherwise, the Award of Stock Appreciation Rights shall not be exercisable
for at least six months after the date of
D-4
<PAGE>
grant, unless the grantee ceases employment or performance of services
before the expiration of such six-month period by reason of such person's
disability as defined in Paragraph 9 or such person's death.
(c) The Award of Stock Appreciation Rights shall not be exercisable:
(i) in the case of any Award of Stock Appreciation Rights which is
attached to an Incentive Stock Option granted to a Ten Percent
Employee, after the expiration of five years from the date it is
granted and, in the case of any other Award of Stock Appreciation
Rights, after the expiration of ten years from the date it is granted.
Any Award of Stock Appreciation Rights may be exercised during such
period only at such time or times and in such installments as the
Committee may establish;
(ii) unless the Option or other Award to which the Award of Stock
Appreciation Rights is attached is at the time exercisable; and
(iii) unless the person exercising the Award of Stock Appreciation
Rights has been, at all times during the period beginning with the date
of the grant thereof and ending on the date of such exercise, employed
by or otherwise performing services for the Company, except that
(A) if such person shall cease such employment or performance of
services by reason of such person's death, disability as defined in
Paragraph 9 or early, normal or deferred retirement under an
approved retirement program of the Company (or such other plan or
arrangement as may be approved by the Committee, in its discretion,
for this purpose) while holding an Award of Stock Appreciation
Rights which has not expired and has not been fully exercised, such
person may exercise the Award of Stock Appreciation Rights with
respect to any shares as to which such person could have exercised
the Award of Stock Appreciation Rights on the date such person
ceased such employment or performance of services, or with respect
to such greater number of shares as determined by the Committee, at
any time prior to the expiration of the Award of Stock Appreciation
Rights; or
(B) if such person shall voluntarily cease such employment or
performance of services (other than as set forth in subparagraph
6(c)(iii)(A)) while holding an Award of Stock Appreciation Rights
which has not expired and has not been fully exercised, such person
may exercise the Award of Stock Appreciation Rights with respect to
any shares as to which such person could have exercised the Award of
Stock Appreciation Rights on the date such person so voluntarily
ceased such employment or performance of services, or with respect
to such greater number of shares as determined by the Committee, at
any time within 90 days (or such period determined by the Committee)
after the date such person ceased such employment or performance of
services (but in no event after the Award of Stock Appreciation
Rights Option has expired); or
(C) if such person shall be involuntarily terminated without cause
(as defined by the Committee) while holding an Award of Stock
Appreciation Rights which has not expired and has not been fully
exercised, such person may exercise the Award of Stock Appreciation
Rights with respect to any shares as to which such person could have
exercised the Award of Stock Appreciation Rights on the date such
person involuntarily ceased such employment or performance of
services, or with respect to such greater number of shares as
determined by the Committee, at any time within 180 days (or such
period determined by the Committee) after the date such person has
been involuntarily terminated without cause (but in no event after
the Award of Stock Appreciation Rights Option has expired); or
(D) if such person shall involuntarily cease such employment or
performance of services with cause (as defined by the Committee)
while holding an Award of Stock Appreciation Rights which has not
expired and has not been fully exercised, the Award of Stock
Appreciation Rights, including with respect to any shares as to
which such person could have exercised the Award of Stock
Appreciation Rights on the date such person was terminated for
cause, shall automatically terminate and may not be exercised.
D-5
<PAGE>
(d) An Award of Stock Appreciation Rights shall entitle the holder (or
any person entitled to act under the provisions of subparagraph
6(c)(iii)(B) hereof) to exercise such Award or to surrender unexercised the
Option (or other Award) to which the Stock Appreciation Right is attached
(or any portion of such Option or other Award) to the Company and to
receive from the Company in exchange thereof, without payment to the
Company, that number of Common Shares having an aggregate value equal to
(or, in the discretion of the Committee, less than) the excess of the fair
market value of one share, at the time of such exercise, over the exercise
price (or Option Price, as the case may be), times the number of shares
subject to the Award or the Option (or other Award), or portion thereof,
which is so exercised or surrendered, as the case may be. The Committee
shall be entitled in its discretion to elect to settle the obligation
arising out of the exercise of a Stock Appreciation Right by the payment of
cash, or other forms of payment or any combination thereof, as determined
by the Committee, equal to the aggregate value of the Common Shares it
would otherwise be obligated to deliver. Any such election by the Committee
shall be made as soon as practicable after the receipt by the Committee of
written notice of the exercise of the Stock Appreciation Right. The value
of a Common Share, or other forms of payment determined by the Committee
for this purpose shall be the fair market value thereof on the last
business day next preceding the date of the election to exercise the Stock
Appreciation Right, unless the Committee, in its discretion, determines
otherwise.
