As filed with the Securities and Exchange Commission on February 24, 1998.
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 13-3213634
(State of Incorporation) (IRS Employer Identification No.)
1000 Urban Center Drive, Suite 300
Birmingham, Alabama 35242-2516
(Address of Principal Executive Offices)
BIRMINGHAM STEEL CORPORATION
1997 MANAGEMENT INCENTIVE 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:
Suzanne Ashe
Balch & Bingham LLP
1901 Sixth Avenue North
Birmingham, Alabama 35203
(205) 251-8100
CALCULATION OF REGISTRATION FEE
================================================================================
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
- --------------------------------------------------------------------------------
Common Stock 900,000(2) $17.25 $15,525,000 $4,579.88
$.01 par value
- --------------------------------------------------------------------------------
(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 high and low prices
of the common stock of Birmingham Steel Corporation on February 23,
1998.
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.
================================================================================
<PAGE>
PART I
EXPLANATORY NOTE
Birmingham Steel Corporation (the "Registrant") is filing this
Registration Statement on Form S-8 in order to register 900,000 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 1997
Management Incentive 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 for the fiscal year ended June 30, 1997, (ii) the Registrant's Quarterly
Report on Form 10-Q and Form 10-Q/A for the quarter ended September 30, 1997,
(iii) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997, and (iv) 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 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
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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 or 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)
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 1997 Management Incentive Plan
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, 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, 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 deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given,
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the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(6) 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 January 13,
1998.
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
*
- ---------------------- Chairman-Executive Committee, January 13, 1998
E. Mandell de Windt Director
*
- ---------------------- Chairman of the Board, Chief January 13, 1998
Robert A. Garvey Executive Officer, Director
(Principal Executive Officer)
*
- ---------------------- Director January 13, 1998
Harry Holiday, Jr.
*
- ---------------------- Director January 13, 1998
C. Stephen Clegg
*
- ---------------------- Director January 13, 1998
George A. Stinson
5
*
- ---------------------- Director January 13, 1998
E. Bradley Jones
*
- ---------------------- Director January 13, 1998
Reginald H. Jones
*
- ---------------------- Director January 13, 1998
T. Evans Wycoff
*
- ---------------------- Director January 13, 1998
William J. Cabaniss, Jr.
*
- ---------------------- Director January 13, 1998
Robert D. Kennedy
/s/ J. Daniel Garrett
- ---------------------- Vice President and Controller January 13, 1998
J. Daniel Garrett (Principal Financial and
Accounting Officer)
*By /s/ Catherine W. Pecher
------------------------
Catherine W. Pecher
Attorney-in-Fact
6
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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 1997 Management Incentive Plan
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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Exhibit 4.6
BIRMINGHAM STEEL CORPORATION
1997 MANAGEMENT INCENTIVE PLAN
SECTION 1. General Purpose of Plan: Definitions.
The name of this plan is the Birmingham Steel Corporation 1997
Management Incentive Plan (the "Plan"). The purpose of the Plan is to enable
Birmingham Steel Corporation (the "Company") and its Subsidiaries and Affiliates
to attract and retain employees who contribute to the Company's success by their
ability, ingenuity and industry, and to enable such employees to participate in
the long-term success and growth of the Company through an equity interest in
the Company.
For purposes of the Plan, the following terms shall be defined as set
forth below:
a. "Affiliate" means any corporation (other than a
Subsidiary), partnership, joint venture or any other entity in which
the Company owns, directly or indirectly, at least a 10 percent
beneficial ownership interest.
b. "Board" means the Board of Directors of the Company.
c. "Cause" means a felony conviction of a participant or the
failure of a participant to contest prosecution for a felony, or a
participant's willful misconduct or dishonesty which is harmful to the
business or reputation of the Company or any Subsidiary or Affiliate.
d. "Code" means the Internal Revenue Code of 1986, as amended,
or any successor thereto.
e. "Committee" means a committee of the Board appointed for
the purpose of administering the Plan, which committee shall consist
exclusively of Disinterested Persons.
f. "Commission" means the Securities and Exchange Commission.
g. "Company" means Birmingham Steel Corporation, a corporation
organized under the laws of the State of Delaware (or any successor
corporation).
h. "Disability" means total and permanent disability as
determined under the Company's long term disability program.
i. "Disinterested Person" shall mean a member of the Company's
Board who satisfies the requirements for being (i) a "disinterested
person" within the meaning set forth in Rule 16b-3(b)(3) as promulgated
by the Commission under the Exchange Act, or any successor definition
adopted by the Commission, and (ii) an "outside director"
<PAGE>
within the meaning set forth in Section 162(m) of the Code and the
treasury regulations promulgated thereunder, as amended from time to
time.
j. "Early Retirement" means retirement from active employment
with the Company, any Subsidiary and any Affiliate on or after the date
on which a participant reaches the age of fifty-five (55) but before
the date on which the participant reaches the age of sixty-five (65).
k. "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and any successor thereto.
l. "Fair Market Value" means, as of any given date, the
closing price of the Stock on such date (or if no transactions were
reported on such date on the next preceding date on which transactions
were so reported) on the New York Stock Exchange Composite Tape or if
the Stock is not on such date listed on the New York Stock Exchange, in
the principal market in which such Stock is traded on such date.
