As filed with the Securities and Exchange Commission on November 27, 1996.
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIRMINGHAM STEEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of other jurisdiction
of Incorporation or organization)
13-3213634
(I.R.S. Employer
Identification No.)
1000 Urban Center Drive
Suite 300
Birmingham, Alabama 35242-2516
(205) 970-1200
(Address, including zip code and telephone number,
including area code, of registrant's principal
executive offices)
------------------
John M. Casey
Executive Vice President--Finance
and Chief Financial Officer
Birmingham Steel Corporation
1000 Urban Center Drive
Suite 300
Birmingham, Alabama 35242-2516
(205) 970-1200
(Address, including zip code and telephone number, including
area code, of agent for service)
Copies to:
Gregory S. Curran
Balch & Bingham
Post Office Box 306
Birmingham, Alabama 35201
(205)251-8100
Charles I. Weissman
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022-9998
(212)758-9500
Approximate date of commencement of proposed sale to
the public: As soon as practicable after the effective date of
this Registration Statement.
If the only securities being registered on the Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. ( )
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. ( )
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ( )
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ( )
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. ( )
<TABLE>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
==============================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to be Aggregate Offering Aggregate Offering Registration
Securities to be Registered Registered Price per Share (1) Price (1) Fee
- --------------------------------------------------------------------------------------------------------------
Common Stock ($.01 par value)..... 1,000,000 $16.50 $16,500,000 $5,689.66
shares
==============================================================================================================
<FN>
(1) Estimated pursuant to Rule 457 solely for determining the registration
fee and based upon the average of the high and low sales price for such
Common Stock on November 22, 1996, as reported on the New York Stock
Exchange.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION -- DATED DECEMBER __, 1996
1,000,000 Shares
BIRMINGHAM STEEL CORPORATION
Common Stock
----------------------
This Prospectus relates to 1,000,000 shares (the "Shares") of Common
Stock, par value $.01 per share (the "Common Stock") being offered by Birmingham
Steel Corporation, a Delaware corporation (the "Company").
The Common Stock is listed on the New York Stock Exchange (the "NYSE")
under the symbol "BIR."
On December __, 1996, the last reported sale price of the Common Stock as
reported on the NYSE was $_____ per share.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
================================================================================
Price Underwriting Proceeds
to Discounts and to
Public Commissions(1) Company(2)
- --------------------------------------------------------------------------------
Per Share ......... $ $ $
- --------------------------------------------------------------------------------
Total ............. $ $ $
================================================================================
(1) See "Underwriting."
(2) Before deducting expenses estimated at $__________, which are
payable by the Company.
----------------------
The shares of Common Stock are offered by the Underwriter, subject to
prior sale, when, as and if delivered to and accepted by the Underwriter, and
subject to its right to reject orders in whole or in part. It is expected that
delivery of the Common Stock will be made in New York, New York, on or about
December __, 1996.
----------------------
PaineWebber Incorporated
----------------------
The date of this Prospectus is December __,
1996.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED,
MAY BE DISCONTINUED AT ANY TIME.
----------------------
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Statements contained or incorporated in this Prospectus which are not
purely historical or which might be considered an opinion or projection
concerning the Company or its business, whether express or implied, are
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements include, without limitation,
statements expressing the Company's expectations, hopes, anticipations,
intentions, plans or strategies regarding the future. All forward-looking
statements included or incorporated in this Prospectus are based upon
information available to the Company on the date hereof, and the Company assumes
no obligation to update any such forward-looking statements. It is important to
note that the Company's actual results could differ materially from those
described or implied in such forward-looking statements. Among the factors that
could cause actual results to differ materially are the factors described in the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996, under the caption "Risk Factors That May Affect Operating Results," which
report is incorporated herein by reference. Consideration should also be given
to the risks and qualifications described from time to time in the Company's
reports on Forms 10-Q, 8-K, 10-K, and Annual Report to Stockholders.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549; and at the Commission's regional offices at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The shares of the Company's Common Stock are listed on the New
York Stock Exchange Inc. ("NYSE"). Reports, proxy statements and other
information concerning the Company can also be inspected at the offices of the
NYSE, 20 Broad Street, New York, New York 10005. In addition, the Commission
maintains a site on the World Wide Web at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding the
Company and other registrants that file electronically with the Commission.
This Prospectus, which constitutes a part of a registration statement
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended, omits certain of the information set
forth in the Registration Statement. Reference is hereby made to the
Registration Statement and to the exhibits thereto for further information with
respect to the Company and the securities offered hereby. Statements contained
herein concerning the provisions of such documents are necessarily summaries of
such documents, and each statement is qualified in its entirety by reference to
the copy of the applicable document filed with the Commission. Copies of the
Registration Statement and the exhibits thereto are on file at the offices of
the Commission and may be obtained upon payment of the prescribed fee or may be
examined without charge at the public reference facilities of the Commission
described above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference: (i) the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1996, (ii) the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996, (iii) the Company's Current
Report on Form 8-K, dated December __, 1996, and (iv) the description of the
Company's Common Stock contained in the Company's Registration Statement on Form
8-A as filed with the Commission on January 22, 1988.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof. Any
statement contained in a document incorporated or deemed to be incorporated by
reference hereto shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered upon the written or oral request of any such person, a
copy of any of the above documents (excluding exhibits to such documents, unless
such exhibits are specifically incorporated by reference therein). Such requests
should be directed to Catherine W. Pecher, Vice President and Secretary,
Birmingham Steel Corporation, 1000 Urban Center Drive, Suite 300, Birmingham,
Alabama 35242-2516 (telephone (205) 970-1200).
THE COMPANY
Birmingham Steel Corporation (the "Company") is a manufacturer of
commodity grade steel products and high quality rod, bar and wire products. The
Company operates four non-union mini-mills located across the United States that
produce primarily steel reinforcing bar ("rebar") and merchant products on a
low-cost basis. The Company also specializes in manufacturing high quality steel
rod, bar and wire products from semi-finished billets at its American Steel and
Wire ("ASW") subsidiary. The Company, through its rebar/merchant facilities,
produces carbon steel rebar products sold primarily to independent fabricators
for use in the construction industry, and merchant products which include
rounds, flats, squares, strip, angles and channel which are sold to fabricators,
steel service centers and original equipment manufacturers for use in general
industrial applications. The Company's principal executive offices are located
at 1000 Urban Center Drive, Suite 300, Birmingham, Alabama, and its telephone
number is (205)970-1200.
USE OF PROCEEDS
The Company will use all of the proceeds from the sale of the Shares to
finance certain payments made by it under that certain Contribution Agreement
(the "Contribution Agreement"), dated as of November 15, 1996, among IVACO,
Inc., a Canadian corporation ("IVACO"), Atlantic Steel Industries, Inc., a New
York corporation ("Atlantic"), the Company and Birmingham Southeast, LLC, a
Delaware limited liability company ("Birmingham Southeast"), pursuant to which
the Company and Atlantic formed Birmingham Southeast to own and operate a steel
making facility located in Jackson, Mississippi, formerly owned by the Company,
and a steel making facility located in Cartersville, Georgia, formerly owned by
Atlantic, a subsidiary of IVACO. See "The Transaction."
