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As filed with the Securities and Exchange Commission on August 25, 1997.
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement Under The Securities Act of 1933
BIRMINGHAM STEEL CORPORATION
(Exact Name of Issuer as Specified in Its Charter)
DELAWARE
(State of Incorporation)
13-3213634
(IRS Employer Identification No.)
1000 Urban Center Drive, Suite 300
Birmingham, Alabama 35242-2516
(Address of Principal Executive Offices)
BIRMINGHAM STEEL CORPORATION
DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
Catherine W. Pecher
Vice President and Secretary
Birmingham Steel Corporation
1000 Urban Center Drive, Suite 300, Birmingham, Alabama 35242-2516
(Name and Address of Agent for Service)
(205) 970-1200
(Telephone Number, including area code, of Agent for Service)
Copy to:
Gregory S. Curran
Balch & Bingham LLP
1901 Sixth Avenue North
Birmingham, Alabama 35203
(205) 251-8100
CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed Amount
Securities Amount Maximum Maximum of
Being Being Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee
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Common Stock 100,000(2) $18.00 $1,800,000 $545.45
$.01 par value
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(1) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
offering price is estimated solely for the purpose of determining the
registration fee and is based on the average of the bid and asked
prices of the common stock of Birmingham Steel Corporation on August
19, 1997.
(2) Pursuant to Rule 416 of the Securities Act of 1933, as amended, the
number of shares of securities registered on this Registration
Statement will be increased as a result of future stock splits, stock
dividends or similar transactions.
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PART I
EXPLANATORY NOTE
Birmingham Steel Corporation (the "Registrant") is filing this
Registration Statement on Form S-8 in order to register 100,000 shares of common
stock, $.01 par value per share (the "Common Stock"), to be offered or sold
pursuant to the terms and conditions of the Birmingham Steel Corporation
Director Stock Option Plan (the "Plan").
A prospectus meeting the requirements of Part I of Form S-8 and
containing the statement required by Item 2 of Form S-8 has been prepared. Such
prospectus is not included in this Registration Statement but will be delivered
to all participants in the Plan pursuant to Rule 428(b)(1) under the Securities
Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference: (i) the Registrant's Annual Report on Form
10-K and Form 10-K/A for the fiscal year ended June 30, 1996, (ii) the
Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996, (iii) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996, (iv) the Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997, (v) the Registrant's Current Report on Form 8-K,
dated December 12, 1996, as amended, and (vi) the description of the
Registrant's Common Stock contained in the Registrant'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 Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent
to the date of this Registration Statement and prior to the termination of the
offering of the securities offered hereby shall be deemed to be incorporated by
reference in this Registration Statement 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
Registration Statement 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 Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant 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,
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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 Registrant's By-Laws provide for indemnification of directors and
officers of the Registrant to the fullest extent permitted by Delaware law.
The Registrant 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 Registrant'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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated by reference
herein as part of this Registration Statement:
Sequential
Exhibit Description
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference from Registrant's Registration Statement on Form 8-A, filed
November 16, 1986, Exhibit 2.2)
4.2 By-Laws of the Registrant (incorporated by reference from Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1986,
Exhibit 3.2)
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4.3 Secretary's certification and Amendment to By-Laws of Registrant dated
August 17, 1990 (incorporated by reference from Registrant's Annual
Report on Form 10-K for the fiscal year ended June 30, 1990, Exhibit
3.2.1)
4.4 Amendment to By-Laws of the Registrant dated June 27, 1991 (incorporated
by reference from Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1991, Exhibit 3.2.3)
4.5 Rights Agreement, dated as of January 16, 1996, between the Registrant
and First Union National Bank of North Carolina, as Rights Agent
(incorporated by reference from Registrant's Registration Statement on
Form 8-A, as filed on January 23, 1996, Exhibit 4)
4.6 Birmingham Steel Corporation Director Stock Option Plan (incorporated by
reference from Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, Exhibit 10.1)
5.1 Opinion of Balch & Bingham LLP regarding legality of Shares
23.1 Consent of Ernst & Young LLP
23.2 Consent of Balch & Bingham LLP (included in Exhibit 5.1)
24 Power of Attorney of the Officers and Directors of the Registrant
Item 9. Undertakings.
a. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) To transmit or cause to be transmitted to all participants
in the Plan who do not otherwise receive such material as stockholders of the
Registrant at the time and in the manner such material is sent to its
stockholders, copies of all reports, proxy statements and other communications
distributed to its stockholders generally.
