As filed with the Securities and Exchange Commission
on November 8, 1995
Registration No. 33-
______________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________________________________
FORM S-8
Registration Statement
Under
The Securities Act of 1933
______________________________________________________
BIRMINGHAM STEEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3213634
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or Number)
organization)
1000 Urban Center Drive, Suite 300
Birmingham, Alabama 35242
(Address of principal executive offices,
including zip code)
1995 STOCK ACCUMULATION PLAN
(Full Title of the Plan)
James A. Todd, Jr.
Chairman of the Board
1000 Urban Center Drive, Suite 300
Birmingham, Alabama 35242
(205) 970-1200
(Name, address and telephone number, including
area code, of agent for service)
_____________________________________________________
Copies Requested to:
Helen T. Ferraro
Smith, Gambrell & Russell
Suite 1800
3343 Peachtree Road, N.E.
Atlanta, Georgia 30326
(404) 264-2620
______________________________________________________
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Offering Registra-
Registered Registered Per Share(1) Price (1) tion Fee
- ---------- ---------- ------------ --------- ---------
$.01 par
value
Common 500,000
Stock Shares $15.00 $7,500,000 $2,587
- --------------------------------------------------------
(1) Estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(c).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are hereby incorporated
by reference into this Registration Statement, and all
documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities
offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing such
documents:
(a) the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1995;
and
(b) the description of the Company's Common
Stock contained in the Company's
Registration Statement on Form 8-A, as
filed with the Securities and Exchange
Commission on January 22, 1988.
Item 4. Description of Securities.
No response to this item is required.
Item 5. Interests of Named Experts and Counsel.
No response to this item is required.
Item 6. Indemnification of Officers and Directors.
The Registrant's Certificate of Incorporation and
By-Laws provide for indemnification of directors and
officers of the Registrant to the fullest extent
permitted by Delaware law.
Section 145 of the General Corporation Law of the
State of Delaware provides that 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, by reason of
the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at its
request in such capacity in another corporation or
business association, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
In addition, pursuant to the authority of Delaware
law, the Certificate of Incorporation of the Registrant
also eliminates the monetary liability of directors to
the fullest extent permitted by Delaware law.
Item 7. Exemption from Registration Claimed.
No response to this item is required.
Item 8. Exhibits.
The following exhibits are filed with this
Registration Statement:
Exhibit
Number Description of Exhibit
------- -----------------------------
4.1 Registrant's 1995 Stock Accumulation Plan.
5.1 Opinion of Smith, Gambrell & Russell.
24.1 Consent of Ernst & Young.
24.2 Consent of Smith, Gambrell & Russell
(contained in their opinion filed as
Exhibit 5.1).
Item 9. Undertakings.
(a) The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which
offers or sales are being made, a
post-effective amendment to this
Registration Statement 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;
(2) That, for the purpose of determining
any liability under the Securities
Act of 1933, each such post-effective
amendment shall be deemed to be a new
registration statement relating to
the securities offered therein, and
the offering of such securities at
that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of
the securities being registered which
remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby
undertakes that, for purposes of
determining any liability under the
Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to
section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 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 the time
shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933
may be permitted to directors, officers and
controlling persons of the registrant
pursuant to the foregoing provisions, or
otherwise, the registrant has been advised
that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in 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.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the
City of Birmingham, State of Alabama, on this 17th day
of October, 1995.
BIRMINGHAM STEEL CORPORATION
Date: 10/17/95 By: /s/ James A. Todd,Jr.
----------------- ---------------------------
James A. Todd, Jr.
Chairman of the Board and Chief
Executive Officer (Principal Executive
Officer)
Date: 10/17/95 By: /s/ John M. Casey
----------------- ---------------------------
John M. Casey
Executive Vice President and Chief
Financial Officer (Principal Accounting
and Financial Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints
James A. Todd, Jr. and John M. Casey and each of them,
his attorney-in-fact, with power of substitution, for
him in any and all capacities, to sign any amendments or
supplements to this Registration Statement and any other
instruments he deems necessary or appropriate, and to
file the same, with exhibits thereto and other documents
in connection therewith, with the Securities and
Exchange Commission and any State Securities
Commissions, hereby ratifying and confirming all that
said attorney-in-fact or his substitute or substitutes
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed
below by the following persons in the capacities and on
the dates indicated.
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James A. Todd, Jr. Chairman of the Board and Chief 10/17/95
- ---------------------- Executive Officer, Director --------
James A. Todd, Jr.
/s/ Paul H. Ekberg Vice Chairman of the Board and 10/17/95
- ---------------------- Chief Operating Officer, Director --------
Paul H. Ekberg
/s/ Thomas N. Tyrrell Vice Chairman of the Board and 10/17/95
- ---------------------- Chief Administrative Officer, Director --------
Thomas N. Tyrrell
/s/ E. Mandell de Windt Director 10/17/95
- ----------------------- --------
E. Mandell de Windt
/s/ William J. Cabaniss, Jr. Director 10/17/95
- ---------------------------- --------
William J. Cabaniss, Jr.