(e) A Stock Appreciation Right may provide that it shall be deemed to
have been exercised at the close of business on the business day preceding
the expiration date of the Stock Appreciation Right or of the related
Option (or other Award), or such other date as specified by the Committee,
if at such time such Stock Appreciation Right has a positive value. Such
deemed exercise shall be settled or paid in the same manner as a regular
exercise thereof as provided in subparagraph 6(d) hereof.
(f) No fractional shares may be delivered under this Paragraph 6, but in
lieu thereof a cash or other adjustment shall be made as determined by the
Committee in its discretion.
7. RESTRICTED STOCK. Each Award of Restricted Stock under the Plan shall be
evidenced by an instrument in such form as the Committee shall prescribe from
time to time in accordance with the Plan and shall comply with the following
terms and conditions, and with such other terms and conditions as the
Committee, in its discretion, shall establish:
(a) The Committee shall determine the number of Common Shares to be
issued to a participant pursuant to the Award, and the extent, if any, to
which they shall be issued in exchange for cash, other consideration, or
both.
(b) Restricted Stock awarded to a participant in accordance with the
Award shall be subject to the following restrictions commencing on and
ending on the date the Committee shall determine commencing on the date on
which the Award is granted and ending on the date (the "Restricted
Period"): (i) a participant to whom an award of Restricted Stock is made
shall be issued, but shall not be entitled to the delivery of, a stock
certificate, (ii) the Restricted Stock shall not be transferable prior to
the end of the Restricted Period, (iii) if the participant's continuous
employment or performance of services for the Company shall terminate for
any reason prior to the end of the Restricted Period, except as otherwise
provided in subparagraph 7(c), the Restricted Stock shall be forfeited and
the stock certificate, if delivered to the participant, shall be returned
to the Company and all rights of the holder of such Restricted Stock to
such shares shall terminate without further obligation on the part of the
Company and (iv) such other restrictions as determined by the Committee in
its discretion.
(c) If a participant who has been continuously employed by or has been
continuously performing services for the Company since the date on which a
Restricted Stock Award was granted to such participant shall, die or
otherwise terminate such employment or performance of services by reason of
disability as defined in Paragraph 9 or by reason of early, normal or
deferred retirement under an approved retirement program of the Company (or
such other plan or arrangement as may be approved by the Committee in its
discretion, for this purpose) and any of such events shall occur after the
date on which the Award was granted to such participant and prior to the
end of the Restricted Period of such
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Award, the Committee may determine to cancel any and all restrictions on
any or all of the Common Shares subject to such Award.
8. AMENDMENT OR SUBSTITUTION OF AWARDS UNDER THE PLAN. The terms of any
outstanding Award under the Plan may be amended from time to time by the
Committee in its discretion in any manner that it deems appropriate (including,
but not limited to, acceleration of the date of exercise of any Award and/or
payments thereunder); provided that no such amendment shall adversely affect in
a material manner any right of a participant under the Award without such
person's written consent, unless the Committee determines in its discretion
that there have occurred or are about to occur significant changes in the
participant's position, duties or responsibilities, or significant changes in
economic, legislative, regulatory, tax, accounting or cost/benefit conditions
which are determined by the Committee in its discretion to have or to be
expected to have a substantial effect on the performance of the Company, or any
subsidiary, affiliate, division or department thereof, on the Plan or on any
Award under the Plan. The Committee may, in its discretion, permit holders of
Awards under the Plan to surrender outstanding Awards in order to exercise or
realize the rights under other Awards, or in exchange for the grant of new
Awards, or require holders of Awards to surrender outstanding Awards as a
condition precedent to the grant of new Awards under the Plan.
9. DISABILITY. For the purposes of this Plan, a participant shall be deemed
to have terminated such person's employment with or performance of services for
the Company and its Affiliates by reason of disability, if the Committee shall
determine that the physical or mental condition of the participant by reason of
which such employment or performance of services terminated was such at that
time as would entitle such participant to payment of monthly disability
benefits under any Company disability plan. If the participant is not eligible
for benefits under any disability plan of the Company, such person shall be
deemed to have terminated such employment or performance of services by reason
of disability if the Committee shall determine that such person's physical or
mental condition would entitle such participant to benefits under any Company
disability plan if such person were eligible therefor.