THE TRANSACTION
The transactions contemplated by the Contribution Agreement (the
"Transaction") were completed on December __, 1996. In the Transaction, the
Company contributed to Birmingham Southeast substantially all of the operating
assets, consisting primarily of real property, of a steel making facility
located in Jackson, Mississippi and $43.3 million in cash, in exchange for 85%
of the membership interest in Birmingham Southeast, and Atlantic contributed
substantially all of the operating assets, consisting primarily of real
property, of a steel making facility located in Cartersville, Georgia, in
exchange for 15% of the membership interest in Birmingham Southeast and $43.3
million in cash.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 75,000,000
shares of Common Stock, par value $.01 per share, and 5,000,000 shares of
Preferred Stock, par value $.01 per share. The following description of the
capital stock is qualified in all respects by reference to the Restated
Certificate of Incorporation, as amended, and By-laws, as amended, of the
Company, copies of which are on file at the Company's principal executive
offices.
Common Stock
The holders of Common Stock, subject to such rights as may be granted
to the holders of Preferred Stock, elect all directors and are entitled to one
vote per share. All shares of Common Stock participate equally in dividends
when, as and if declared by the Board of Directors and share ratably, subject to
the rights and preferences of any Preferred Stock, in net assets on liquidation.
Shares prior to this offering are and shares to be outstanding upon completion
of this offering will be duly authorized, validly issued, fully paid and
nonassessable by the Company upon issuance. The shares of Common Stock have no
preference, conversion, exchange, preemptive or cumulative voting rights.
Preferred Stock
The Company is authorized to issue 5,000,000 shares of Preferred Stock,
par value $.01 per share, none of which is outstanding. Preferred Stock may be
issued from time to time by the Board of Directors of the Company, without
stockholder approval, in such series and with such preferences, conversion,
redemption or other rights, voting powers, rights and preferences upon
liquidation, restrictions, limitations as to dividends, qualifications or other
provisions, as may be fixed by the Board of Directors in the resolution
authorizing the issuance. The issuance of Preferred Stock by the Board of
Directors could adversely affect the rights of holders of shares of Common
Stock; for example, the issuance of Preferred Stock could result in a class of
securities outstanding that would have certain preferences with respect to
dividends and in liquidation over the Common Stock, and that might enjoy certain
voting rights, contingent or otherwise, in addition to those of the Common
Stock, and that could result in a dilution of the voting rights, net income per
share and net book value of the Common Stock.
Rights Agreement
On January 16, 1996, the Board of Directors of the Company declared a
dividend of one preferred share purchase right (a "Right") for each outstanding
share of Common Stock. Each Right entitles the registered holder to purchase
from the Company one one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Preferred Stock"), of the
Company at a price of $74 per one one-hundredth of a share of Preferred Stock,
subject to adjustment. The description and terms of the Rights are set forth in
a Rights Agreement dated as of January 16, 1996, as the same may be amended from
time to time, between the Company and First Union National Bank of North
Carolina, as Rights Agent.
The Rights are exercisable only after a person (other than the Company
or its employee benefit plans), together with all persons acting in concert with
it, has acquired 10% or more of the Common Stock, or has commenced a tender
offer for 10% or more of the Common Stock. If the Company engages in certain
business combinations or a 10% shareholder engages in certain transactions with
the Company, the Rights become exercisable for the Common Stock or common stock
of the corporation acquiring the Company (as the case may be) at 50% of the then
market price. Any Rights that are or were beneficially owned by a person who has
acquired 10% or more of the Common Stock and who engages in certain transactions
or realizes the benefits of certain transaction with the Company will become
void. The Company may redeem the Rights at a specified price at any time until
ten business days after public announcement that a person has acquired 10% or
more of the outstanding shares of Common Stock. The Rights will expire on
January 16, 2006, unless earlier redeemed by the Company. Unless the Rights have
been previously redeemed, all shares of Common Stock issued by the Company will
include Rights, including the Common Stock offered hereby.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. However, the
Rights should not interfere with any merger or other business combination
approved by the Board of Directors since (subject to the limitations described
above) the Rights may be redeemed by the Company at the Redemption Price prior
to the Distribution Date. Thus, the Rights are intended to encourage persons who
may seek to acquire control of the Company to initiate such an acquisition
through negotiations with the Board of Directors.
Certain Provisions of the By-laws
The By-laws provide that special meetings of stockholders may be called
by the chairman or by a majority of the Board of Directors. The By-laws also
establish an advance notice procedure for the nomination, other than by or at
the direction of the Board of Directors, of candidates for election as directors
as well as for other stockholder proposals to be considered at annual meetings
or special meetings of stockholders. In general, notice of intent to nominate a
director or of other stockholder proposals must be received by the secretary of
the Company not less than 60 nor more than 90 days prior to the date of the
first anniversary of the preceding year's annual meeting, and must contain
certain specified information concerning the person to be nominated. There are
similar notice requirements for special meetings of stockholders. The existence
of these provisions in the Company's By-laws may have the effect of discouraging
a change in control of the Company and limiting shareholder participation in
certain transactions or circumstances by limiting shareholders' participation to
annual and special meetings of shareholders and making such participation
contingent upon adherence to certain prescribed procedures.
Delaware Anti-Takeover Law
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law (the "Anti-Takeover Law") regulating corporate
takeovers. The Anti-Takeover Law prevents certain Delaware corporations,
including those whose securities are listed on the New York Stock Exchange, from
engaging, under certain circumstances, in a "business combination" (which
includes a merger or sale of more than 10% of the corporation's assets) with any
"interested stockholder" (a stockholder who acquired 15% or more of a
corporation's outstanding voting stock without the prior approval of the
corporation's board of directors) for three years following the date that such
stockholder became an "interested stockholder." The current stockholders of the
Company may not, by virtue of their current holdings, be deemed to be
"interested stockholders" under this statute. A Delaware corporation may "opt
out" of the Anti-Takeover Law with an express provision in its original
certificate of incorporation or an express provision in its certificate of
incorporation or by-laws resulting from a stockholders' amendment approved by at
least a majority of the outstanding voting shares. The Company has not "opted
out" of the provisions of the Anti-Takeover Law.
Registrar and Transfer Agent
The Company's registrar and transfer agent is First Union National Bank
of North Carolina, Charlotte, North Carolina.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement
between the Company and PaineWebber Incorporated (the "Underwriter"), the
Underwriter has agreed to purchase from the Company all of the shares of Common
Stock offered hereby.
The Underwriting Agreement provides that the obligations of the
Underwriter thereunder are subject to approval of certain legal matters by
counsel for the Company and to various other conditions. The nature of the
Underwriter's obligations is such that, if any of the foregoing shares of Common
Stock are purchased by the Underwriter, all such shares must be so purchased. A
copy of the form of Underwriting Agreement is an exhibit to the Registration
Statement of which this Prospectus is a part.
The Company has been advised that the Underwriter proposes to offer the
shares of Common Stock to the public initially at the public offering price set
forth on the cover page of this Prospectus and to certain selected dealers at
such public offering price less a concession not in excess of $_____ per share.
The Underwriter may allow, and the selected dealers may re-allow, a concession,
not in excess of $____ a share, to certain other dealers. After the initial
offering to the public, the offering price and other selling terms may be
changed.