/s/ C. Stephen Clegg Director 10/17/95
- ---------------------------- --------
C. Stephen Clegg
/s/ Harry Holiday, Jr. Director 10/17/95
- ---------------------- --------
Harry Holiday, Jr.
/s/ E. Bradley Jones Director 10/17/95
- ---------------------- --------
E. Bradley Jones
/s/ Reginald H. Jones Director 10/17/95
- ---------------------- --------
Reginald H. Jones
/s/ George A. Stinson Director 10/17/95
- ---------------------- --------
George A. Stinson
/s/ T. Evans Wyckoff Director 10/17/95
- ---------------------- --------
T. Evans Wyckoff
</TABLE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------- -----------------------
4.1 - Registrant's 1995 Stock
Accumulation Plan
5.1 - Opinion of Smith, Gambrell &
Russell.
24.1 - Consent of Ernst & Young LLP
24.2 - Consent of Smith, Gambrell
& Russell (contained in
their opinion filed as
Exhibit 5.1).
EXHIBIT 4.1
THE BIRMINGHAM STEEL CORPORATION
STOCK ACCUMULATION PLAN
Section 1. Purpose of the Plan.
The name of this plan is THE BIRMINGHAM STEEL
CORPORATION STOCK ACCUMULATION PLAN (the "Plan"). The
purpose of the Plan is to enable BIRMINGHAM STEEL
CORPORATION (the "Company") and its Subsidiaries and
Affiliates to attract, retain and motivate officers and
other key employees, to compensate them for their
contributions to the growth and profits of the Company
and to encourage ownership of stock in the Company on
the part of such personnel. The Plan provides
incentives to participating officers and other key
employees which are linked directly to increases in
stockholder value and will, therefore, inure to the
benefit of all stockholders of the Company.
Section 2. Definitions.
For the purposes of the Plan, the following terms
shall be defined as set forth below:
(a) "Affiliate" means any corporation (other
than a Subsidiary), partnership, joint venture or any
other entity in which the Company owns, directly or
indirectly, at least a 10 percent beneficial ownership
interest.
(b) "Board" means the Board of Directors of the
Company.
(c) "Bonus Participation Amount" means, with
respect to any Participant for any fiscal year of the
Company, the aggregate amount by which the right of such
Participant to receive payment in cash with respect to
any cash bonus under the Cash Bonus Plan otherwise
payable to such Participant with respect to such fiscal
year has been reduced pursuant to participation in the
Plan as provided in Section 4 hereof. The Bonus
Participation Amount shall be computed by multiplying
(i) the sum of the Specified Percentage and the
participation percentage, if any, elected by such
Participant pursuant to Section 4(a)(ii)(A)(I) by (ii)
the gross amount of the cash bonus which would have been
payable to that Participant with respect to that fiscal
year under the Cash Bonus Plan if the Participant were
not required to, and had not elected to, participate in
the Plan.
(d) "Cash Bonus Plan" shall have the meaning
ascribed thereto in Section 4(a) hereof.
(e) "Cause" means a felony conviction of a
Participant or the failure of a Participant to contest
prosecution for a felony, or a Participant's willful
misconduct or dishonesty, any of which is harmful to the
business or reputation of the Company or any Subsidiary
or Affiliate.
(f) "Change of Control" means the happening of
any of the following:
(i) when any "person", as such term used
in Section 13(d) and 14(d) of the Exchange Act
(other than the Company or a Subsidiary or any
Company employee benefit plan (including its
trustee)), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly of securities of the
Company representing 20 percent or more of the
combined voting power of the Company's then
outstanding securities;
(ii) when, during any period of two
consecutive years during the existence of the
Plan, individuals who, at the beginning of such
period, constituted the Board cease, for any
reason other than death, to constitute at least a
majority thereof, unless each director who was
not a director at the beginning of such period
was elected by, or on the recommendation of, at
least two-thirds of the individuals who were
directors at the beginning of such period; or
(iii) the occurrence of a transaction
requiring stockholder approval for the
acquisition of the Company by an entity other
than the Company or a Subsidiary through purchase
of assets, or by merger, or otherwise.
(g) "Change of Control Price" means, as of any
date of computation, the highest price per share paid in
any transaction reported on the New York Stock Exchange
Composite Tape, or paid or offered in any transaction
related to a potential or actual Change of Control of
the Company, in each case, at any time during the sixty
day period preceding such computation date as determined
by the Committee.
(h) "Code" means the Internal Revenue Code of
1986, as amended, or any successor statute thereto.
(i) "Commission" means the Securities and
Exchange Commission.
(j) "Committee" means the Compensation and Stock
Option Committee of the Board, or any other committee of
the Board consisting exclusively of Disinterested
Persons hereafter appointed for the purpose of, or
charged by the Board with the responsibility for,
administering the Plan.
(k) "Computation Value" means the Fair Market
Value of the Stock as of the day on which the applicable
cash bonus is declared under the Cash Bonus Plan, in the
case of Restricted Stock to be received pursuant to
Section 4(a)(i) or Section 4(a)(ii)(A)(I), and the last
trading day of the applicable month, in the case of
Restricted Stock to be received pursuant to the other
provisions of Section 4(a)(ii), in each case, discounted
by such factor (the "Discount Factor") as is determined
by the Committee from time to time to be appropriate to
reflect both the impact on valuation of the restrictions
applicable to the Restricted Stock under Section 6 and
the risk of forfeiture of the Restricted Stock by a
Participant under Section 6(d). Until such time as
determined otherwise by the Committee, the Discount
Factor shall be 25 percent.