m. "Incentive Stock Option" means any Stock Option intended to
be and designated as an "incentive stock option" within the meaning of
Section 422 of the Code.
n. "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
o. "Normal Retirement" means retirement from active employment
with the Company, any Subsidiary, and any Affiliate on or after the
date on which a participant reaches the age of sixty-five (65).
p. "Performance Award" means an award of shares of Stock or
cash to the executives pursuant to Section 8 contingent upon achieving
certain performance goals.
q. "Plan" means this 1997 Management Incentive Plan.
r. "Restricted Stock" means an award of shares of Stock that
are subject to restrictions under Section 7 hereof.
s. "Retirement" means Normal or Early Retirement.
t. "Stock" means the Common Stock of the Company.
u. "Stock Appreciation Right" means a right granted under
Section 6 hereof, which entitles the holder to receive a cash payment
or an award of Stock in an amount equal to the difference between (i)
the Fair Market Value of the Stock covered by such right at the date
the right is granted, unless otherwise determined by the Committee
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pursuant to Section 6 and (ii) the Fair Market Value of the Stock
covered by such right at the date the right is exercised multiplied by
the number of shares covered by the right.
v. "Stock Option" means any option to purchase shares of Stock
granted to employees pursuant to Section 5.
w. "Subsidiary" means any corporation (other than the Company)
in an unbroken chain of corporations beginning with the Company if each
of the corporations (other than the last corporation in the unbroken
chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the
chain.
x. "Ten Percent Shareholder" means a person who owns (after
taking into account the attribution rules of Code Section 424(b)) more
than ten percent (10%) of the total combined voting power of all
classes of stock of the Company.
SECTION 2. Administration.
The Plan shall be administered by the Committee which shall at all
times consist of not less than three Disinterested Persons.
The Committee shall have the power and authority to grant to eligible
employees, pursuant to the terms of the Plan: (i) Stock Options; (ii) Stock
Appreciation Rights; (iii) Restricted Stock; or (iv) Performance Awards.
In particular, the Committee shall have the authority:
(i) to select the officers and other key employees of the
Company, its Subsidiaries, and its Affiliates to whom Stock Options,
Stock Appreciation Rights, Restricted Stock, or Performance Awards or a
combination of the foregoing from time to time will be granted
hereunder;
(ii) to determine whether and to what extent Incentive Stock
Options, NonQualified Stock Options, Stock Appreciation Rights,
Restricted Stock, or Performance Awards or a combination of the
foregoing, are to be granted hereunder;
(iii) to determine the number of shares of Stock to be covered
by each such award granted hereunder;
(iv) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of any award granted hereunder including,
but not limited to, any restriction on any Stock Option or other award
and/or the shares of Stock relating thereto based on performance and/or
such other factors as the Committee may determine, in its sole
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discretion, and any vesting features based on performance and/or such
other factors as the Committee may determine, in its sole discretion;
(v) to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an award
under this Plan shall be deferred either automatically or at the
election of a participant, including providing for and determining the
amount (if any) of deemed earnings on any deferred amount during any
deferral period.
Subject to Section 10, the Committee shall have the authority to adopt,
alter and repeal such administrative rules, guidelines and practices governing
the Plan as it shall, from time to time, deem advisable; to interpret the terms
and provisions of the Plan and any award issued under the Plan (and any
agreements relating thereto); and to otherwise supervise the administration of
the Plan.
Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect to
the Plan or any award hereunder shall be within the sole discretion of the
Committee, may be made at any time, and shall be final, conclusive, and binding
upon all persons, including the Company, any employee, any holder or beneficiary
of any award granted hereunder and any shareholder.
SECTION 3. Stock Subject to Plan.
The total number of shares of Stock reserved and available for
distribution under the Plan shall be 900,000 (subject to appropriate adjustments
to reflect changes in the capitalization of the Company). Such shares may
consist, in whole or in part, of authorized and unissued shares or treasury
shares.
The maximum number of shares subject to awards which may be granted
under the Plan to any individual in any one year is 100,000 (subject to
appropriate adjustments to reflect changes in the capitalization of the
Company).
If any shares of Stock that have been subject to Stock Options cease to
be subject to Stock Options, or if any shares subject to any Restricted Stock
award granted hereunder are forfeited or such award is otherwise terminated,
such shares shall again be available for distribution in connection with future
awards under the Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Stock, a substitution or adjustment shall be made in the aggregate
number of shares reserved for issuance under the Plan, in the number and option
price of shares subject to outstanding Stock Options granted under the Plan and
in the number of shares subject to Restricted Stock awards granted under the
Plan as may be determined to be appropriate by the Committee, in its sole
discretion, provided that the number of shares subject to any award shall always
be a whole number. Such adjusted option
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price shall also be used to determine the amount payable by the Company upon the
exercise of any Stock Appreciation Right associated with any Stock Option.
SECTION 4. Eligibility.
Officers and other key employees of the Company, its Subsidiaries or
its Affiliates (but excluding members of the Committee and any person who serves
only as a director) who are responsible for or contribute to the management,
growth and/or profitability of the business of the Company, its Subsidiaries, or
its Affiliates, are eligible to be granted Stock Options, Stock Appreciation
Rights, Restricted Stock or Performance Awards. The optionees and participants
under the Plan shall be selected from time to time by the Committee, in its sole
discretion, from among those eligible, and the Committee shall determine, in its
sole discretion, the number of shares covered by each award or grant.