The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribute to payments that the Underwriter may be required to make in
respect thereof.
LEGAL MATTERS
Certain legal matters with respect to the legality of the shares of
Common Stock offered will be passed upon for the Company by Balch & Bingham,
Birmingham, Alabama. Certain legal matters in connection with this offering are
being passed upon for the Underwriters by Shereff, Friedman, Hoffman & Goodman,
LLP, New York, New York.
EXPERTS
The consolidated financial statements (and schedule) of the Company
appearing in the Company's Annual Report (Form 10-K) for the year ended June 30,
1996, have been audited by Ernst & Young, L.L.P., independent auditors, as set
forth in their reports thereon included and incorporated herein by reference.
Such consolidated financial statements and schedule are incorporated by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
No person has been authorized to give any information or to make any
representations in connection with this offering other than those contained in
this Prospectus, and, if given or made, such other information and
representations must not be relied upon as having been authorized by the Company
or the Underwriter. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there has
been no change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the registered securities to which it
relates. This Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy such securities in any circumstances in which such offer or
solicitation is unlawful.
--------------------
TABLE OF CONTENTS
Page
Special Note Regarding Forward-
Looking Statements...................................................2
Available Information.........................................................2
Incorporation of Certain Information
by Reference.........................................................3
The Company...................................................................3
Use of Proceeds...............................................................3
The Transaction...............................................................4
Description of Capital Stock..................................................4
Underwriting..................................................................6
Legal Matters.................................................................6
Experts.......................................................................6
1,000,000 Shares
BIRMINGHAM STEEL
CORPORATION
Common Stock
----------
PROSPECTUS
----------
PaineWebber Incorporated
----------
December __, 1996
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
SEC Registration Fee $5,689.66
NASD Fee 2,150.00
New York Stock Exchange Listing Fee 14,750.00
Printing and Engraving Expenses 1,500.00
Accounting Fees and Expenses 30,000.00
Legal Fees and Expenses 15,000.00
Blue Sky Fees and Expenses 1,000.00
Miscellaneous Expenses 1,000.00
---------
$71,089.66
Each of the amounts set forth above, other than the Registration Fee, the NASD
Fee, and the New York Stock Exchange Listing Fee, is an estimate.
Item 15. Indemnification of Directors and Officers
The Company is a Delaware corporation. Section 145 of the
Delaware General Corporation Law the "DGCL") empowers a Delaware corporation to
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 such corporation) by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. A corporation may indemnify such person
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 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. A corporation may, in
advance of the final disposition of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the expenses (including attorneys'
fees) incurred by any officer or director in defending such action, provided
that the director of officer undertakes to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation.
A Delaware corporation may indemnify officers and directors in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to
the corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses (including attorneys' fees) which he actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's bylaws, agreement, vote or otherwise.
The Company's By-Laws provide for indemnification of directors
and officers of the Company to the fullest extent permitted by Delaware law.
The Company has purchased directors' and officers' liability
insurance covering certain liabilities incurred by its officers and directors in
connection with the performance of their duties.
While the Company's By-laws provide officers and directors
with protection from awards for monetary damage for breaches of their duty of
care, they do not eliminate such duty. Accordingly, the By-laws will have no
effect on the availability of equitable remedies such as an injunction or
rescission based on an officer's or a director's breach of his or her duty of
care.
<PAGE>
Item 16. Exhibits
Exhibit
Number Description
1.1 Form of Underwriting Agreement
5.1 Opinion of Balch & Bingham regarding legality of the Shares
23.1 Consent of Balch & Bingham (included in the opinion filed as Exhibit
5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney
Item 17. Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made of the securities registered hereby, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of this
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 this Registration
Statement;
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in this Registration Statement
or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in
paragraphs (i) and (ii) above do 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
Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered herein, 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act 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 the public policy as
expressed in the Securities 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
Securities Act and will be governed by the final adjudication of such issue.
<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-3 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 November 27, 1996.
BIRMINGHAM STEEL CORPORATION
By: /s/ John M. Casey
John M. Casey
Its: Executive Vice President
-Finance and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
*
----------------------
E. Mandell de Windt Chairman--Executive Committee, November 27, 1996
Director
*
-----------------------
Robert A. Garvey Chairman of the Board, Chief November 27, 1996
Executive Officer, Director
*
------------------------
Harry Holiday, Jr. Director November 27, 1996
*
-------------------------
C. Stephen Clegg Director November 27, 1996
*
--------------------------
George A. Stinson Director November 27, 1996
*
--------------------------
E. Bradley Jones Director November 27, 1996
*
--------------------------
Reginald H. Jones Director November 27, 1996
*
--------------------------
T. Evans Wyckoff Director November 27, 1996
*
--------------------------
William J. Cabaniss, Jr. Director November 27, 1996
*
--------------------------
Robert D. Kennedy Director November 27, 1996
/s/Robert E. Powell
--------------------------
Robert E. Powell Vice President-Controller November 27, 1996
/s/John M. Casey
---------------------------
John M. Casey Executive Vice President-Finance
& Chief Financial Officer November 27, 1996
*By /s/ John M. Casey
-----------------------
John M. Casey
Attorney-in-Fact
<PAGE>
Exhibit 1.1
1,000,000 Shares
BIRMINGHAM STEEL CORPORATION
Common Stock
UNDERWRITING AGREEMENT
______________, 1996
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Birmingham Steel Corporation, a Delaware corporation (the
"Company"), proposes to sell an aggregate of 1,000,000 shares (the "Shares") of
the Company's Common Stock, $.01 par value per share (the "Common Stock"), to
PaineWebber Incorporated (being referred to herein as "you" or the
"Underwriter").
The initial public offering price per share for the Shares and
the purchase price per share for the Shares to be paid by you shall be agreed
upon by the Company and you, and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication among the
Company and you and shall specify such applicable information as is indicated in
Exhibit A hereto. The offering of the Shares will be governed by this Agreement,
as supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and, unless the context otherwise indicates, all
references contained herein to "this Agreement" and to the phrase "herein" shall
be deemed to include the Price Determination Agreement.
The Company confirms its agreement with you as follows.
1. Agreement to Sell and Purchase.
(a) On the basis of the respective representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, the Shares, at the purchase
price per share for the Shares to be agreed upon by the Underwriter and the
Company in accordance with Section l(b) and set forth in the Price Determination
Agreement.
(b) The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the Underwriter shall be
agreed upon and set forth in the Price Determination Agreement. In the event
such price has not been agreed upon and the Price Determination Agreement has
not been executed by the close of business on the fifth business day following
the date on which the Registration Statement becomes effective, this Agreement
shall terminate forthwith, without liability of any party to any other party
except that Section 4(j), Section 4(k) and Section 6 shall remain in effect.
2. Delivery and Payment. Delivery of the Shares shall be made to the
Underwriter against payment of the purchase price by wire transfer or Federal
Reserve Funds check(s) to the account or accounts designated by the Company at
the office of PaineWebber Incorporated, 1285 Avenue of the Americas, New York,
New York 10019. Such payment shall be made at 10:00 a.m., New York City time, on
the third business day after the date on which the first bona fide offering of
the Shares to the public is made by the Underwriter or at such time on such
other date, not later than ten business days after such date, as may be agreed
upon by the Company and the Underwriter (such date is hereinafter referred to as
the "Closing Date").