(l) "Disability" means total and permanent
disability as determined under the Company's long-term
disability program as from time to time in effect.
(m) "Disinterested Person" shall have the
meaning set forth in Rule 16b-3(d)(3) as promulgated by
the Commission under the Exchange Act, or any successor
definition adopted by the Commission.
(n) "Early Retirement" means retirement from
active employment with the Company, any Subsidiary and
any Affiliate pursuant to the early retirement
provisions of any applicable Company pension plan.
(o) "Effective Period" means the six-month
period (or such shorter period as is provided in Section
5) during which an election by an Eligible Employee to
participate in the Plan pursuant to Section 4(a)(ii)
hereof is in effect (without regard to any re-election
which may occur or the continuation of such election
which may occur as provided under Section 5 hereof);
provided that if any Participant ceases to be an
Eligible Employee during any period in which such an
election would otherwise be in effect, the Effective
Period with respect to such election shall end as of the
date such Participant ceases to be an Eligible Employee.
(p) "Eligible Employee" shall have the meaning
ascribed thereto in Section 3 hereof.
(q) "Exchange Act" means the Securities Exchange
Act of 1934, as amended, and any successor thereto.
(r) "Fair Market Value" means, as of any given
date, the closing price of the Stock on such date (or,
if no transactions were reported on such date, on the
next preceding date on which transactions were so
reported) on the New York Stock Exchange Composite Tape
or, if the Stock is not on such date listed on the New
York Stock Exchange, in the principal market in which
such stock is traded on such date.
(s) "1990 Plan" means the Birmingham Steel
Corporation 1990 Management Incentive Plan.
(t) "Normal Retirement" means retirement from
active employment with the Company, any Subsidiary and
any Affiliate on or after the normal retirement date
specified in any applicable Company pension plan.
(u) "Participant" shall have the meaning
ascribed thereto in Section 3 hereof.
(v) "Participation Amount" means, with respect
to any Participant for any month during the Effective
Period, the aggregate amount by which the right of such
Participant to receive payment in cash with respect to
any incentive compensation and any base compensation
otherwise payable to such Participant with respect to
such month has been reduced pursuant to participation in
the Plan as provided in Section 4 hereof. The
Participation Amount shall be computed by (i)
multiplying (A) the applicable participation percentage
elected by such Participant with respect to incentive
compensation or base compensation, as the case may be,
under Section 4(a) hereof by (B) the gross amount of
that type of compensation which would have been payable
to that Participant with respect to that month if the
Participant had not elected to participate in the Plan,
(ii) totalling the amounts determined under clause (i),
and (iii) adding to the total determined under clause
(ii) the amount, if any, carried forward from the
immediately preceding month under Section 4(c)(ii).
(w) "Potential Change of Control" means the
happening of any of the following:
(i) the entering into an agreement by the
Company, the consummation of which would result
in a Change of Control of the Company; or
(ii) the acquisition of beneficial
ownership, directly or indirectly, by any entity,
person or group (other than the Company or a
Subsidiary or any Company employee benefit plan
(including its trustee)) of securities of the
Company representing 5 percent or more of the
combined voting power of the Company's
outstanding securities and the adoption by the
Board of Directors of a resolution to the effect
that a Potential Change of Control of the Company
has occurred for purposes of this Plan.
(x) "Restricted Period" means the three-year
period (or such other period as is determined by the
Committee in accordance with the terms hereof, in each
case, together with any extensions thereof approved as
provided herein) commencing on the date of the issuance
of the applicable shares of Restricted Stock to or for
the account of a Participant hereunder, whether or not
such shares are evidenced by a book entry or a
certificate and whether or not any such certificate is
held in the custody of the Company.
(y) "Restricted Stock" means Stock received by
a Participant hereunder that is subject to the
restrictions set forth in Section 6 hereof.
(z) "Retirement" means Normal Retirement or
Early Retirement.
(aa) "Specified Percentage" shall have the
meaning ascribed thereto in Section 4(a) hereof.
(bb) "Stock" means the Common Stock of the
Company.
(cc) "Subsidiary" means any corporation (other
than the Company) in an unbroken chain of corporations
beginning with the Company if each of the corporations
(other than the last corporation in the unbroken chain)
owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in the chain.
Section 3. Eligibility for Participation.
(a) The chief executive officer, chief operating
officer, chief administrative officer, chief financial
officer and each executive vice president of the Company
shall be eligible to participate in the Plan. In
addition, those officers and other key employees of the
Company or its Subsidiaries or Affiliates who are, in
the judgment of the Committee, responsible for or
contribute to the management, growth and/or
profitability of the Company or its Subsidiaries or
Affiliates may be designated by the Committee from time
to time as being eligible to participate in the Plan
(such officers and key employees who are so designated
by the Committee, together with those officers
specifically identified in the preceding sentence, are
referred to herein as "Eligible Employees").