SECTION 5. Stock Options.
Stock Options may be granted either alone or in addition to other
awards granted under the Plan. Any Stock Option granted under the Plan shall be
in such form as the Committee may from time to time approve, and the provisions
of Stock Option awards need not be the same with respect to each optionee.
The Stock Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Non-Qualified Stock Options.
The Committee shall have the authority to grant any optionee Incentive
Stock Options, Non-Qualified Stock Options, or both types of Stock Options (in
each case with or without Stock Appreciation Rights) except that Incentive Stock
Options shall not be granted to employees of an Affiliate. To the extent that
any Stock Option does not qualify as an Incentive Stock Option, it shall
constitute a separate Non-Qualified Stock Option.
Except as provided in Section 5(j) hereof, no term of this Plan
relating to Incentive Stock Options shall be interpreted, amended or altered,
nor shall any discretion or authority granted under the Plan be so exercised, so
as to disqualify either the Plan or any Incentive Stock Option under Section 422
of the Code. Notwithstanding the foregoing, in the event an optionee voluntarily
disqualifies an option as an Incentive Stock Option within the meaning of
Section 422 of the Code, the Committee may, but shall not be obligated to, make
such additional grants, awards or bonuses as the Committee shall deem
appropriate, to reflect the tax savings to the Company which results from such
disqualification.
Stock Options granted under the Plan shall be subject to the following
terms and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable:
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(a) Option Price. The option price per share of Stock
purchasable under a Stock Option shall be determined by the Committee
at the time of grant but shall not be less than 100% of the Fair Market
Value of the Stock on the date of the grant of the Stock Option;
provided, however, if the Option is an Incentive Stock Option granted
to a Ten Percent Shareholder, the option price for each share of Stock
subject to such Incentive Stock Option shall be no less than one
hundred ten percent (110%) of the Fair Market Value of a share of Stock
on the date such Incentive Stock Option is granted.
(b) Option Term. The term of each Stock Option shall be fixed
by the Committee, provided that no Stock Option which is granted to a
Ten Percent Shareholder shall be exercisable more than five (5) years
after the date such Stock Option is granted and that no Stock Option
which is granted to an optionee that is not a Ten Percent Shareholder
shall be exercisable more than ten (10) years after the date such Stock
Option is granted.
(c) Exercisability. Subject to paragraph (j) of this Section 5
with respect to Incentive Stock Options, Stock Options shall be
exercisable at such time or times and subject to such terms and
conditions, including, without limitation, vesting conditions tied to
Stock price or other criteria, as shall be determined by the Committee
at grant. If the Committee provides, in its discretion, that any Stock
Option is exercisable only in installments, the Committee may waive
such installment exercise provision at any time in whole or in part
based on performance and/or such other factors as the Committee may
determine in its sole discretion.
(d) Method of Exercise. Stock Options may be exercised in
whole or in part at any time during the option period, by giving
written notice of exercise to the Company specifying the number of
shares to be purchased, accompanied by payment in full of the purchase
price, in cash, by check or such other instrument as may be acceptable
to the Committee. As determined by the Committee, in its sole
discretion, at or after grant, payment in full or in part may also be
made in the form of unrestricted Stock owned by the optionee or, in the
case of the exercise of a Non-Qualified Stock Option, Restricted Stock
subject to an award hereunder may be used for payment (based, in each
case, on the Fair Market Value of the Stock on the date the option is
exercised, as determined by the Committee). If payment of the option
exercise price of a Non-Qualified Stock Option is made in whole or in
part with shares of Restricted Stock the shares received upon the
exercise of such Stock Option shall be restricted or deferred, as the
case may be, in accordance with the original term of the Restricted
Stock award in question, except that the Committee may direct that such
restrictions or deferral provisions shall apply only to the number of
such shares equal to the number of shares of Restricted Stock
surrendered upon the exercise of such option. No shares of unrestricted
Stock shall be issued until full payment therefor has been made. An
optionee shall have the rights to dividends or other rights of a
stockholder with respect to shares subject to the option when the
optionee has given written notice of exercise and has paid in full for
such shares.
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(e) Non-transferability of Options. Except as otherwise set
forth in this Section 5(e), no Stock Option shall be transferable by
the Optionee otherwise than by will or by the laws of descent and
distribution. All Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee. The Committee shall have the
discretionary authority, however, to grant Non-Qualified Stock Options
which would be transferable to members of an optionee's immediate
family (which shall include, for purposes of this section, spouses and
children and grandchildren, whether natural or adopted), and to trusts
for the benefit of such family members and partnerships in which such
family members are the only partners. For purposes of paragraphs (f),
(g), (h) and (i) of this Section 5, a transferred option may be
exercised by the transferee only to the extent that the optionee would
have been entitled had the option not been transferred.
(f) Termination of Employment by Reason of Death. Unless
otherwise determined by the Committee, if any optionee's employment
with the Company, any Subsidiary, and any Affiliate terminates by
reason of death, the Stock Option may thereafter be immediately
exercised, to the extent then exercisable (or on such accelerated basis
as the Committee shall determine at or after grant), by the legal
representative of the estate or by the legatee of the optionee under
the will of the optionee, for a period of one (1) year from the date of
such death or until the expiration of the stated term of such Stock
Option, whichever period is the shorter.