10. TERMINATION OF A PARTICIPANT. For all purposes under the Plan, the
Committee shall determine whether a participant has terminated employment with,
or the performance of services for, the Company.
11. DILUTION AND OTHER ADJUSTMENTS. In the event of any change in the
outstanding Common Shares by reason of any stock split, dividend, split-up,
split-off, spin-off, recapitalization, merger, consolidation, rights offering,
reorganization, combination or exchange of shares, a sale by the Company of
substantially all of its assets, any distribution to shareholders other than a
normal cash dividend, or other extraordinary or unusual event, if the Committee
shall determine, in its discretion, that such change equitably requires an
adjustment in the terms of any Award or the number of Common Shares available
for Awards, such adjustment may be made by the Committee and shall be final,
conclusive and binding for all purposes of the Plan.
In the event of the proposed dissolution or liquidation of the Company, all
outstanding Awards shall terminate immediately prior to the consummation of
such proposed action, unless otherwise provided by the Committee. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, all restrictions on
any outstanding Awards shall lapse and participants shall be entitled to the
full benefit of all such Awards immediately prior to the closing date of such
sale or merger, unless otherwise provided by the Committee.
12. DESIGNATION OF BENEFICIARY BY PARTICIPANT. A participant may name on a
written form to be provided by and filed with the Committee, and in a manner
determined by the Committee in its discretion, a beneficiary to receive any
payment to which such participant may be entitled in respect of any Award under
the Plan in the event of such person's death. The Committee reserves the right
to review and approve beneficiary designations. A participant may change such
person's beneficiary from time to time in the same manner, unless such
participant has made an irrevocable designation in which case such beneficiary
may be changed only with the written consent of such beneficiary. Any
designation of beneficiary under the Plan (to
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the extent it is valid and enforceable under applicable law) shall be
controlling over any other disposition, testamentary or otherwise, as
determined by the Committee in its discretion. If no designated beneficiary
survives the participant and is living on the date on which any amount becomes
payable to such a participant's beneficiary, such payment will be made to the
legal representatives of the participant's estate, and the term "beneficiary"
as used herein shall be deemed to include such person or persons. If there are
any questions as to the legal right of any beneficiary to receive a
distribution under the Plan, the Committee in its discretion may determine that
the amount in question be paid to the legal representatives of the estate of
the participant, in which event the Company, the Board and the Committee and
the members thereof, will have no further liability to anyone with respect to
such amount.
13. FINANCIAL ASSISTANCE. If the Committee determines that such action is
advisable, the Company may assist any person to whom an Award has been granted
in obtaining financing from the Company (or under any program of the Company
approved pursuant to applicable law), or from a bank or other third party, on
such terms as are determined by the Committee, and in such amount as is
required to accomplish the purposes of the Plan, including, but not limited to,
to permit the exercise of an Award, the participation therein and/or the
payment of any taxes in respect thereof. Such assistance may take any form that
the Committee deems appropriate, including, but not limited to, a direct loan
from the Company, a guarantee of the obligation by the Company or the
maintenance by the Company of deposits with such bank or third party.
14. MISCELLANEOUS PROVISIONS.
(a) No employee or other person shall have any claim or right to be granted
an Award under the Plan. Determinations made by the Committee under the Plan
need not be uniform and may be made selectively among eligible individuals
under the plan, whether or not such eligible individuals are similarly
situated. Neither the Plan nor any action taken hereunder shall be construed as
giving any employee or other person any right to continue to be employed by or
perform services for the Company, and the right to terminate the employment of
or performance of services by any participants at any time and for any reason
is specifically reserved.
(b) No participant or other person shall have any right with respect to the
Plan, the Common Shares reserved for issuance under the Plan or in any Award,
contingent or otherwise, until written evidence of the Award shall have been
delivered to the participant and all the terms, conditions and provisions of
the Plan and the Award applicable to such participant (and each person claiming
under or through him) have been met.
(c) Except as may be approved by the Committee where such approval shall not
adversely affect compliance of the Plan with Rule 16b-3, a participant's rights
and interest under the Plan may not be assigned or transferred, hypothecated or
encumbered in whole or in part either directly or by operation of law or
otherwise (except in the event of a participant's death) including, but not by
way of limitation, execution, levy, garnishment, attachment, pledge, bankruptcy
or in any other manner; provided, however, that any Option or similar right
(including, but not limited to, a Stock Appreciation Right) offered pursuant to
the Plan shall not be transferable other than by will or the laws of descent
and distribution and shall be exercisable during the participant's lifetime
only by him.