Participation in the Plan by any Eligible Employee may
be either mandatory or elective as provided in Section
4 below. Those Eligible Employees who are required to
participate in the Plan or who elect to participate in
the Plan, in each case, in accordance with the
applicable provisions hereof, are referred to herein as
"Participants."
Section 4. Levels of Participation.
(a) The prescribed and permitted levels of
participation in the Plan by Eligible Employees shall be
determined from time to time by the Committee; provided
that the Committee shall not require any mandatory
participation in the Plan with respect to the base
compensation of any Eligible Employee.
(i) Unless otherwise determined by the
Committee, all Eligible Employees who are
participants in the Company's discretionary cash
bonus plan (the "Cash Bonus Plan") and who will
be under the age of 62 at the time cash bonuses
for the applicable year are to be paid under the
Cash Bonus Plan will be required to participate
in the Plan as and to the extent set forth in
this Section 4(a)(i). Each such Eligible
Employee will receive shares of Restricted Stock
under the Plan in lieu of the Company's payment
in cash of a specified percentage (the "Specified
Percentage") of such Eligible Employee's
discretionary cash bonus for that year under the
Cash Bonus Plan. The amount of the Specified
Percentage shall be determined by the Committee
from time to time in its sole discretion, and any
such determination (including the initial
designation of the Specified Percentage set forth
in the next sentence) shall continue in effect
until such time as the Committee determines that
the Specified Percentage shall thereafter be a
different amount. The Specified Percentage with
respect to the first award of cash bonuses under
the Cash Bonus Plan following the adoption of the
Plan shall be 10 percent.
(ii) Each Eligible Employee may, but is
not required to, elect to receive shares of
Restricted Stock under the Plan in lieu of the
right to receive a portion of his/her
compensation in cash as and to the extent
provided below in this Section 4(a)(ii).
(A) Eligible Employees who are
participants in the Cash Bonus Plan may
elect to receive shares of Restricted Stock
under the Plan in lieu of the right to
receive payment in cash by the Company (or
a Subsidiary or Affiliate, as applicable)
of:
(I) up to 50 percent (in
increments of 5 percent) of such
Eligible Employee's discretionary
cash bonus for such year under the
Cash Bonus Plan (less the Specified
Percentage if applicable to such
bonus under Section 4(a)(i) above);
and/or
(II) up to 20 percent (in
increments of 5 percent) of such
Eligible Employee's base compensation
otherwise payable by the Company (or
a Subsidiary or Affiliate, as
applicable) with respect to the
Effective Period; and
(B) Eligible Employees who are not
participants in the Cash Bonus Plan may
elect to receive shares of Restricted Stock
under the Plan in lieu of the right to
receive payment in cash by the Company (or
a Subsidiary or Affiliate, as applicable)
of:
(I) up to 10 percent (in
increments of 5 percent) of such
Eligible Employee's incentive
compensation otherwise payable with
respect to the Effective Period under
an incentive compensation plan of the
Company (or a Subsidiary or
Affiliate, as applicable) other than
the 1990 Plan; and/or
(II) up to 10 percent (in
increments of 5 percent) of such
Eligible Employee's base compensation
otherwise payable by the Company (or
a Subsidiary or Affiliate, as
applicable) with respect to the
Effective Period.
(iii) Any reduction in the right of an
Eligible Employee to receive payment of base
compensation or incentive compensation in cash
resulting from such Eligible Employee's elective
participation in the Plan under Section
4(a)(ii)(A)(II) or Section 4(a)(ii)(B) hereof
shall be applied pro rata to each payment of the
applicable type of compensation made to such
Eligible Employee with respect to the Effective
Period.
(b) Subject to the provisions of Section 6
hereof,
(i) the shares of Restricted Stock to be
received by a Participant pursuant to Section 4(a)(i)
and Section 4(a)(ii)(A)(I) shall be issued to or
credited to the account of such Participant by the
Company not later than the fifth business day after the
last day of the month in which the applicable cash bonus
of such Participant is paid under the Cash Bonus Plan,
the number of shares to be so issued or credited to be
determined under Section 4(c)(i) below, and
(ii) the shares of Restricted Stock to be
received by a Participant pursuant to the other
provisions of Section 4(a)(ii) shall be issued to or
credited to the account of such Participant on a monthly
basis not later than the fifth business day after the
last day of each month during the Effective Period, the
number of shares to be so issued or credited with
respect to each month to be determined under Section
4(c)(ii) below.
(c) (i) The number of shares of Restricted stock
to be issued to a Participant under Section 4(a)(i) and
Section 4(a)(ii)(A)(I) shall be determined by dividing
(A) such Participant's Bonus Participation Amount by (B)
the applicable Computation Value of the Stock; provided
that no fractional shares of Restricted Stock shall be
issued, and the amount computed by multiplying any
fractional share interest otherwise resulting from such
determination by the applicable Computation Value shall
be paid over to the Participant (net of any applicable
tax withholding).