(g) Termination of Employment by Reason of Disability. Unless
otherwise determined by the Committee, if any optionee's employment
with the Company, and Subsidiary and any Affiliate terminates by reason
of Disability, any Stock Option held by such optionee may thereafter be
exercised, to the extent it was exercisable at the time of termination
due to Disability (or on such accelerated basis as the Committee shall
determine at or after grant), but may not be exercised after one (1)
year from the date of such termination of employment or the expiration
of the stated term of such Stock Option, whichever period is the
shorter; provided, however, that, if the optionee dies within such
one-year period, any unexercised Stock Option held by such optionee
shall thereafter be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve months from the
date of such death or for the stated term of such Stock Option,
whichever period is the shorter. In the event of termination of
employment by reason of Disability, if an Incentive Stock Option is
exercised after the expiration of the exercise periods that apply for
purposes of Section 422 of the Code, such Stock Option will thereafter
be treated as a Non-Qualified Stock Option.
(h) Termination of Employment by Reason of Retirement. Unless
otherwise determined by the Committee, if any optionee's employment
with the Company, any Subsidiary and any Affiliate terminates by reason
of Normal or Early Retirement, any Stock Option held by such optionee
may thereafter be exercised to the extent it was exercisable at the
time of such Retirement (or on such accelerated basis as the Committee
shall determine at or after grant), but may not be exercised after one
(1) year from the date of such termination of employment or the
expiration of the stated term of such Stock
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<PAGE>
Option, whichever period is the shorter; provided, however, that if the
optionee dies within such one-year period any unexercised Stock Option
held by such optionee shall thereafter be exercisable, to the extent to
which it was exercisable at the time of death, for a period of twelve
months from the date of such death or for the stated term of the Stock
Option, whichever period is the shorter. In the event of termination of
employment by reason of Retirement, if an Incentive Stock Option is
exercised after the exercise periods that apply for purposes of Section
422 of the Code, such Stock Option will thereafter be treated as a
Non-Qualified Stock Option.
(i) Other Termination of Employment. Unless otherwise
determined by the Committee, if an optionee's employment with the
Company, any Subsidiary and any Affiliate terminates for any reason
other than death, Disability or Retirement, the Stock Option shall
thereupon terminate, except that such Stock Option may be exercised for
the lesser of three months from the date of termination or the balance
of such Stock Option's term if the optionee's employment with the
Company, and Subsidiary and any Affiliate is involuntarily terminated
by the optionee's employer without Cause.
(j) Limit on Value of Incentive Stock Option First Exercisable
Annually. The aggregate Fair Market Value (determined at the time of
grant) of the Stock for which Incentive Stock Options are exercisable
for the first time by an optionee during any calendar year under the
Plan (and/or any other stock option plans of the Company, any
Subsidiary and any Affiliate) shall not exceed $100,000.
SECTION 6. Stock Appreciation Rights.
(a) Grant and Exercise When Granted in Conjunction With Stock Options.
Stock Appreciation Rights may be granted in conjunction with all or part of any
Stock Option granted under the Plan and may contain terms and conditions
different from those of the related Stock Option, except as otherwise provided
below. In the case of a Non-Qualified Stock Option, such rights may be granted
either at or after the time of the grant of such Non-Qualified Stock Option. In
the case of an Incentive Stock Option, such rights may be granted only at the
time of the grant of such Incentive Stock Option.
A Stock Appreciation Right or applicable portion hereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that,
unless otherwise provided by the Committee at the time of grant, a Stock
Appreciation Right granted with respect to less than the full number of shares
covered by a related Stock Option shall only be reduced if and to the extent
that the number of shares covered by the exercise or termination of the related
Stock Option exceeds the number of shares not covered by the Stock Appreciation
Right.
A Stock Appreciation Right may be exercised by an optionee, in
accordance with paragraph (c) of this Section 6, by surrendering the applicable
portion of the related Stock Option. Upon such exercise and surrender, the
optionee shall be entitled to receive an amount
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determined in the manner prescribed in paragraph (c) of this Section 6. Stock
Options which have been so surrendered, in whole or in part, shall no longer be
exercisable to the extent the related Stock Appreciation Rights have been
exercised.
(b) Grant and Exercise When Granted Alone. Stock Appreciation Rights
may be granted at the discretion of the Committee in a manner not related to an
award of a Stock Option. The Stock Appreciation Right, granted under Section
6(b), shall be exercisable in accordance with Section 6(c) over a period not to
exceed ten years. Any Stock Appreciation Right which is outstanding on the last
day of the exercisable period shall be automatically exercised on such date for
cash or Common Stock, as determined by the Committee, without any action by the
holder.
(c) Terms and Conditions. Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the provisions of the Plan, as
shall be determined from time to time by the Committee, including the following:
(i) Stock Appreciation Rights granted pursuant to Section 6(a)
shall be exercisable only at such time or times and to the extent that
the Stock Options to which the Stock Appreciation Rights relate shall
be exercisable in accordance with the provisions of Section 5 and this
Section 6 of the Plan.