Certificates evidencing the Shares shall be in definitive form
and shall be registered in such names and in such denominations as the
Underwriter shall request at least two business days prior to the Closing Date
by written notice to the Company. For the purpose of expediting the checking and
packaging of certificates for the Shares, the Company agrees to make such
certificates available for inspection at least 24 hours prior to the Closing
Date.
The cost of original issue tax stamps, if any, in connection
with the issuance and delivery of the Shares by the Company to the Underwriter
shall be borne by the Company. The Company will pay and save the Underwriter and
any subsequent holder of the Shares harmless from any and all liabilities with
respect to or resulting from any failure or delay in paying Federal and state
stamp and other transfer taxes, if any, which may be payable or determined to be
payable in connection with the original issuance or sale to the Underwriter of
the Shares.
3. Representations and Warranties of the Company. The Company
represents, warrants and covenants to the Underwriter that:
(a) The Company meets the requirements for use of Form S-3, and a
registration statement (Registration No. 333-_______) on Form S-3 relating to
the Shares, including a preliminary prospectus and such amendments to such
registration statement as may have been required to the date of this Agreement,
has been prepared by the Company under the provisions of the Securities Act of
1933, as amended (the "Act"), and the rules and regulations (collectively
referred to as the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with the
Commission. The term "preliminary prospectus" as used herein means a preliminary
prospectus as contemplated by Rule 430 or Rule 430A ("Rule 430A") of the Rules
and Regulations included at any time as part of the registration statement.
Copies of such registration statement and amendments and of each related
preliminary prospectus have been delivered to the Underwriter. The term
"Registration Statement" means the registration statement as amended at the time
it becomes or became effective (the "Effective Date"), including financial
statements and all exhibits and any information deemed to be included by Rule
430A or Rule 434 of the Rules and Regulations. If the Company files a
registration statement to register a portion of the Shares and relies on Rule
462(b) of the Rules and Regulations for such registration statement to become
effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to the "Registration Statement" shall be deemed
to include the Rule 462 Registration Statement, as amended from time to time.
The term "Prospectus" means the prospectus as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the Effective Date. Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date or the date of such preliminary
prospectus or the Prospectus, as the case may be. Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
Effective Date, or the date of any preliminary prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus is first filed with the
Commission pursuant to Rule 424(b) (if required), at all times subsequent to and
including the Closing Date and when any post-effective amendment to the
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, the Registration Statement and the
Prospectus (as amended or as supplemented if the Company shall have filed with
the Commission any amendment or supplement thereto), including the financial
statements included or incorporated by reference in the Prospectus, did or will
comply with all applicable provisions of the Act, the Exchange Act, the rules
and regulations thereunder (the "Exchange Act Rules and Regulations") and the
Rules and Regulations and will contain all statements required to be stated
therein in accordance with the Act, the Exchange Act, the Exchange Act Rules and
Regulations and the Rules and Regulations. On the Effective Date and when any
post-effective amendment to the Registration Statement becomes effective, no
part of the Registration Statement or any such amendment did or will contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date, the Prospectus did not or will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The foregoing representations and warranties in this Section 3(b) do
not apply to any statements or omissions made in reliance on and in conformity
with information relating to the Underwriter furnished in writing to the Company
by the Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. For all purposes of this
Agreement, the amounts of the selling concession set forth in the Prospectus
constitute the only information relating to the Underwriter furnished in writing
to the Company by the Underwriter specifically for inclusion in the preliminary
prospectus, the Registration Statement or the Prospectus. The Company has not
distributed any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the preliminary prospectus, the
Prospectus or any other materials, if any, permitted by the Act.
(c) The documents which are incorporated by reference in the preliminary
prospectus and the Prospectus or from which information is so incorporated by
reference, when they become effective or were filed with the Commission, as the
case may be, complied in all respects with the requirements of the Act or the
Exchange Act, as applicable, the Exchange Act Rules and Regulations and the
Rules and Regulations; and any documents so filed and incorporated by reference
subsequent to the Effective Date shall, when they are filed with the Commission,
conform in all respects with the requirements of the Act and the Exchange Act,
as applicable, the Exchange Act Rules and Regulations and the Rules and
Regulations.
(d) The only subsidiaries (as defined in the Rules and Regulations) of
the Company are the subsidiaries listed on Exhibit B hereto (the
"Subsidiaries"). The Company and each of its Subsidiaries is, and at the Closing
Date will be, a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The Company and
each of its Subsidiaries has, and at the Closing Date will have, full power and
authority to conduct all the activities conducted by it, to own or lease all the
assets owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. The Company and each of its
Subsidiaries is, and at the Closing Date will be, duly licensed or qualified to
do business and in good standing as a foreign corporation in all jurisdictions
in which the nature of the activities conducted by it or the character of the
assets owned or leased by it makes such licensing or qualification necessary.
All of the outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued, and are fully paid and non-assessable and
are owned by the Company free and clear of all liens, encumbrances and claims
whatsoever. Except for the stock of the Subsidiaries and as disclosed in the
Registration Statement, the Company does not own, and at the Closing Date will
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity. Complete and
correct copies of the certificate of incorporation and of the by-laws of the
Company and each of its Subsidiaries and all amendments thereto have been
delivered to the Underwriter, and no changes therein will be made subsequent to
the date hereof and prior to the Closing Date.
(e) The outstanding shares of Common Stock have been, and the Shares to
be issued and sold by the Company upon such issuance will be, duly authorized,
validly issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right. The description of the Common Stock in the
Registration Statement and the Prospectus is, and at the Closing Date will be,
complete and accurate in all respects. Except as set forth in the Prospectus,
the Company does not have outstanding, and at the Closing Date will not have
outstanding, any options to purchase, or any rights or warrants to subscribe
for, or any securities or obligations convertible into, or any contracts or
commitments to issue or sell, any shares of Common Stock, any shares of capital
stock of any Subsidiary or any such warrants, convertible securities or
obligations.
(f) The financial statements and schedules included or incorporated by
reference in the Registration Statement or the Prospectus present fairly the
consolidated financial condition of the Company as of the respective dates
thereof and the consolidated results of operations and cash flows of the Company
for the respective periods covered thereby, all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise disclosed in the Prospectus. No
other financial statements or schedules of the Company are required by the Act,
the Exchange Act or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. Ernst & Young LLP (the "Accountants"), who have
reported on such financial statements and schedules, are independent accountants
with respect to the Company as required by the Act and the Rules and
Regulations. The statements, if any, included in the Registration Statement with
respect to the Accountants pursuant to Rule 509 of Regulation S-K of the Rules
and Regulations are true and correct in all material respects.
(g) The Company maintains a system of internal accounting control
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(h) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus and prior to the Closing Date,
except as set forth in or contemplated by the Registration Statement and the
Prospectus, (i) there has not been and will not have been any change in the
capitalization of the Company, or in the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, arising for any reason whatsoever, (ii) neither
the Company nor any of its Subsidiaries has incurred nor will it incur any
material liabilities or obligations, direct or contingent, nor has it entered
into nor will it enter into any material transactions other than pursuant to
this Agreement and the transactions referred to herein and (iii) the Company has
not and will not have paid or declared any dividends or other distributions of
any kind on any class of its capital stock.