(ii) The number of shares of Restricted
Stock to be issued to a Participant under Section
4(a)(ii)(A)(II) or Section 4(a)(ii)(B) with respect to
any month during the Effective Period shall be
determined by dividing (x) such Participant's
Participation Amount applicable to such month by (y) the
applicable Computation Value of the Stock; provided that
no fractional shares of Restricted Stock shall be
issued, and the amount computed by multiplying any
fractional share interest otherwise resulting from such
determination by the applicable Computation Value shall
be carried forward and added to such Participant's
Participation Amount applicable to the next succeeding
month or, at the option of the Committee, shall be paid
over to the Participant (net of any applicable tax
withholding).
Section 5. Method of Election.
(a) An Eligible Employee who is required to
participate in the Plan pursuant to Section 4(a)(i)
hereof shall automatically be a Participant upon
designation by the Committee and without further action
by such Eligible Employee (except as otherwise provided
below in this Section 5). Such a Participant may elect
to increase his/her participation in the Plan, and an
Eligible Employee who is not required to participate in
the Plan may elect to become a Participant and to
participate in the Plan, (in each case as and to the
extent provided in Section 4(a)(ii) hereof) by
completing the form provided by the Company for such
purpose and filing it with the Plan Administrator (or
such other person as may be designated by the Company on
such form) prior to the applicable date set forth below.
Except as otherwise provided below, an election to
participate in the Plan pursuant to Section
4(a)(ii)(A)(I) hereof must be filed as provided above
not later than January 1 of the fiscal year of the
Company with respect to which the applicable cash bonus,
if any, is to be paid under the Cash Bonus Plan and, if
timely filed, shall apply with respect to the balance of
such fiscal year. Except as otherwise provided below,
an election to participate in the Plan pursuant to the
remaining provisions of Section 4(a)(ii) hereof shall
apply with respect to the six-month period next
commencing on January 1 or July 1, whichever first
occurs following the filing of such election (i.e., to
be effective for the period January through June, the
election must be filed after June 30 and on or before
December 31 of the preceding calendar year, and to be
effective for the period July through December the
election must be filed after December 31 of the
preceding calendar year and on or before June 30 of the
current year). Elections with respect to any applicable
period during which the Plan is initially adopted may be
filed as provided above within 30 days after the
adoption of the Plan and, if timely filed, shall be
effective with respect to the balance of such period
remaining after the filing of such election.
(b) Employees first becoming Eligible Employees
during an applicable period and Eligible Employees whose
status with respect to participation in the Cash Bonus
Plan changes during an applicable period (resulting in
a change in eligibility for elective participation in
the Plan under Section 4(a)(ii)) may file elections
within 30 days after (i) first becoming Eligible
Employees or (ii) the effective date of such change of
status, as the case may be, and, if timely filed, such
elections shall be effective with respect to the balance
of such period remaining after the filing of such
election (or, if shorter, the balance of the period
remaining after the termination of any previously filed
election as provided below). Participants may indicate
in their election forms that the election is to continue
in effect with respect to subsequent fiscal years or
six-month periods, as applicable, unless participation
levels are changed by the timely filing of a new
election or such Participant files with the Plan
Administrator (or the person with whom an election form
would be properly filed) a notice of withdrawal from
elective participation in the Plan. Notwithstanding the
immediately preceding sentence, except as provided in
the next sentence, a Participant may not withdraw from
participation in the Plan or change the level of
participation in the Plan with respect to a fiscal year
or six-month period, as the case may be, after June 30
of such fiscal year (in the case of a fiscal year) or
once such six-month period has commenced (in the case of
a six-month period), and no purported cancellation,
revocation or modification of the election by the
Participant shall be effective for such purpose. In the
case of an Eligible Employee whose eligibility for
participation under Section 4(a)(ii) changes as a result
of a change of status under the Cash Bonus Plan during
an applicable period, any election previously filed by
such Eligible Employee with respect to such period shall
terminate and be of no further effect, and the Effective
Period with respect to such election shall end, in each
case, as of the end of the month in which such change of
status occurs.
(c) Notwithstanding the provisions of Section
5(a) and 5(b) above, solely with respect to those
Eligible Employees who are required to file reports
under Section 16 of the Exchange Act, any election (and
any subsequent new election) made under Section 4(a)(ii)
hereof by such Eligible Employee shall apply with
respect to the six month period commencing on the
January 1 or July 1 which first occurs at least six
months after the filing of such election.
Section 6. Restricted Stock.
(a) The maximum number of shares of Stock which
may be issued under the Plan shall be not more than
500,000 shares of Stock, subject to adjustment as
provided in Section 8 hereof, and such shares may be
either previously issued shares reacquired by the
Company or authorized but previously unissued shares.
In the event shares of Restricted Stock are forfeited
prior to the end of the period during which the
restrictions on the Restricted Stock expire, the
forfeited shares of Restricted Stock will become
available for future issuance under the Plan.
(b) Each Participant who receives shares of
Restricted Stock hereunder may, but need not, be issued
a stock certificate in respect of such shares of
Restricted Stock. Each certificate, if any, issued to
a Participant shall be registered in the name of such
Participant and, during the applicable Restricted
Period, shall bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to
such shares of Restricted Stock, substantially in the
following form:
"The transferability of the
certificate and the shares of
stock represented hereby are
subject to the terms and
conditions (including
forfeiture) of the Birmingham
Steel Corporation Stock
Accumulation Plan. A copy of
such Plan is on file in the
offices of Birmingham Steel
Corporation, 1000 Urban Center
Drive, Suite 300, Birmingham,
Alabama 35242."