(ii) Upon the exercise of a Stock Appreciation Right granted
pursuant to Section 6(a), an optionee shall be entitled to receive an
amount in cash or shares of Stock equal in value to the excess of the
Fair Market Value of one share of Stock over the option price per share
specified in the related Stock Option multiplied by the number of
shares in respect of which the Stock Appreciation Right shall have been
exercised, with the Committee having the right to determine the form of
payment. Upon the exercise of a Stock Appreciation Right granted
pursuant to Section 6(b), the holder shall be entitled to receive an
amount in cash or shares of Stock equal in value to the excess of the
Fair Market Value of one share of Stock over the Fair Market Value of
one share of Stock at the date the Stock Appreciation Right was granted
multiplied by the number of shares in respect of which the Stock
Appreciation Right shall have been exercised, with the Committee having
the right to determine the form of payment.
(iii) Stock Appreciation Rights shall be transferable only
when and to the extent that any underlying Stock Option would be
transferable under paragraph (e) of Section 5 of the Plan. Otherwise,
Stock Appreciation Rights shall not be transferable by the holder other
than by will or the laws of descent and distribution. Except as set
forth above, all Stock Appreciation Rights shall be exercisable, during
the holder's lifetime, only by the holder.
(iv) Upon the exercise of a Stock Appreciation Right granted
pursuant to Section 6(a), the Stock Option, or part thereof to which
such Stock Appreciation Right is related, shall be deemed to have been
exercised for the purpose of the limitation set
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forth in Section 3 of the Plan on the number of shares of Stock to be
issued under the Plan.
(v) A Stock Appreciation Right granted in connection with an
Incentive Stock Option pursuant to Section 6(a) may be exercised only
if and when the market price of the Stock subject to the Incentive
Stock Option exceeds the exercise price of such Stock Option.
(vi) In its sole discretion, the Committee may provide, at the
time of grant of a Stock Appreciation Right under this Section 6, that
such Stock Appreciation Right can be exercised only in the event of a
"Change of Control" and/or a "Potential Change of Control" (as defined
in Section 12 below).
(vii) The Committee, in its sole discretion, may also provide
that in the event of a "Change of Control" and/or a "Potential Change
of Control" (as defined in Section 12 below) the amount to be paid upon
the exercise of a Stock Appreciation Right shall be based on the
"Change of Control Price" (as defined in Section 12 below).
(viii) Any exercise by a participant of all or a portion of a
Stock Appreciation Right for cash, may only be made during the period
beginning on the third business day following the date of the Company's
release of its quarterly or annual summary statements of sales and
earnings to the public and ending on the twelfth business day following
such date; provided, however, that the foregoing shall not apply to any
exercise by a participant of a Stock Appreciation Right for cash where
the date of exercise is automatic or fixed in advance under the Plan
and is outside the control of the participant.
SECTION 7. Restricted Stock.
(a) Administration. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Committee shall
determine the officers and key employees of the Company and its Subsidiaries and
Affiliates to whom, and the time or times at which, grants of Restricted Stock
will be made, the number of shares to be awarded, the price, if any, to be paid
by the recipient of Restricted Stock (subject to Section 7(b) hereof), the time
or times within which such awards may be subject to forfeiture, and all other
conditions of the awards. However, in no event shall any restriction, including
risk of forfeiture, attach to the Restricted Stock for a term to exceed ten
years from the date such Stock was granted. The Committee may also condition the
grant of Restricted Stock upon the attainment of specified performance goals, or
such other criteria as the Committee may determine, in its sole discretion. The
provisions of Restricted Stock awards need not be the same with respect to each
recipient.
(b) Awards and Certificates. The prospective recipient of an award of
shares of Restricted Stock shall not have any rights with respect to such award,
unless and until such recipient has executed an agreement evidencing the award
(a "Restricted Stock Award
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Agreement") and has delivered a fully executed copy thereof to the Company, and
has otherwise complied with the then applicable terms and conditions.
(i) Awards of Restricted Stock must be accepted within a
period of 60 days (or such shorter period as the Committee may specify)
after the award date by executing a Restricted Stock Award Agreement
and paying whatever price, if any, is required.
(ii) Each participant who is awarded Restricted Stock shall be
issued a stock certificate in respect of such shares of Restricted
Stock.
Such certificate shall be registered in the name of the participant,
and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such award, substantially in
the following form:
"The transferability of this certificate and the
shares of stock represented hereby are subject to the terms
and conditions (including forfeiture) of the Birmingham Steel
Corporation 1997 Management Incentive Plan and a Restricted
Stock Agreement entered into between the registered owner and
Birmingham Steel Corporation. Copies of such Plan and
Agreement are on file in the offices of Birmingham Steel
Corporation, 1000 Urban Center Drive, Suite 300, Birmingham,
Alabama 35242-2516."
(iii) The Committee shall require that the stock certificates
evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the participant shall have delivered a stock
power, endorsed in blank, relating to the Stock covered by such award.