(i) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
(j) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or threatened
against or affecting the Company or any of its Subsidiaries or any of their
respective officers in their capacity as such, before or by any Federal or state
court, commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, (A) which questions the validity of the capital stock
of the Company, this Agreement or any action taken or to be taken by the Company
pursuant to or in connection with this Agreement, (B) which is required to be
disclosed in the Registration Statement and the Prospectus which is not so
disclosed or (C) wherein an unfavorable ruling, decision or finding might
materially and adversely affect the Company or any of its Subsidiaries or its
business, properties, business prospects, condition (financial or otherwise) or
results of operations (a "Material Adverse Effect"). Neither the Company nor any
Subsidiary have received any notice of proceedings relating to the revocation or
modification of any authorization, approval, order, license, certificate,
franchise or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect.
There are no pending investigations known to the Company involving the Company,
or any of its officers or directors in their capacities as such, by any
governmental agency having jurisdiction over the Company or its business or
operations or such persons. The disclosures in the Registration Statement
concerning the effects of Federal, state, local and foreign laws, rules and
regulations on the Company's business as currently conducted and as proposed to
be conducted are correct in all material respects and do not omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances under which they were
made.
(k) The Company and each of its Subsidiaries has, and at the Closing
Date will have, (i) all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its business as
contemplated in the Prospectus, (ii) complied in all respects with all laws,
regulations and orders applicable to it or its business and (iii) performed all
its obligations required to be performed by it, and is not, and at the Closing
Date will not be, in default, under any material indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, bond, debenture, note agreement,
lease, contract or other agreement or instrument (collectively, a "contract or
other agreement") to which it is a party or by which its property is bound or
affected. To the best knowledge of the Company and each of its Subsidiaries, no
other party under any contract or other agreement to which it is a party is in
default in any respect thereunder. Neither the Company nor any of its
Subsidiaries is, nor at the Closing Date will any of them be, in violation of
any provision of its certificate of incorporation or by-laws.
(l) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of this Agreement by the Company or in connection with the taking by
the Company of any action contemplated hereby, except such as have been obtained
under the Act or the Rules and Regulations and such as may be required under
state securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution by the Underwriter of the Shares.
(m) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company and
is enforceable against the Company in accordance with the terms hereof. The
performance of this Agreement and the consummation of the transactions
contemplated hereby and the application of the net proceeds from the offering
and sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds" will not result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of the Company or any
of its Subsidiaries pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or give any other party a right to terminate any of its
obligations under, or result in the acceleration of any obligation under, the
certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, any contract or other agreement to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries or
any of its properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or properties of
the Company or any of its Subsidiaries.
(n) The Company and each of its Subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except such
as are described in the Prospectus or are not material to the business of the
Company or its Subsidiaries. The Company and each of its Subsidiaries has valid,
subsisting and enforceable leases for the properties described in the Prospectus
as leased by it, with such exceptions as are not material and do not materially
interfere with the use made and proposed to be made of such properties by the
Company and such Subsidiaries.
(o) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such documents and contracts to which the Company or any
Subsidiary is a party have been duly authorized, executed and delivered by the
Company or such Subsidiary, constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof.
(p) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
this Agreement to be delivered to the Underwriter was or will be, when made,
inaccurate, untrue or incorrect.
(q) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(r) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(s) The Shares are duly authorized for listing, subject to official notice
of issuance, on the New York Stock Exchange.
(t) Neither the Company nor any of its Subsidiaries is involved in any
material labor dispute nor, to the knowledge of the Company, is any such dispute
threatened.
(u) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, all patents, patent applications, material
trademarks and trade names and other intellectual property (collectively, the
"Intellectual Property") which are used in or necessary for the conduct of their
respective businesses as described in the Prospectus. To the Company's
knowledge, no claims have been asserted by any person to the use of any such
Intellectual Property or challenging or questioning the validity or
effectiveness of any such Intellectual Property. The use, in connection with the
business and operations of the Company and its Subsidiaries, of such
Intellectual Property does not, to the Company's knowledge, infringe on the
rights of any person.
(v) Neither the Company nor any of its Subsidiaries nor, to the Company's
knowledge, any employee or agent of the Company or any Subsidiary has made any
payment of funds of the Company or any Subsidiary or received or retained any
funds in violation of any law, rule or regulation or of a character required to
be disclosed in the Prospectus.
(w) The Company has complied, and until the completion of the
distribution of the Shares, will comply with all of the provisions of
(including, without limitation, filing all forms required by) Section 517.075 of
the Florida Securities and Investor Protection Act and regulation 3E-900.001
issued thereunder with respect to the offering and sale of the Shares.
(x) Neither the Company nor, to the best of the Company's knowledge
after due inquiry, any of its officers, directors, partners, employees, agents
or affiliates or any other person acting on behalf of the Company has, directly
or indirectly, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business) to
any customer, supplier, employee or agent of a customer or supplier, official or
employee of any governmental agency (domestic or foreign), instrumentality of
any government (domestic or foreign) or any political party or candidate for
office (domestic or foreign) or other person or entity who was, is or may be in
a position to help or hinder the business of the Company (or assist the Company
in connection with any actual or proposed transaction) which (i) might subject
the Company or any other such individual or entity to any damage or penalty in
any civil, criminal or governmental litigation or proceeding (domestic or
foreign), (ii) if not given in the past, might have had a Material Adverse
Effect, or (iii) if not continued in the future, might have a Material Adverse
Effect.
(y) The Company (i) has filed all necessary Federal, state and foreign tax
returns, (ii) has paid all Federal, state, local and foreign taxes for which it
is liable and has furnished all information returns it is required to furnish
pursuant to the Internal Revenue Code of 1986, as amended (the "Code"), (iii)
has established adequate reserves for all of such taxes which are not
immediately due and payable, and (iv) does not have any tax deficiencies or
claims outstanding, assessed or, to the Company's knowledge, threatened against
it which may have a Material Adverse Effect.
(z) The Company maintains insurance policies and surety bonds,
including, but not and risks reasonably insured against by comparable
businesses.
(aa) Except as described in the Prospectus, the Company does not
maintain, sponsor or contribute to any program or arrangement that is an
"employee pension benefit plan," an "employee welfare benefit plan" or a
"multiemployer plan" (collectively, "ERISA Plans") as such terms are defined in
Sections 3(2), 3(1) and 3(37), respectively, of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The Company has not maintained or
contributed to a defined benefit plan as defined in Section 3(35) of ERISA. No
ERISA Plan (or any trust created thereunder) has engaged in a "prohibited
transaction" within the meaning of Section 406 of ERISA or Section 4975 of the
Code, which could subject the Company to any tax penalty on prohibited
transactions and which has not adequately been corrected. Each ERISA Plan is in
compliance with all material reporting, disclosure and other requirements of the
Code and ERISA as they relate to such ERISA Plan. Determination letters have
been received from the Internal Revenue Service with respect to each ERISA Plan
which are intended to comply with Code Section 401(a) stating that such ERISA
Plan and the attendant trust are qualified thereunder. The Company has never
completely or partially withdrawn from such a "multiemployer plan." The Company
will not be subject to any material liability under ERISA or any ERISA Plans.