(d) No Common Shares, or other forms of payment shall be issued hereunder
with respect to any Award unless counsel for the Company shall be satisfied
that such issuance will be in compliance with applicable federal, state, local
and foreign governmental, self-regulatory and other applicable requirements.
(e) It is the intent of the Company that the Plan comply in all respects with
Rule 16b-3, that any ambiguities or inconsistencies in construction of the Plan
be interpreted to give effect to such intention and that if any provision of
the Plan is found not to be in compliance with Rule 16b-3, such provision shall
be deemed null and void to the extent required to permit the Plan to comply
with Rule 16b-3.
(f) The Company shall have the right to deduct from any payment made under
the Plan any federal, state, local or foreign income or other taxes required by
law to be withheld with respect to such payment. It
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shall be a condition to the obligation of the Company to issue Common Shares,
other forms of payment, or any combination thereof, upon exercise, settlement
or payment of any Award under the Plan, that the participant (or any
beneficiary or person entitled to act) pay to the Company, upon its demand,
such amount as may be required by the Company for the purpose of satisfying any
liability to withhold federal, state, local or foreign income or other taxes.
If the amount requested is not paid, the Company may refuse to issue Common
Shares, or other forms of payment, or any combination thereof. Notwithstanding
anything in the Plan to the contrary, the Committee may, in its discretion,
permit an eligible participant (or any beneficiary or person entitled to act
for such participant or beneficiary) to elect to pay all or a portion of the
amount requested by the Company for such taxes with respect to such Award, at
such time and in such manner as the Committee shall deem to be appropriate
(including, but not limited to, by authorizing the Company to withhold, or
agreeing to surrender to the Company on or about the date such tax liability is
determinable, Common Shares, or other forms of payment, or any combination
thereof, owned by such person or a portion of such forms of payment that would
otherwise be distributed, or have been distributed, as the case may be,
pursuant to such Award to such person, having a fair market value equal to the
amount of such taxes).
(g) The expenses of the Plan shall be borne by the Company.
(h) The Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Award under the Plan, and rights to the
payment of Awards shall be no greater than the rights of the Company's general
creditors.
(i) By accepting any Award or other benefit under the Plan, each participant
and each person claiming under or through such participant shall be
conclusively deemed to have indicated such person's acceptance and ratification
of, and consent to, any action taken under the Plan by the Company, the Board
or the Committee or its delegates.
(j) The masculine pronoun includes the feminine and the singular includes the
plural wherever appropriate.
(k) The appropriate officers of the Company shall cause to be filed any
reports, returns or other information regarding Awards hereunder of any Common
Shares issued pursuant hereto as may be required by Section 13 or 15(d) of the
Exchange Act (or any successor provision) or any other applicable statute, rule
or regulation.
(l) The validity, construction, interpretation, administration and effect of
the Plan, the rules and regulations relating to the Plan, and rights relating
to and Awards granted under the Plan shall be governed by the substantive laws,
but not the choice of law rules, of the State of Illinois.
15. PLAN AMENDMENT OR SUSPENSION. The Plan may be amended or suspended in
whole or in part at any time and from time to time by the Board, but no
amendment shall be effective unless and until the same is approved by
shareholders of the Company where the failure to obtain such approval would
adversely affect the compliance of the Plan with Rule 16b-3 under the Exchange
Act and with other applicable law. No amendment of the Plan shall adversely
affect in a material manner any right of any participant with respect to any
Award theretofore granted without such participant's written consent, except as
permitted under Paragraph 8.
16. PLAN TERMINATION. This Plan shall terminate upon the earlier of the
following to occur:
(a) upon the adoption of a resolution of the Board terminating the Plan;
or
(b) ten years from the date the Plan is initially approved and adopted by
the shareholders of the Company in accordance with Paragraph 17 hereof;
provided, however, that the Board may, prior to the expiration of such ten-
year period, extend the term of the Plan for an additional period of up to
five years for the grant of Awards other than Incentive Stock Options. No
termination of the Plan shall
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materially alter or impair any of the rights or obligations of any person,
without such person's consent, under any Award theretofore granted under
the Plan, except that subsequent to termination of the Plan, the Committee
may make amendments permitted under Paragraph 8.