(c) Restrictions and Conditions. The shares of Restricted Stock awarded
pursuant to this Section 7 shall be subject to the following restrictions and
conditions:
(i) Subject to the provisions of this Plan and Restricted
Stock Award Agreements, during the period established by the Committee
in which the Restricted Stock is subject to forfeiture (the
"Restriction Period"), the participant shall not be permitted to sell,
transfer, pledge or assign shares of Restricted Stock awarded under the
Plan. Within these limits, the Committee may, in its sole discretion,
provide for the lapse of such restrictions in installments and may
accelerate or waive such restrictions in whole or in part based on
performance and/or such other factors as the Committee may determine,
in its sole discretion.
(ii) Except as provided in paragraph (c)(i) of this Section 7,
the participant shall have, with respect to the shares of Restricted
Stock, all of the rights of a stockholder of the Company, including the
right to receive any dividends.
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<PAGE>
Dividends paid in cash with respect to shares of Restricted
Stock shall not be subject to any restrictions or subject to
forfeiture. Dividends paid in stock of the Company or stock received in
connection with a stock split with respect to Restricted Stock shall be
subject to the same restrictions as on such Restricted Stock.
Certificates for shares of unrestricted Stock shall be delivered to the
participant promptly after, and only after, the period of forfeiture
shall expire without forfeiture in respect of such shares of Restricted
Stock.
(iii) Subject to the provisions of the Restricted Stock Award
Agreement and this Section 7, upon termination of employment for any
reason during the Restriction Period, all shares still subject to
restriction shall be forfeited by the participant, and the participant
shall only receive the amount, if any, paid by the participant for such
forfeited Restricted Stock.
(iv) In the event of special hardship circumstances of a
participant whose employment is involuntarily terminated (other than
for Cause), the Committee may, in its sole discretion, waive in whole
or in part any or all remaining restrictions with respect to such
participant's shares of Restricted Stock.
SECTION 8. Performance Awards.
(a) Administration. Shares of Common Stock or a payment in cash may be
distributed under the Plan upon the attainment of achievement objectives to an
employee as a Performance Award. The Committee shall determine the officers and
key employees of the Company and its Subsidiaries and Affiliates to whom the
Performance Award is granted, the terms and conditions of the achievement
objectives, the term of the performance period and the level and form of the
payment of the Performance Award.
(b) Achievement Objectives. The Committee, at its sole discretion may
establish, under this Section 8, achievement objectives either in terms of
Company-wide objectives or in terms of objectives that are related to the
specific performance of the employee or the division, subsidiary, department or
function within the Company in which the employee is employed. A minimum level
of acceptance, at the discretion of the Committee, may be established.
If at the end of the performance period the specified objectives have
been attained, the employee is deemed to have fully earned the Performance
Award. If such achievement objectives have not been attained, the employee is
deemed to have partly earned the Performance Award and becomes eligible to
receive a portion of the total award, as determined by the Committee. If a
required minimum level of achievement has not been met, the employee is entitled
to no portion of the Performance Award. Subject to Section 8(d) below, the
Company may adjust the payment of awards or the achievement objectives if events
occur or circumstances arise which would cause a particular payment or set of
achievement objectives to be inappropriate as a measure of performance.
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<PAGE>
(c) Terms and Conditions. An employee to whom a Performance Award has
been granted is given achievement objectives to be reached over a specified
period, referred to herein as the "performance period". Generally this period
shall be not less than 1 year but in no case shall the period exceed 5 years.
An employee granted a Performance Award pursuant to this Section 8 who
by reason of death, disability or retirement terminates employment before the
end of the performance period is entitled to receive a portion of any earned
Performance Award.
An employee who terminates employment for any other reason forfeits all
rights under the Performance Award.
(d) Section 162(m) Provisions. Unless otherwise determined by the
Committee, achievement objectives established for the top five most highly
compensated officers of the Company shall be pre-established objective
performance goals within the meaning of Section 162(m) of the Code and treasury
regulations promulgated thereunder. Furthermore, unless otherwise determined by
the Committee, once the Committee has established one or more achievement
objectives with respect to a Performance Award granted to one of the top five
most highly compensated officers of the Company which were, when granted,
intended to be pre-established objective performance goals within the meaning of
Section 162(m) of the Code and the treasury regulations thereunder, the
Committee shall not waive or alter the targets after the earlier of (i) the
expiration of twenty-five percent (25%) of the performance period or (ii) the
date on which the outcome under the objectives is substantially certain. Unless
otherwise determined by the Committee, if any provision of the Plan or any
Performance Award granted to an individual who is one of the top five most
highly compensated officers of the Company hereunder would disqualify the
Performance Award with respect to such individual, or would otherwise not comply
with Section 162(m) of the Code, such provision or Performance Award shall be
construed or deemed amended to conform to Section 162(m) of the Code.
SECTION 9. Loan Provisions.
With the consent of the Committee, the Company may make, or arrange
for, a loan or loans to an employee with respect to the exercise of any Stock
Option granted under the Plan and/or with respect to the payment of the purchase
price, if any, of any Restricted Stock awarded hereunder. The Committee shall
have full authority to decide whether to make a loan or loans hereunder and to
determine the amount, term and provisions of any such loan or loans, including
the interest rate to be charged in respect of any such loan or loans, whether
the loan or loans are to be with or without recourse against the borrower, the
terms on which the loan is to be repaid and the conditions, if any, under which
the loan or loans may be forgiven.
SECTION 10. Amendments and Termination.