(bb) Except as set forth in the Prospectus, no officer, director,
stockholder or employee of the Company or any "affiliate" or "associate" (as
such terms are defined in Rule 405 of the Rules and Regulations) of any of the
foregoing persons or entities has or has had, either directly or indirectly, (i)
an interest in any entity which (A) furnishes or sells services or products
which are furnished or sold, or are proposed to be furnished or sold, by the
Company or (B) purchases from or sells or furnishes to the Company any goods or
services or (ii) a beneficiary interest in any contract or agreement to which
the Company is a party or by which it may be bound or affected, which interest
is required to be disclosed in the Prospectus. Except as set forth in the
Prospectus, there are no existing or proposed agreements, arrangements,
understandings or transactions between or among the Company and any officer,
director, stockholder or employee of the Company or any affiliate or associate
of any of the foregoing persons or entities required to be disclosed in the
Prospectus.
(cc) The property, assets and operations of each of the Company and the
Subsidiaries comply in all material respects with all applicable federal, state
or local laws, rules, orders, decrees, judgments, injunctions, licenses, permits
or regulations relating to environmental matters (the "Environmental Laws"),
except to the extent that failure to comply with such Environmental Laws would
not have a Material Adverse Effect. None of the Company's nor any of the
Subsidiaries' property, assets or operations is the subject of any federal,
state or local investigation evaluating whether any remedial action is needed to
respond to a release of any substance regulated by or form the basis of
liability under any Environmental Laws (a "Hazardous Material") into the
environment or is in contravention of any federal, state, local or foreign law,
order or regulation that would have a Material Adverse Effect. Neither the
Company nor any of the Subsidiaries has received any notice or claim, nor are
there pending, threatened or reasonably anticipated lawsuits against it with
respect to violations of an Environmental Law or in connection with the release
of any Hazardous Material into the environment. Neither the Company nor any of
the Subsidiaries has any materialease of Hazardous Material into the
environment.
4. Agreements of the Company. The Company agrees with the Underwriter
as follows.
(a) The Company shall timely file all such reports, forms or other
documents as may be required from time to time under the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations and all
such reports, forms and documents so filed will comply as to form and substance
with the applicable requirements of the Act, the Rules and Regulations, the
Exchange Act and the Exchange Act Rules and Regulations.
(b) The Company shall not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Underwriter within a reasonable period of time prior to the filing thereof and
the Underwriter shall not have objected thereto in good faith.
(c) The Company shall use its best efforts to cause the Registration
Statement to become effective, and shall notify the Underwriter promptly, and
shall confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective, (ii) of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the Commission or any state regulatory body of any stop
order suspending the effectiveness of the Registration Statement or prohibiting
or making illegal the offering of the Shares or the initiation of any
proceedings for that purpose or the threat thereof, (iv) of the happening of any
event that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make the
statements therein, in light of the circumstances in which they are made, not
misleading and (v) of receipt by the Company or any representative of the
Company of any other communication from the Commission relating to the Company,
the Registration Statement, any preliminary prospectus or the Prospectus. If at
any time the Commission shall issue any order suspending the effectiveness of
the Registration Statement, the Company shall make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment. The Company
shall use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and to notify the
Underwriter promptly of all such filings.
(d) The Company shall furnish to the Underwriter, without charge, two
signed copies of the Registration Statement and of any post-effective amendment
thereto, including financial statements and schedules, and all exhibits thereto
(including any document filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus).
(e) The Company shall comply with all the provisions of any
undertakings contained in the Registration Statement.
(f) On the Effective Date, and thereafter from time to time, the
Company shall deliver to the Underwriter, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as the Underwriter may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriter and by all dealers to whom
the Shares may be sold, both in connection with the offering or sale of the
Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company or counsel to
the Underwriter should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company shall forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and shall deliver to
the Underwriter, without charge, such number of copies thereof as the
Underwriter may reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of the Shares by
the Underwriter if such document would be deemed to be incorporated by reference
into the Prospectus which is not approved by the Underwriter after reasonable
notice thereof.
(g) Prior to any public offering of the Shares by the Underwriter, the
Company shall cooperate with the Underwriter and counsel to the Underwriter in
connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriter may request, provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process in any jurisdiction where it is not now so subject.
(h) During the period of five years commencing on the Effective Date,
the Company shall furnish to the Underwriter copies of such financial statements
and other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and shall
furnish to the Underwriter a copy of each annual or other report it shall be
required to file with the Commission.
(i) The Company shall make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section ll(a) of the Act
(including Rule 158 of the Rules and Regulations).
(j) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company shall pay, or
reimburse if paid by the Underwriter, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to costs and expenses of or relating to (i) the preparation,
printing and filing of the Registration Statement and exhibits to it, each
preliminary prospectus, the Prospectus and any amendment or supplement to the
Registration Statement or the Prospectus, (ii) the preparation and delivery of
certificates representing the Shares, (iii) the printing of this Agreement and
all related agreements, (iv) furnishing (including costs of shipping, mailing
and courier) such copies of the Registration Statement, the Prospectus and any
preliminary prospectus, and all amendments and supplements thereto, as may be
requested for use in connection with the offering and sale of the Shares by the
Underwriter or by dealers to whom Shares may be sold, (v) the listing of the
Shares on the New York Stock Exchange, (vi) any filings required to be made by
the Underwriter with the NASD, and the fees, disbursements and other charges of
counsel for the Underwriter in connection therewith, (vii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions designated pursuant to Section 4(g), including the
fees, disbursements and other charges of counsel to the Underwriter in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (viii) counsel to the Company, (ix)
the transfer agent for the Shares and (x) the Accountants.
(k) If this Agreement shall be terminated by the Company pursuant to
any of the provisions hereof or if for any reason the Company shall be unable to
perform its obligations hereunder, the Company shall reimburse the Underwriter
for all out-of-pocket expenses (including the fees, disbursements and other
charges of counsel to the Underwriter) reasonably incurred by them in connection
herewith.
(l)The Company shall not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result in,
or which shall constitute, stabilization of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(m) The Company shall apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds."
(n) The Company will not, for a period of 90 days after the
commencement of the public offering of the Shares without the prior written
consent of the Underwriter, sell, contract to sell or otherwise dispose of any
shares of Common Stock or rights to acquire such shares (other than pursuant to
employee stock option or purchase plans or other employee incentive compensation
arrangements).