The Committee shall require that any stock
certificate issued in the name of a Participant
evidencing shares of Restricted Stock be held in the
custody of the Company until the restrictions thereon
shall have lapsed, and that, as a condition of the
issuance of a certificate for Restricted Stock, the
Participant shall have delivered to the Company a stock
power, endorsed in blank, relating to the shares covered
by such certificate.
In lieu of the issuance of a certificate for any
shares of Restricted Stock during the applicable
Restricted Period, a "book entry" (i.e., a computerized
or manual entry) may be made in the records of the
Company to evidence the ownership of such shares of
Restricted Stock in the name of the applicable
Participant. Such Company records shall, absent
manifest error, be binding on the Participants.
(c) The shares of Restricted Stock received by
a Participant under the Plan shall be subject to the
following restrictions and conditions:
(i) Subject to the provisions of the Plan,
during the Restricted Period applicable to shares
of Restricted Stock received hereunder, the
Participant shall not be permitted to sell,
transfer, pledge or assign such shares of
Restricted Stock. The Committee may, in its sole
discretion, (A) initially provide for an
alternative Restricted Period or alter the three-
year Restricted Period for previously issued
shares of Restricted Stock (provided that the
Committee may not extend the Restricted Period
for previously issued shares of Restricted Stock
without the Participant's written consent), (B)
during any extension of such Restricted Period,
provide for alternative restrictions (provided
that nothing contained in this clause shall grant
the Committee any additional powers under the
Plan with respect to shares of Restricted Stock
issued or to be issued to persons who are subject
to Section 16 of the Exchange Act), (C) provide
for the lapse of any such restrictions in
installments, and (D) in the event of Retirement
or of special hardship circumstances of a
Participant whose employment is involuntarily
terminated (other than for Cause), in
circumstances not covered by paragraph 6(d)(iv),
waive in whole or in part any or all remaining
restrictions with respect to shares of Restricted
Stock.
(ii) In the event of special hardship
circumstances (determined in the sole discretion
of the Committee) occurring while the Participant
is still employed, the Participant may be allowed
to surrender all or a portion of the
Participant's Restricted Stock, such portion to
be determined in the sole discretion of the
Committee, as to which restrictions still remain
in effect and to receive in cash, without
interest, for each such share surrendered an
amount equal to the applicable Computation Value
of the Stock originally used in determining the
number of such shares of Restricted Stock to be
issued to such Participant.
(iii) The Committee may, in its sole
discretion, waive or shorten the period during
which the Restricted Stock is subject to
forfeiture as provided in paragraph (d) of this
Section 6 below during any Restricted Period.
(iv) The Participant shall have the right
to vote or direct the vote of his or her shares
of Restricted Stock during the Restricted Period
and shall have the right to receive any regular
cash dividends on such shares of Restricted
Stock. Shares of Common Stock received as a
result of a stock dividend or stock split with
respect to Restricted Stock shall, during the
balance of the Restricted Period applicable to
such shares of Restricted Stock, be treated as
additional shares of Restricted Stock subject to
the same restrictions and limitations as the
shares of Restricted Stock with respect to which
such shares reflecting a stock dividend or stock
split were received. The Committee shall in its
sole discretion determine the Participant's
rights with respect to any other extraordinary
dividends on the shares of Restricted Stock.
(v) Certificates for shares of Restricted
Stock shall be delivered to the Participant
promptly after, and only after, the applicable
Restricted Period shall expire (or such earlier
time as the restrictions may lapse in accordance
with paragraph (c)(i) of this Section 6) without
forfeiture. If certificates evidencing such
shares of Restricted Stock were previously issued
bearing the legend set forth in Section 6(b)
hereof, such certificates shall be cancelled and
new certificates not bearing such legend shall be
issued for delivery to the Participant.
(d) Subject to the provisions of clauses (c)(i),
(c)(ii) and (c)(iii) of this Section 6, the following
provisions shall apply to a Participant's shares of
Restricted Stock prior to the end of the Restricted
Period (including extensions):
(i) Upon termination of a Participant's
employment with the Company or any Subsidiary or
Affiliate for Cause during the Restricted Period,
such Participant shall forfeit all Restricted
Stock, and shall be entitled to receive nothing
in lieu thereof, not even the amount by which the
Participant's right to receive compensation in
cash was reduced in connection with the receipt
of such forfeited Restricted Stock.
(ii) In the event a Participant
voluntarily terminates employment with the
Company or any Subsidiary or Affiliate and such
Participant within six months following such
termination is employed by, or agrees to be
employed by, any business in whatever form
conducted, whose business, in the sole
determination of the Committee, is competitive
with the business of the Company or any
Subsidiary or Affiliate of the Company, such
Participant shall forfeit all Restricted Stock,
and shall be entitled to receive nothing in lieu
thereof, not even the amount by which the
Participant's right to receive compensation in
cash was reduced in connection with the receipt
of such forfeited Restricted Stock.