17. SHAREHOLDER ADOPTION. The Plan shall be submitted to the shareholders of
the Company, for their approval and adoption in accordance with applicable law
and Rule 16b-3. The Plan shall not be effective and no Award shall be made
hereunder unless and until the Plan has been so approved and adopted.
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EXHIBIT 4.E
NORTHWESTERN STEEL AND WIRE COMPANY
1994 DIRECTOR STOCK OPTION PLAN
1. Purpose. The purpose of the 1994 Director Stock Option Plan of
Northwestern Steel and Wire Company is to promote the interests of the Company
by providing an inducement to obtain and retain the services of qualified
persons, who are not employees of the Company or any Subsidiary or affiliate of
the Company, to serve as members of the Board.
2. Definitions. As used herein, the following terms shall have the following
meanings:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean Northwestern Steel and Wire Company, an Illinois
corporation.
"Director" shall mean a member of the Company's board of directors.
"Disability" shall mean the condition of an Optionee which renders such
Optionee unable to engage in any substantial gainful activities by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve (12) months or which
prevents such Optionee from serving as a Director.
"Eligible Directors" shall mean all Directors except for those (1) which
are employees of the Company or any Subsidiary or affiliate of the Company
or (2) who are employees or affiliates of Kohlberg & Co., L.P., a Delaware
limited partnership.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Fair Market Value" shall mean the arithmetic mean of the highest and
lowest sale prices of the shares of the Company's Stock as reported on
NASDAQ National Market System on (i) the relevant date for valuation or
(ii) if there are no such sales on such date, the nearest preceding date
upon which such sales took place.
"Ineligible Directors" shall mean those Directors who are not Eligible
Directors.
"Option" shall mean an option to purchase shares of Stock, granted
pursuant to the Plan and subject to the terms and conditions described in
the Plan, which is not an "incentive stock option" within the meaning of
Section 422A of the Code.
"Optionee" shall mean a Director who is designated to receive Options
pursuant to the Plan.
"Plan" shall mean the Northwestern Steel and Wire Company 1994 Director
Stock Option Plan, as amended from time to time pursuant to Section 7.
"Stock" shall mean the Company's common stock, par value $.01 per share.
"Subsidiary" shall mean a subsidiary of the Company as defined in Section
425(f) of the Code.
3. Administration. The Plan shall be administered by the Ineligible
Directors. Grants of Options under the Plan and the amount and nature of the
awards to be granted shall be automatic as described in Section 5. The
Ineligible Directors have the power to interpret the Plan, to determine all
questions thereunder and to adopt and amend such rules and regulations for the
administration of the Plan as they may deem desirable. Any interpretation,
determination, or other action made or taken by the Ineligible Directors shall
be final, binding and conclusive. Any action reduced to writing and signed by
all of the Ineligible Directors shall be as fully effective as if it had been
taken by a vote at a meeting duly called and held. None of the Ineligible
Directors shall be personally liable for any interpretation, determination or
other action made in good faith with respect to the Plan or the Options.
<PAGE>
4. Shares Subject to the Plan
(a) Class. The shares which are to be made the subject of awards granted
under the Plan shall be the Company's authorized but unissued Stock. In
connection with the issuance of Stock under the Plan, the Company may
repurchase Stock in the open market or otherwise.
(b) Aggregate Amount. The total number of shares of Stock authorized for
issuance pursuant to Options granted under the Plan shall not exceed 50,000
shares (subject to adjustment under Section 8(c)). If any outstanding Option
expires or terminates prior to exercise for any reason, then the Stock
allocable to the unexercised portion of such Option shall not be charged
against the limitation of this Section 4(b) and may again become the subject of
an Option granted under the Plan.
5. Terms, Conditions and Form of Options. Each Option granted under the Plan
shall be evidenced by a written agreement (the "Agreement") in such form as the
Ineligible Directors shall from time to time approve, which agreements shall
comply with and be subject to the following terms and conditions:
(a) Option Grants. On the date of the first meeting of the Board
following the Annual Meeting of Shareholders in each year, each Eligible
Director will automatically be granted an Option to purchase 2,500 shares
of Stock, without further action by the Board.