5. Conditions of the Obligations of the Underwriter. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
the Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Underwriter not later than 5:00 p.m., New York City
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Underwriter and all filings required by Rule 424
of the Rules and Regulations and Rule 430A shall have been made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect and no proceeding for such purpose shall be pending before or
threatened or contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part of the
staff of the Commission or any such authorities shall have been complied with to
the satisfaction of the staff of the Commission or such authorities and (iv)
after the date hereof no amendment or supplement to the Registration Statement
or the Prospectus shall have been filed unless a copy thereof was first
submitted to the Underwriter and the Underwriter did not object thereto in good
faith, and the Underwriter shall have received a certificate, dated the Closing
Date and signed by the Chief Executive Officer of the Company and the Chief
Financial Officer of the Company (who may, as to proceedings threatened, rely
upon the best of their information and belief), to the effect of clauses (i),
(ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, in each case other
than as set forth in or contemplated by the Registration Statement and the
Prospectus, (ii) neither the Company nor any of its Subsidiaries shall have
sustained any material loss or interference with its business or properties from
fire, explosion, flood or other casualty, whether or not covered by insurance,
or from any labor dispute or any court or legislative or other governmental
action, order or decree, which is not set forth in the Registration Statement
and the Prospectus, if in the judgment of the Underwriter any such development
makes it impracticable or inadvisable to consummate the sale and delivery of the
Shares by the Underwriter at the initial public offering price, (iii) there
shall have been no transactions, not in the ordinary course of business, entered
into by the Company and no liabilities or obligations incurred by the Company,
in each case from the latest date as of which the financial condition of the
Company is set forth in the Registration Statement and the Prospectus, which are
adverse to the Company, (iv) the Company has not issued any securities (other
than the Shares) or declared or paid any dividend or made any distribution in
respect of its capital stock of any class, debt (long-term or short-term) or,
except in the ordinary course of business, liabilities or obligations of the
Company (contingent or otherwise), except as set forth in the Registration
Statement and Prospectus, and (v) no material amount of the assets of the
Company shall have been pledged, mortgaged or otherwise encumbered, except as
set forth in the Registration Statement and Prospectus.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of its Subsidiaries or
any of their respective officers or directors in their capacities as such,
before or by any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding could have a
Material Adverse Effect.
(e) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date, as if made at the Closing Date, and all covenants and agreements
herein contained to be performed on the part of the Company and all conditions
herein contained to be fulfilled or complied with by the Company at or prior to
the Closing Date shall have been duly performed, fulfilled or complied with.
(f) The Underwriter shall have received an opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the Underwriter, from
Balch & Bingham, counsel to the Company, to the effect set forth in Exhibit C.
(g) The Underwriter shall have received an opinion, dated the Closing
Date, from Shereff, Friedman, Hoffman & Goodman, LLP, counsel to the
Underwriter, with respect to the Registration Statement, the Prospectus and this
Agreement, which opinion shall be satisfactory in all respects to the
Underwriter.
(h) On the date of the Prospectus, the Accountants shall have furnished
to the Underwriter a signed letter, dated the date of its delivery, addressed to
the Underwriter and in form and substance satisfactory to the Underwriter,
confirming that the Accountants are independent accountants and their opinion
that the financial statements and schedules examined by them and included or
incorporated by reference in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and the
Exchange Act and will set forth certain agreed upon procedures and the results
thereof with respect to the financial and other statistical and numerical
information contained in the Registration Statement or incorporated by reference
therein as the Underwriter may request. At the Closing Date, the Accountants
shall have furnished to the Underwriter a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from the Accountants, that nothing has come
to their attention during the period from the date of the letter referred to in
the prior sentence to a date (specified in the letter) not more than three days
prior to the Closing Date which would require any change in their letter dated
the date of the Prospectus, if it were required to be dated and delivered at the
Closing Date.
(i) At the Closing Date, there shall be furnished to the Underwriter an
accurate certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer and the Chief Financial Officer of the Company, in form
and substance satisfactory to the Underwriter, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents filed under
the Exchange Act and deemed to be incorporated by reference into the Prospectus)
and (A) as of the date of such certificate, such documents are true and correct
in all material respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not untrue
or misleading and (B) since the Effective Date, no event has occurred as a
result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein not untrue or misleading in any material respect
and there has been no document required to be filed under the Exchange Act and
the Exchange Act Rules and Regulations that upon such filing would be deemed to
be incorporated by reference into the Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the time
such certificate is delivered, true and correct in all material respects.
(iii) Each of the covenants required herein to be performed by
the Company on or prior to the date of such certificate has been duly, timely
and fully performed and each condition herein required to be complied with by
the Company on or prior to the delivery of such certificate has been duly,
timely and fully complied with.
(j) The Shares shall be qualified for sale in such states as the
Underwriter may reasonably request, each such qualification shall be in effect
and not subject to any stop order or other proceeding on the Closing Date.
(k) Prior to the Closing Date, the Shares shall have been duly
authorized for listing by the New York Stock Exchange upon official notice of
issuance.
(l) The Company shall have furnished to the Underwriter such
certificates, in addition to those specifically mentioned herein, as the
Underwriter may have reasonably requested as to the accuracy and completeness at
the Closing Date of any statement in the Registration Statement or the
Prospectus or any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, as to the accuracy at the Closing
Date of the representations and warranties of the Company herein, as to the
performance by the Company of its obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriter.
6. Indemnification.
(a) The Company will indemnify and hold harmless the Underwriter,
the directors, officers, employees and agents of the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses,
claims, liabilities, expenses and damages (including any and all investigative,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), to which they,
or any of them, may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based on any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus, or the omission or alleged
omission to state in such document a material fact required to be stated in it
or necessary to make the statements in it not misleading, provided that the
Company will not be liable to the extent that such loss, claim, liability,
expense or damage arises from the sale of the Shares in the public offering to
any person by the Underwriter and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the Company by
the Underwriter expressly for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus. This indemnity agreement will be in
addition to any liability that the Company might otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, each director of the Company and
each officer of the Company who signs the Registration Statement to the same
extent as the foregoing indemnity from the Company to the Underwriter, but only
insofar as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to the
Underwriter furnished in writing to the Company by the Underwriter expressly for
use in the Registration Statement, any preliminary prospectus or the Prospectus.
This indemnity will be in addition to any liability that the Underwriter might
otherwise have.
(c) Any party that proposes to assert the right to be indemnified under
this Section 6 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(i) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available ed parties that are different from or in addition to those available
to the indemnifying party, (iii) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of he
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party shall,
without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated by this Section
6 (whether or not any indemnified party is a party thereto), unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriter, the
Company and the Underwriter will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriter, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company
and the Underwriter may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriter, in each case as set forth in the table
on the cover page of the Prospectus. If, but only if, the allocation provided by
the foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriter, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevanns with respect to such offering. Such relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 6(d) shall be deemed to include, for
purpose of this Section 6(d), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), the
Underwriter shall not be required to contribute any amount in excess of the
underwriting discounts received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6(d), any person who controls a
party to this Agreement within the meaning of the Act will have the same rights
to contribution as that party, and each officer of the Company who signed the
Registration Statement will have the same rights to contribution as the Company,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of the Underwriter, (ii) acceptance of
any of the Shares and payment therefor or (iii) any termination of this
Agreement.
7. Termination. The obligations of the Underwriter under this Agreement
may be terminated without liability on the part of the Underwriter to the
Company at any time prior to the Closing Date by notice to the Company if, prior
to delivery and payment for the Shares, in the sole judgment of the Underwriter
(i) trading in any of the equity securities of the Company shall have been
suspended by the Commission or by the New York Stock Exchange, (ii) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
such exchange, or additional material governmental restrictions, not in force on
the date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any court or other
governmental authority, (iii) a general banking moratorium shall have been
declared by either Federal or New York State authorities or (iv) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or declaration by the United States of a
national emergency or war or other calamity or crisis shall have occurred, the
effect of any of which is such as to make it, in the sole judgment of the
Underwriter, impracticable or inadvisable to market the Shares on the terms and
in the manner contemplated by the Prospectus.