(iii) In the event of the termination of
the Participant's employment with the Company or
any Subsidiary or Affiliate other than as
described in clauses (d)(i), (d)(ii) and (d)(iv)
of this Section 6, the Participant shall forfeit
all Restricted Stock and shall be entitled to
receive in lieu thereof in cash only the lesser
of either (A) the amount by which the
Participant's right to receive compensation in
cash was reduced in connection with the receipt
of such forfeited Restricted Stock, without
interest or (B) the Fair Market Value of the
forfeited Restricted Stock on the date of
forfeiture.
(iv) In the event of the termination of
the Participant's employment with the Company or
any Subsidiary or Affiliate as the result of the
death or Disability of such Participant, the
rights of such Participant in and to the shares
of Restricted Stock held by or for the account of
such Participant shall immediately vest and such
shares of Restricted Stock shall no longer be
subject to forfeiture hereunder.
For purposes of this paragraph (d) a Participant's
employment with the Company or any Subsidiary or
Affiliate shall be deemed not to have been terminated if
contemporaneously with such termination such Participant
is employed by another Subsidiary or Affiliate or by the
Company.
(e) In the event of (A) a Change of Control,
unless otherwise determined by the Committee or the
Board in writing after the receipt by a Participant of
Restricted Stock hereunder, but prior to the occurrence
of such Change of Control, or (B) a Potential Change of
Control, if and to the extent so determined by the
Committee or the Board in writing after the receipt by
a Participant of Restricted Stock hereunder:
(i) the restrictions applicable to
Restricted Stock issued pursuant to the Plan
shall lapse and such shares shall be deemed fully
vested and no longer subject to forfeiture; and
(ii) the value of all outstanding
Restricted Stock shall, to the extent determined
by the Committee, be cashed out on the basis of
the Change of Control Price as of the date the
Change of Control occurs or the Potential Change
of Control is deemed to have occurred, or such
other date as the Committee may determine prior
to the Change of Control or Potential Change of
Control.
Section 7. Administration.
The Plan shall be administered by the Committee
which shall have the power and authority to issue
Restricted Stock to Participants pursuant to the terms
of the Plan.
In particular, the Committee shall have the
authority:
(i) to select those employees of the
Company and its Subsidiaries and Affiliates who
are Eligible Employees;
(ii) to determine whether and to what
extent Restricted Stock is to be issued to
Participants hereunder pursuant to mandatory or
elective participation in the Plan;
(iii) to determine the number of shares of
Restricted Stock or portion of compensation
subject to mandatory or elective participation
hereunder; and
(iv) to determine the terms and
conditions, not inconsistent with the terms of
the Plan, of the issuance of any Restricted Stock
hereunder.
The Committee shall have the authority to adopt,
alter and repeal such administrative rules, guidelines
and practices governing the Plan, not inconsistent with
the Plan, as it shall, from time to time, deem
advisable; to interpret the terms and provisions of the
Plan; and to otherwise supervise the administration of
the Plan. All decisions made by the Committee pursuant
to the provisions of the Plan shall be final and binding
on all persons, including the Company and the
Participants. The Committee may act by a majority vote
at a regular or special meeting of the Committee or by
decision reduced to writing and signed by a majority of
the members of the Committee without holding a formal
meeting. Vacancies in the membership of the Committee
shall be filled by the Board of Directors.
The Committee may request that the management of
the Company appoint a "Plan Administrator" to carry out
the administrative and ministerial functions necessary
to implement the determinations, decisions and actions
of the Committee with respect to the Plan.
Section 8. Adjustments Upon a Change in Common Stock.
In the event of any change in the outstanding
Stock of the Company by reason of any stock split, stock
dividend, recapitalization, merger, consolidation,
reorganization, combination or exchange of shares or
other similar event and such change equitably requires
an adjustment in the number or kind of shares that may
be issued under the Plan pursuant to Section 6(b), such
adjustment shall be made by the Board and shall be
conclusive and binding for all purposes of the Plan.
Section 9. Amendment and Termination.
The Plan may be amended or terminated at any time
and from time to time by the Board, but no amendment
which increases the aggregate number of shares of Stock
which may be issued pursuant to the Plan (except as
provided in Section 8 hereof) shall be effective unless
and until the same is approved by the stockholders of
the Company. Neither an amendment to the Plan nor the
termination of the Plan shall adversely affect any right
of any Participant with respect to any Restricted Stock
theretofore received hereunder without such
Participant's written consent.
Section 10. Designation of Beneficiary.
A Participant may file a written designation of a
beneficiary who is to receive any shares of Restricted
Stock and/or cash to the Participant's credit under the
Plan in the event of such Participant's death prior to
delivery to him of such shares of Restricted Stock
and/or cash. Such designation of beneficiary may be
changed by the Participant at any time by written
notice. Upon the death of a Participant and upon
receipt by the Company of proof of the identity and
existence at the Participant's death of a beneficiary
validly designated by him under the Plan, the Company
shall deliver such shares of Restricted Stock and/or
cash to such beneficiary. In the event of the death of
a Participant and in the absence of a beneficiary
validly designated under the Plan who is living at the
time of such Participant's death, the Company shall
deliver such shares of Restricted Stock and/or cash to
the executor or administrator of the estate of the
Participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company) the
Company shall deliver such shares of Restricted Stock
and/or cash to the applicable court having jurisdiction
over the administration of such estate. No designated
beneficiary shall, prior to the death of the Participant
by whom he has been designated, acquire any interest in
the shares of Restricted Stock or cash credited to the
Participant under the Plan.