(b) Exercise Period. Options become exercisable no sooner than six months
after the grant date of the Option; provided, however, that any Option
granted pursuant to the Plan shall become exercisable in full upon the
director's death or Disability. Options shall terminate five years from the
date of grant. In the event any Eligible Director voluntarily resigns from
the Board during any year of service, Options granted to such Eligible
Director with respect to such year shall terminate upon the later of six
months from the grant date and 90 days following such resignation.
(c) Exercise Price. The price per share of Stock at which an Option may
be exercised shall be equal to the Fair Market Value on the date the Option
is granted.
(d) Exercise Procedure. Options may be exercised (in full or in part) by
written notice to the Company at its principal office specifying the number
of shares of Stock with respect to which the Option is being exercised and
accompanied by payment, in cash, Stock or the surrender of outstanding
Options, of the exercise price for the shares with respect to which the
Option is being exercised.
(e) Options Non-Transferable. No option granted under the Plan shall be
transferable other than by will or by the laws of descent and distribution.
No interest of any Optionee under the Plan shall be subject to attachment,
execution, garnishment, sequestration, the laws of bankruptcy or any other
legal or equitable process. During the lifetime of the Optionee, Options
shall be exercisable only by the Optionee who received them or the
Optionee's guardian or legal representative.
(f) Death or Disability of Optionee. In the case of death, Options may be
exercised by the person or persons to whom the Optionee's rights under the
Option pass by will or applicable law or, if no person has such rights, by
the Optionee's executors or administrators; provided that such person(s)
consent in writing to abide by and be subject to the terms of the Plan and
the Agreement and such written consent is delivered to an officer of the
Company. In the case of Disability such that an Optionee is incapable of
exercising an Option, Options may be exercised by the Optionee's legal
guardian, or, if no such person exists, by the person or persons to whom
the Optionee's rights under the Option pass by will or applicable law or,
if no person has such rights, by the Optionee's executors or
administrators; provided that such person(s) consent in writing to abide by
and be subject to the terms of the Plan and the Agreement and such written
consent is delivered to an officer of the Company.
(g) Termination of Services as Director. If an Optionee ceases to be a
Director for any reason, he, or such person's representative as provided in
Section 5(f), may exercise such person's Option at any time or from time to
time, but in no event later than the expiration date specified pursuant to
Section 5(b).
(h) No Rights as Shareholder. No Optionee shall have any rights as a
shareholder with respect to any shares subject to Options prior to the date
of issuance to such person of a certificate or certificates for such
shares.
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<PAGE>
6. Compliance With Other Laws and Regulations. The Plan, the grant and
exercise of Options under the Plan, and the obligation of the Company to
transfer shares under such Options shall be subject to all applicable federal
and state laws, rules and regulations, including those related to disclosure of
financial and other information to Optionees, and to any approvals by any
government or regulatory agency as may be required. The Company shall not be
required to issue or deliver any certificates for shares of Stock prior to (a)
the listing of such shares on any stock exchange or the NASDAQ National Market
System on which the Stock may then be listed, where such listing is required
under the rules or regulations of such exchange or system, and (b) the
compliance with applicable federal and state securities laws and regulations
relating to the issuance and delivery of such certificates; provided, however,
that the Company shall make all reasonable efforts to so list such shares and
to comply with such laws and regulations.
7. Amendment and Discontinuance. The Board may from time to time amend,
suspend or discontinue the Plan; provided, however, that, subject to the
provisions of Section 8(c), no action of the Board without approval of the
shareholders of the Company may be taken if such action would cause the Plan to
fail to comply with Rule 16b-3 of the Securities Exchange Act of 1934, as
amended, as then in effect without the consent of each Option holder.
Notwithstanding the foregoing, Section 5 shall not be amended more than once
every six months, other than to comport with changes in the Code, ERISA or the
rules thereunder.
8. General Provisions.
(a) Assignability. The rights and benefits under the Plan shall not be
assignable or transferable by an Eligible Director other than by will or by the
laws of descent and distribution, and during the lifetime of the director,
Options granted under the Plan shall be exercisable only by him.
(b) Termination of Plan. No Options may be granted under this Plan after the
date which is five years after the effective date of the Plan (or if such date
is not a business day, on the next succeeding business day). The Plan shall
automatically terminate after all Options granted thereunder have terminated or
expired.
(c) Adjustments in Event of Change in Stock. In the event of any change in
the Stock by reason of any stock dividend, recapitalization, reorganization,
merger, consolidation, stock split, combination, or exchange of shares, or of
any similar change affecting the Stock, the number and class of shares subject
to outstanding Agreements, the exercise price per share thereof, and any other
terms of the Plan or the Agreements which in the Ineligible Directors' sole
discretion require adjustment shall be appropriately adjusted consistent with
such change in such manner as the Ineligible Directors may deem appropriate.