8. Miscellaneous. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 1000 Urban
Center Drive, Suite 300, Birmingham, Alabama 35242, Attention: Executive Vice
President and General Counsel, or (b) if to the Underwriter, at the offices of
PaineWebber Incorporated, 1285 Avenue of the Americas, New York, New York 10019,
Attention: Corporate Finance Department. Any such notice shall be effective only
upon receipt. Any notice under Section 7 may be made by telex or telephone, but
if so made shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of
the Underwriter, the Company and of the controlling persons, directors and
officers referred to in Section 6, and their respective successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this Agreement shall not
include a purchaser, as such purchaser, of Shares from the Underwriter.
All representations, warranties and agreements of the Company
contained herein or in certificates or other instruments delivered pursuant
hereto, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any of their
controlling persons and shall survive delivery of and payment for the Shares
hereunder.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAWS PRINCIPLES OF SUCH STATE. This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enf The Company and the
Underwriter each hereby irrevocably waive any right they may have to a trial by
jury in respect of any claim based upon or arising out of this Agreement or the
transactions contemplated hereby.
This Agreement may not be amended or otherwise modified or any
provision hereof waived except by an instrument in writing signed by the
Underwriter and the Company.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Underwriter.
Very truly yours,
BIRMINGHAM STEEL CORPORATION
By: ________________________________
Name:
Title:
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
By: ______________________________
Name:
Title:
<PAGE>
Exhibit 5.1
BALCH & BINGHAM
Post Office Box 306
Birmingham, Alabama 35201
(205)251-8100
November 27, 1996
Birmingham Steel Corporation
1000 Urban Center Drive, Suite 300
Birmingham, Alabama 35242-2516
Re: Birmingham Steel Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the above-captioned registration statement
and related prospectus filed by Birmingham Steel Corporation (the "Company")
with the Securities and Exchange Commission under the Securities Act of 1933 for
the registration of 1,000,000 shares of its common stock, par value $.01 per
share (the "Stock"). We have also examined certified copies of the Company's
Certificate of Incorporation, as amended, and of its by-laws and are familiar
with all proceedings relating to the issuance and sale of the Stock. We are of
the opinion that:
(a) The Company is a corporation duly organized and
existing under the laws of the State of Delaware; and
(b) upon compliance with the relevant provisions of the
Securities Act of 1933, upon compliance with the securities or "Blue
Sky" laws of any jurisdiction applicable thereto, when appropriate
resolutions authorizing the issuance and sale of the Stock have been
duly adopted by the Board of Directors of the Company, when
certificates for the Stock have been executed by the Company,
countersigned and registered by the transfer agent and registrar and
delivered for a consideration in cash equal to or greater than the par
value of the Stock, the Stock will be valid and legally issued, fully
paid and non-assessable shares of the Company, and the holders thereof
will be entitled to the rights and privileges appertaining thereto as
set forth in the Company's Certificate of Incorporation, as amended.
We hereby consent to the filing of this opinion or copies
thereof as an exhibit to the registration statement and to the statements made
in regard to our firm under the caption "Legal Matters" in the related
prospectus.
Yours very truly,
/s/ Balch & Bingham
<PAGE>
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of
Birmingham Steel Corporation for the registration of 1,000,000 shares of its
common stock and to the incorporation by reference therein of our report dated
August 2, 1996, with respect to the consolidated financial statements and
schedule of Birmingham Steel Corporation included in its Annual Report (Form
10-K) for the year ended June 30, 1996, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
November 25, 1996
Birmingham, Alabama
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
WHEREAS, Birmingham Steel Corporation (the "Company") proposes
to file a registration statement and amendments thereto under the Securities Act
of 1933 with respect to the issuance of 1,000,000 shares of its $.01 par value
common stock pursuant to the terms of an underwriting agreement between the
Company and PaineWebber Incorporated, as underwriter.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that the
undersigned directors and officers of the Company, individually as a director
and/or as an officer of the Company, hereby make, constitute and appoint each of
William R. Lucas, John M. Casey and Catherine W. Pecher their true and lawful
attorney-in-fact for each of them and in each of their names, places and steads
to sign and cause to be filed with the Securities and Exchange Commission said
registration statement, including prospectuses, and any appropriate amendments
thereto, to be a accompanied by any necessary exhibits.
The Company hereby authorizes said persons or any one of them
to execute said registration statement and amendments thereto on its behalf as
attorney-in-fact for it and its authorized officers, and to file the same as
aforesaid.
The undersigned directors and officers of the Company hereby
authorize said persons or any one of them to sign said registration statement on
their behalf as attorney-in-fact and to amend, or remedy any deficiencies with
respect to, said registration statement by appropriate amendment or amendments
and to file the same as aforesaid, hereby giving and granting to said attorneys
full power and authority to do so and perform all and every act and thing
whatsoever requisite and necessary to complete the foregoing, hereby ratifying
and confirming all that said attorneys may or shall do, or cause to be done, by
virtue hereof.
DONE this the 26th day of November, 1996.
/s/Robert A. Garvey
- --------------------------
Robert A. Garvey
/s/E. Mandell deWindt
- --------------------------
E. Mandell deWindt
/s/Harry Holiday, Jr.
- --------------------------
Harry Holiday, Jr.
/s/C. Stephen Clegg
- --------------------------
C. Stephen Clegg
/s/George A. Stinson
- --------------------------
George A. Stinson
/s/E. Bradley Jones
- --------------------------
E. Bradley Jones
/s/Reginald H. Jones
- --------------------------
Reginald H. Jones
/s/T. Evans Wyckoff
- --------------------------
T. Evans Wyckoff
/s/William J. Cabaniss, Jr.
- ---------------------------
William J. Cabaniss, Jr.
/s/Robert D. Kennedy
- ---------------------------
Robert D. Kennedy
/s/Robert E. Powell
- ---------------------------
Robert E. Powell
/s/John M. Casey
- ---------------------------
John M. Casey
<PAGE>
BALCH & BINGHAM
Post Office Box 306
Birmingham, Alabama 35201
(205)251-8100
(205)226-3459
November 27, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Attention: Filing Desk, Stop 1-4
Re: Birmingham Steel Corporation
Commission File No. 1-9820
Registration Statement on Form S-3
Gentlemen:
Pursuant to the Securities Act of 1933 and the General Rules
and Regulations of the Securities and Exchange Commission (the "Commission")
thereunder, we are filing by EDGAR on behalf of Birmingham Steel Corporation, a
Delaware corporation (the "Registrant"), CIK NO. 0000779334, a Registration
Statement on Form S-3 with respect to the issuance of 1,000,000 shares of $0.01
par value common stock of the Registrant, together with required exhibits.
A filing fee of $5,689.66, payable to the account of the
Securities and Exchange Commission, has been wired to a lockbox at Mellon Bank
in Pittsburgh.
If any questions should arise regarding this Registration
Statement, please contact the undersigned at (205)225-3459, or at the above
address.
Yours very truly,
/s/ Gregory S. Curran
Gregory S. Curran
GSC:jhb
Enclosures
cc: Mr. William R. Lucas, Jr.
Mr. John M. Casey