The Board may amend, alter, or discontinue the Plan as it shall deem
advisable or to conform to any change in any applicable law or regulation
applicable thereto (including, without
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limitation, applicable federal securities laws and regulations and applicable
federal income tax laws and regulations); provided, however, that no amendment,
alteration, or discontinuation shall be made which would impair the right of an
optionee or participant under a Stock Option, Stock Appreciation Right,
Restricted Stock, or Performance Award theretofore granted, without the
optionee's or participant's consent, or which without the approval of the
stockholders would:
(a) except as expressly provided in this Plan, increase the
total number of shares reserved for the purpose of the Plan;
(b) decrease the option price of any Stock Option to less than
100% of the Fair Market Value on the date of the granting of the
option;
(c) change the participants or class of participants eligible
to participate in the Plan; or
(d) extend the maximum option period under paragraph (b) of
Section 5 of the Plan.
The Committee may amend the terms of any award or option theretofore
granted, prospectively or retroactively, but no such amendment shall impair the
rights of any holder without his or her consent. The Committee may also
substitute new Stock Options for previously granted Stock Options including
options granted under other plans applicable to the participant and previously
granted Stock Options having higher option prices. Notwithstanding any provision
of this Plan or this Section 10, neither the Board nor the Committee may amend
the Plan or the terms of any Stock Option, award or grant to decrease the
exercise price of any Stock Option to less than 100% of the Fair Market Value of
the underlying shares on the date of the granting of the option.
SECTION 11. Unfunded Status of Plan.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Company, nothing set forth herein shall give any
such participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payment in lieu of or with respect to awards
hereunder; provided, however, that the existence of such trusts or other
arrangements shall be consistent with the unfunded status of the Plan.
SECTION 12. Change of Control.
The following acceleration and valuation provisions shall apply in the
event of a "Change of Control" or "Potential Change of Control," as defined in
this Section 12:
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(a) In the event of a "Change of Control" as defined in paragraph (b)
of this Section 12, unless otherwise determined by the Committee or the Board in
writing at or after grant, but prior to the occurrence of such Change of
Control, or, if and to the extent so determined by the Committee or the Board in
writing at or after grant (subject to any right of approval expressly reserved
by the Committee or the Board at the time of such determination) in the event of
a "Potential Change of Control," as defined in paragraph (c) of this Section 12:
(i) any Stock Appreciation Rights and any Stock
Options awarded under the Plan, if not previously exercisable
and vested shall become fully exercisable and vested;
(ii) the restrictions and deferral limitations
applicable to any Restricted Stock award under the Plan shall
lapse and such shares and awards shall be deemed fully vested;
and
(iii) the value of all outstanding Stock Options,
Stock Appreciation Rights, Restricted Stock or Performance
Awards shall, to the extent determined by the Committee at or
after grant, be cashed out on the basis of the "Change of
Control Price" (as defined in paragraph (d) of this Section
12) as of the date the Change of Control occurs or Potential
Change of Control is determined to have occurred, or such
other date as the Committee may determine prior to the Change
of Control or Potential Change of Control. In the sole
discretion of the Committee, such settlements may be in cash,
in stock, or other consideration as shall be necessary to
effect the desired accounting treatment for the transaction
resulting from the "Change of Control."
(b) For purpose of paragraph (a) of this Section 12, a "Change of
Control" means the happening of any of the following:
(i) when any "person", as such term is used in
Section 13(d) and 14(d) of the Exchange Act (other than the
Company or a Subsidiary or any Company employee benefit plan
(including its trustee)), is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly of securities of the Company representing 20
percent or more of the combined voting power of the Company's
then outstanding securities;
(ii) when, during any period of two consecutive years
during the existence of the Plan, the individuals who, at the
beginning of such period, constitute the Board cease, for any
reason other than death, to constitute at least a majority
thereof, unless each director who was not a director at the
beginning of such period was elected by, or on the
recommendation of, at least two-thirds of the directors at the
beginning of such period; or
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<PAGE>
(iii) the occurrence of a transaction requiring
stockholder approval for the acquisition of the Company by an
entity other than the Company or a Subsidiary through purchase
of assets, or by merger, or otherwise.
(c) For purposes of paragraph (a) of this Section 12, a "Potential
Change of Control" means the happening of any of the following:
(i) the entering into an agreement by the Company,
the consummation of which would result in a Change of Control
of the Company as defined in paragraph (b) of this Section 12;
or
(ii) the acquisition of beneficial ownership,
directly or indirectly, by any entity, person or group (other
than the Company or a Subsidiary or any Company employee
benefit plan (including its trustee)) of securities of the
Company representing 5 percent or more of the combined voting
power of the Company's outstanding securities and the adoption
by the Board of Directors of a resolution to the effect that a
Potential Change of Control of the Company has occurred for
purposes of this Plan.
(d) For purposes of this Section 12, "Change of Control Price" means
the highest price per share paid in any transaction reported on the New York
Stock Exchange Composite Tape, or paid or offered in any transaction related to
a potential or actual Change of Control of the Company at any time during the
preceding sixty (60) day period as determined by the Committee, except that in
the case of Incentive Stock Options and Stock Appreciation Rights relating to
Incentive Stock Options, such price shall be based only on transactions reported
for the date on which the Committee decides to cash out such options.
SECTION 13. General Provisions.