Section 11. General Provisions.
(a) The Committee may require each Eligible
Employee electing to participate in the Plan to
represent to and agree with the Company in writing that
such person is acquiring the shares of Stock subject to
the terms of the Plan and without a view to distribution
thereof.
All certificates for shares of Stock delivered
under the Plan shall be subject to such stock-transfer
orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other
requirements of the Commission, any stock exchange upon
which the Stock is then listed, and any applicable
Federal or state securities law, and the Committee may
cause a legend or legends to be put on any such
certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in the Plan shall prevent
the Board from adopting other or additional compensation
arrangements, subject to stockholder approval if such
approval is required; and such arrangements may be
either generally applicable or applicable only in
specific cases. Neither the adoption of the Plan by the
Company nor the participation in the Plan by any
employee shall confer upon any employee of the Company
or any Subsidiary or Affiliate any right to continued
employment with the Company or a Subsidiary or
Affiliate, as the case may be, or interfere in any way
with the right of the Company or a Subsidiary or
Affiliate to terminate the employment of any of its
employees at any time.
(c) No member of the Board or the Committee, nor
any officer or employee of the Company acting on behalf
of the Board or the Committee, shall be personally
liable for any action, determination, or interpretation
taken or made in good faith with respect to the Plan,
and all members of the Board or the Committee and each
and any officer or employee of the Company or any
Subsidiary or Affiliate acting on their behalf shall, to
the extent permitted by law, be fully indemnified and
protected by the Company in respect of any such action,
determination or interpretation.
(d) A Participant's rights and interest under
the Plan may not be assigned or transferred 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.
(e) The Company and its Subsidiaries and
Affiliates shall have the right to deduct from any
payment made under the Plan any federal, state or local
income or other taxes required by law to be withheld
with respect to such payment. It shall be a condition
to the obligation of the Company to issue Stock upon the
lapse of restrictions on Restricted Stock that the
Participant (or any beneficiary) pay to the Company,
upon its demand, such amount as may be requested by the
Company for the purpose of satisfying any liability to
withhold federal, state or local income or other taxes.
If the amount requested is not paid, the Company may
refuse to issue shares.
(f) All notices or other communications by a
Participant to the Company under or in connection with
the Plan shall be deemed to have been duly given when
received by the Treasurer of the Company or when
received in the form specified by the Company at the
location, or by the person, designated by the Company
for the receipt thereof.
Section 12. Effective Date of Plan.
The Plan shall be effective as of April 1, 1995,
and was adopted by the Board on August 21, 1995.
EXHIBIT 5.1
Helen T. Ferraro
404/264-2631
November 6, 1995
Board of Directors
Birmingham Steel Corporation
1000 Urban Center Drive
Suite 300
Birmingham, AL 35242-2516
RE: Birmingham Steel Corporation
Registration Statement on Form S-8
500,000 Shares of Common Stock, $.01 par
value 1995 Stock Accumulation Plan
Gentlemen:
We have acted as counsel for Birmingham Steel
Corporation (the "Company") in connection with the
registration of 500,000 shares of its Common Stock, $.01
par value per share (the "Shares"), reserved to the
Company's 1995 Stock Accumulation Plan (the "Plan"),
pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the
Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended, covering the Shares.
In connection therewith, we have examined the
following:
(1) The Articles of Incorporation of the
Company;
(2) The Bylaws of the Company, as amended,
certified as complete and correct by the
Secretary of the Company;
(3) The minute book of the Company, certified
as correct and complete by the Secretary of
the Company;
(4) Certificate of Good Standing with respect
to the Company, issued by the Department of
State of the State of Delaware; and
(5) The Registration Statement, including all
exhibits thereto.
Based upon such examination and upon examination
of such other instruments and records as we have deemed
necessary, we are of the opinion that:
(A) The Company has been duly incorporated
under the laws of the State of Delaware and
is validly existing and in good standing
under the laws of that state.
(B) The Shares covered by the Registration
Statement have been legally authorized and
when issued in accordance with the terms
described in said Registration Statement,
will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an
exhibit to the aforementioned Registration Statement on
Form S-8 and to the reference to this firm under the
caption "Legal Matters" in the Prospectus. In giving
this consent, we do not thereby admit that we come
within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, or the
rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
SMITH, GAMBRELL & RUSSELL
Helen T. Ferraro
HTF:tlj[49478]
Exhibit 24.1
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm in the
Registration Statement (Form S-8, No. 33- )
pertaining to the 1995 Stock Accumulation Plan and to
the incorporation by reference therein of our report
dated August 4, 1995, with respect to the consolidated
financial statements and schedule of Birmingham Steel
Corporation incorporated by reference in its Annual
Report (Form 10-K) for the year ended June 30, 1995,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
- ---------------------
Ernst & Young LLP
Birmingham, Alabama
November 6, 1995