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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 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 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Birmingham, State of Alabama, on August 22,
1997.
BIRMINGHAM STEEL CORPORATION
By:/s/ J. Daniel Garrett
J. Daniel Garrett
Its: Vice President and Controller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature
Title
Date
*
E. Mandell de Windt
Chairman-Executive Committee, Director
August 22, 1997
*
Robert A. Garvey
Chairman of the Board, Chief
Executive Officer, Director
(Principal Executive Officer)
August 22, 1997
*
Harry Holiday, Jr.
Director
August 22, 1997
*
C. Stephen Clegg
Director
August 22, 1997
*
George A. Stinson
Director
August 22, 1997
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*
E. Bradley Jones
Director
August 22, 1997
*
Reginald H. Jones
Director
August 22, 1997
*
T. Evans Wyckoff
Director
August 22, 1997
*
William J. Cabaniss, Jr.
Director
August 22, 1997
*
Robert D. Kennedy
Director
August 22, 1997
/s/ J. Daniel Garrett
J. Daniel Garrett
Vice President and Controller
(Principal Financial and Accounting
Officer)
August 22, 1997
*By /s/ Catherine W. Pecher
Catherine W. Pecher
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit Description
4.1 Restated Certificate of Incorporation of the Registrant (incorporated by
reference from Registrant's Registration Statement on Form 8-A, filed
November 16, 1986, Exhibit 2.2)
4.2 By-Laws of the Registrant (incorporated by reference from Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1986,
Exhibit 3.2)
4.3 Secretary's certification and Amendment to By-Laws of Registrant dated
August 17, 1990 (incorporated by reference from Registrant's Annual Report
on Form 10-K for the fiscal year ended June 30, 1990, Exhibit 3.2.1)
4.4 Amendment to By-Laws of the Registrant dated June 27, 1991 (incorporated
by reference from Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1991, Exhibit 3.2.3)
4.5 Rights Agreement, dated as of January 16, 1996, between the Registrant and
First Union National Bank of North Carolina, as Rights Agent (incorporated
by reference from Registrant's Registration Statement on Form 8-A, as
filed on January 23, 1996, Exhibit 4)
4.6 Birmingham Steel Corporation Director Stock Option Plan (incorporated by
reference from Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, Exhibit 10.1)
5.1 Opinion of Balch & Bingham LLP regarding legality of Shares
23.1 Consent of Ernst & Young LLP
23.2 Consent of Balch & Bingham LLP (included in Exhibit 5.1)
24 Power of Attorney of the Officers and Directors of the Registrant
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[BALCH & BINGHAM LLP LETTERHEAD]
August 22, 1997
Birmingham Steel Corporation
1000 Urban Center Drive
Suite 300
Birmingham, Alabama 35242-2516
Re: Birmingham Steel Corporation -- Registration Statement on
Form S-8
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended, of 100,000 shares of the common stock, $.01 par value per share (the
"Common Stock"), of Birmingham Steel Corporation, a Delaware corporation (the
"Corporation"), for issuance and sale in the manner described in the
Corporation's Registration Statement on Form S-8 filed with the Securities and
Exchange Commission, to which this opinion is an exhibit (the "Registration
Statement"), we, as counsel to the Corporation, have examined such corporate
records, certificates, and other documents as we considered necessary or
appropriate for the purposes of delivering this opinion.
On the basis of the foregoing, we are of the opinion that the Common
Stock offered pursuant to the Registration Statement has been duly and validly
authorized and is, or when issued in accordance with the respective governing
documents will be, duly and validly issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Yours very truly,
/s/ Balch & Bingham LLP
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Exhibit 23.1
Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the Birmingham Steel Corporation Director Stock
Option Plan 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 and Form 10-K/A) for the year ended June 30, 1996,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
August 21, 1997
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Exhibit 24
POWER OF ATTORNEY
WHEREAS, the Board of Directors of Birmingham Steel
Corporation (the "Company") has determined that it is in the best interest of
the Company to register 100,000 shares of the Company's common stock for
issuance under the Company's Director Stock Option Plan; and
WHEREAS, the Company proposes to file a registration statement
on Form S-8 and amendments thereto under the Securities Act of 1933 with respect
to the above-referenced plan.
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
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
and any appropriate amendments thereto, to be 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 30th day of June , 1997.
/s/ E. Mandell de Windt
E. Mandell de Windt
/s/ Robert A. Garvey
Robert A. Garvey
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/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