(a) All certificates for shares of Stock delivered under the Plan shall
be subject to such stock transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations and other requirements of the
Commission, any stock exchange upon which the Stock is then listed, and any
applicable Federal or state securities law, and the Committee may cause a legend
or legends to be put on any such certificates to make appropriate reference to
such restrictions.
(b) Nothing set forth in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required; and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of the
Plan shall not confer upon any employee of the Company, any Subsidiary or any
Affiliate, any right to continued employment with the Company, a Subsidiary or
an Affiliate, as the case may be, nor shall it interfere in any way with the
right of the Company, a Subsidiary or an Affiliate to terminate the employment
of any of its employees at any time.
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(c) No employee shall have any rights as a shareholder of the Company
as a result of the grant of a Stock Option to him or to her under this Plan or
his or her exercise of such Stock Option pending the actual issuance of Stock
subject to such Stock Option to such employee.
(d) Each participant shall, no later than the date as of which the
value of an award first becomes includable in the gross income of the
participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Committee regarding payment of, any Federal,
state, or local taxes of any kind required by law to be withheld with respect to
the award. The obligations of the Company under the Plan shall be conditional on
such payment or arrangements and the Company (and, where applicable, its
Subsidiaries and Affiliates), shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
participant. Subject to applicable laws and regulations regarding transactions
in Company Stock by persons who are deemed insiders, a participant may elect to
have the withholding tax obligations or, in the case of all awards hereunder
except Stock Options which have related Stock Appreciation Rights, if the
Committee so determines, any additional tax obligation with respect to any
awards hereunder satisfied by (a) having the Company withhold shares of Stock
otherwise deliverable to the participant with respect to the award or (b)
delivering to the Company shares of unrestricted Stock.
(e) At the time of grant or purchase, the Committee may provide in
connection with any grant or purchase made under this Plan that the shares of
Stock received as a result of such grant or purchase shall be subject to a right
of first refusal, pursuant to which the participant shall be required to offer
the Company any shares that the participant wishes to sell, with the price being
the then Fair Market Value of the Stock, subject to provisions of Section 13
hereof and to such other terms and conditions as the Committee may specify at
the time of grant.
(f) No member of the Board or the Committee, nor any officer or
employee of the Company acting on behalf of the Board or the Committee, shall be
personally liable for any action, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the Board or the
Committee and each and any officer or employee of the Company acting on their
behalf shall, to the extent permitted by law, be fully indemnified and protected
by the Company in respect of any such action, determination or interpretation.
(g) If any provision of the Plan or any agreement representing an award
granted hereunder is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any person or award, or would
disqualify the Plan or any award granted hereunder under any law deemed
applicable by the Committee, such provision shall be construed or deemed amended
to conform to the applicable laws, or if it cannot be construed or deemed
amended without, in the determination of the Committee, materially altering the
intent of the Plan or the award, such provision shall be stricken as to such
jurisdiction, person or award and the remainder of the Plan and any such award
shall remain in full force and effect.
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(h) Each award under the Plan shall be subject to the requirement that,
if at any time the Committee shall determine that (a) the listing, registration
or qualification of the shares of Stock subject or related thereto upon any
securities exchange or under any state or federal law, or (b) the consent or
approval of any government regulatory authority, or (c) an agreement by the
recipient of an award with respect to the disposition of shares of Stock, is
necessary or desirable as a condition of, or in connection with, the granting of
such award or the issue or purchase of shares of Stock thereunder, such award
may not be consummated in whole or in part unless such listing, registration,
qualification, consent, approval or agreement shall have been effected or
obtained free of any conditions not acceptable to the Committee. A participant
shall agree, as a condition of receiving any award under the Plan, to execute
any documents, make any representations, agree to restrictions on stock
transferability and take any actions which in the opinion of legal counsel to
the Company is required by any applicable law, ruling or regulation.
(i) Nothing in the Plan shall affect the right or power of the Company
or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Stock or the rights thereof or which are convertible into or
exchangeable for Stock, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
(j) Headings are given to the sections and subsections of the Plan
solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
SECTION 14. Effective Date of Plan.
The effective date of this Plan shall be the date it is adopted by the
Board; provided that the shareholders of the Company shall approve the Plan
within twelve (12) months after the date of adoption; and, provided further,
that any awards granted under this Plan before the date of such shareholder
approval shall be granted subject to such approval.
SECTION 15. Term of Plan.
No Stock Option, Stock Appreciation Right, Restricted Stock or
Performance Award shall be granted pursuant to the Plan on or after the tenth
anniversary of the date of stockholder approval, but awards theretofore granted
may extend beyond that date.
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[BALCH & BINGHAM LLP LETTERHEAD]
Exhibit 5.1
February 23, 1998
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 900,000 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
<PAGE>
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 1997
Management Incentive Plan of our report dated August 6, 1997, 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, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
February 18, 1998
<PAGE>
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 900,000 shares of the Company's common stock for
issuance under the Company's 1997 Management Incentive 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
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 13th day of January, 1998.
/s/ E. Mandell de Windt
----------------------------
E. Mandell de Windt
/s/ Robert A. Garvey
----------------------------
Robert A. Garvey
/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/ J. Daniel Garrett
----------------------------
J. Daniel Garrett