(d) No Right to Continue as a Director. None of the Plan, the granting of an
Option or any other action taken pursuant to the Plan shall constitute or be
evidence of any agreement or understanding, express or implied, that the
Company will retain a director for any period of time or at any particular rate
of compensation.
(e) ERISA. The Plan is not an employee benefit plan which is subject to the
provisions of ERISA and the provisions of Section 401(a) of the Code are not
applicable to the Plan.
(f) Non-Statutory Stock Options. All Options granted under the Plan shall be
non-statutory options not entitled to special tax treatment under Section 422A
of the Code.
(g) Effective Date of the Plan. The Plan shall take effect upon adoption by
the shareholders of the Company.
(h) Governing Law. The Plan and all interpretations and determinations made
and actions taken pursuant hereto shall be governed by the laws of the State of
Illinois without regard to the choice of law provisions thereof.
(i) Variation of Pronouns. All pronouns and any variations thereof contained
herein shall be deemed to refer to masculine, feminine, neuter, singular or
plural, as the identity of the person or persons may require.
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EXHIBIT 5
---------
May 4, 1994
Northwestern Steel and Wire Company
121 Wallace Street
Sterling, Illinois 61081
Re: Shares of Common Stock, $0.01 par value
---------------------------------------
Gentlemen:
We are acting as counsel to Northwestern Steel and Wire Company, an
Illinois corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), of a Registration Statement on Form S-8
and Form S-3 (the "Registration Statement") covering an aggregate of 1,690,000
shares (the "Shares") of the Company's Common Stock, $0.01 par value (the
"Common Stock"). The Shares have been authorized and reserved for issuance by
the Company and may be sold upon the exercise of options which previously have
been granted and/or may be granted to certain persons under the Company's
Management Stock Option Plan, 1994 Long-Term Incentive Plan and 1994 Director
Stock Option Plan. The Registration Statement has been filed with respect to
the issuance by the Company of the Shares and the reoffering of the Shares by
certain employees and directors of the Company.
We have examined originals, or copies certified or otherwise identified
to our satisfaction, of such documents, corporate records and other instruments
as we have deemed necessary for the purposes of this opinion, including the
following: (a) the Amended and Restated Certificate of Incorporation and the
Amended and Restated By-laws of the Company, each as amended to the date hereof;
and (b) certain resolutions adopted by the Board of Directors of the Company.
In addition, we have made such other and further investigations as we have
deemed necessary to enable us to express the opinions hereinafter set forth.
Based upon the foregoing and having regard to legal considerations that
we deemed relevant, and subject to the comments and qualifications set forth
below, it is our opinion that the Shares, when duly executed and delivered by
authorized officers of the Company and issued upon receipt of the consideration
to be paid therefor (all in conformity with the Board of Directors' resolutions
examined by us), will be legally issued, fully paid and non-assessable.
<PAGE>
Northwestern Steel and
Wire Company
May 4, 1994
Page 2
For purposes of this opinion, we have with your permission made the
following assumptions, in each case without independent verification: (1) the
authenticity of all documents submitted to us as originals, (2) the conformity
to the originals of all documents submitted to us as copies, (3) the
authenticity of the originals of all documents submitted to us as copies, (4)
the genuineness of the signatures of persons signing all documents in connection
with which this opinion is rendered, (5) the authority of such persons signing
all documents on behalf of the parties thereto, and (6) the due authorization,
execution and delivery of all documents by the parties thereto.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the section
entitled "Legal Matters" in the prospectus included in the Registration
Statement. In giving such consent, we do not thereby concede that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations promulgated thereunder.
We do not find it necessary for purposes of this opinion to cover, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the offering and sale of the Common
Stock.
This opinion shall be limited to the laws of the State of Illinios.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
KIRKLAND & ELLIS
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Northwestern Steel and Wire Company on Form S-8 and Form S-3 of our report dated
September 20, 1993, on our audits of the consolidated financial statements of
Northwestern Steel and Wire Company as of July 31, 1993 and 1992, and for each
of the three years in the period ended July 31, 1993. We also consent to the
reference to our Firm under the caption "Experts."
COOPERS & LYBRAND
Chicago, Illinois
May 3, 1994
