As Filed with the Securities and Exchange Commission on February 2, 2000
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
KENTUCKY ELECTRIC STEEL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
61-1244541
(I.R.S. Employer Identification No.)
P.O. Box 3500
Ashland, Kentucky 41105-3500
(Address, including zip code, of registrant's
principal executive offices)
1998 Employee Stock Option/Restricted Stock Plan
(Full Title of the Plan)
William J. Jessie
Vice President, Secretary, Treasurer and Chief Financial Officer
Kentucky Electric Steel, Inc.
P.O. Box 3500
Ashland, Kentucky 41105
(606) 929-1222
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================
<S> <C> <C> <C> <C>
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered(1) Registered Per Share(2) Offering Price(2) Fee
=============================================================================================
Common Stock and
Preferred Stock 245,000 Shares(3) $2.52 $617,400 $163
Purchase Rights
=============================================================================================
<FN>
(1) Preferred Stock Purchase Rights are attached to and trade with the Common
Stock, par value $.01 per share, of the Registrant (the "Common Stock").
Value attributable to such Preferred Stock Purchase Rights, if any, is
reflected in the market price of the Common Stock.
(2) Computed pursuant to Rules 457(h) and 457(c) under the Securities Act of
1933 solely for the purpose of determining the registration fee. The
proposed maximum aggregate offering price is computed upon the basis of
the average high and low price of the Registrant's common stock reported
in the consolidated reporting system as of January 26, 2000.
(3) This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to antidilution provisions.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Kentucky Electric Steel, Inc.
("Kentucky Electric Steel," the "Company" or the "Registrant") pursuant to the
Securities Exchange Act of 1934 ("1934 Act") (File No. 000-22416) are
incorporated by reference into this Registration Statement:
(a) Annual Report on Form 10-K for the year ended
September 25, 1999.
(b) None.
(c) (i) The description of Kentucky Electric Steel's
Common Stock as contained in the
Registrant's 1934 Act Registration Statement
on Form 8-A dated and filed September 20,
1993, including any amendment or report
filed for the purpose of updating such
description.
(ii) The description of Kentucky Electric Steel's
Preferred Stock Purchase Rights which is
contained in the Registrants' 1934 Act
Registration Statement on Form 8-A/A dated
February 27, 1996 and filed March 1, 1996,
including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by Kentucky Electric Steel
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated herein by reference
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 or is deemed to be incorporated by
reference herein modifies or supersedes such statement.
Item 4. Description of Securities.
The securities to be offered are registered under Section
12(g) of the 1934 Act.
II-1
<PAGE>
Item 5. Interest of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
(a) Section 145 of the Delaware General Corporation Law (the
"DGCL") permits indemnification against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by officers or directors of a corporation in connection with actions, suits or
proceedings in which such officers or directors are or were parties or are
threatened to be made parties to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that such persons are or were directors or officers of the corporation, or
are or were serving at the request of the corporation as directors or officers
of another corporation, partnership, joint venture, trust or other enterprise,
if the person acted in good faith and in a manner the person 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
the person's conduct was unlawful. However, in connection with actions by or in
the right of the corporation, indemnification is not permitted if such person
has been adjudged liable to the corporation unless the court determines that,
under all of the circumstances, such person is nonetheless fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Section 145 also permits a corporation to purchase and
maintain insurance on behalf of its directors against any liability that may be
asserted against, or incurred by, such persons in their capacities as directors
or officers of the corporation whether or not that corporation would have the
power to indemnify such person against liabilities under the provisions of
Section 145. The directors and officers of the Company are covered under such an
insurance policy. Section 145 further provides that the statutory provision is
not exclusive of any other right to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or independent directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
office.
(b) Pursuant to Section 102(b)(7) of the DGCL, the Company's
Certificate of Incorporation limits the personal liability of each of the
Company's directors for monetary damages for breaches of fiduciary duty as a
director except (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
(c) Article VII of the Company's By-Laws provides that the
Company will indemnify any persons, including officers and directors, who are,
or are threatened to be made, parties to any threatened, pending or completed
II-2
<PAGE>
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Company), by
reason of the fact that such person is or was an officer or director of the
Company, or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity
includes 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, provided such officer or director acted in good
faith and in a manner such reasonably believed to be in or not opposed to the
Company's best interests and, for criminal proceedings, had no reasonably cause
to believe that such conduct was unlawful. The Company also is required to
indemnify officers and directors against expenses (including reasonably
attorneys' fees) actually and reasonably incurred in an action by or in the
right of the Company 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 Company. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the Company
must indemnify such person against the expenses which such officer or director
actually reasonably incurred.
(c) The Company has entered into a contract with each of its
officers and directors requiring the Company to indemnify such persons and to
advance litigation expenses to such persons to the fullest extent permitted by
applicable law (which is discussed above in the first subsection of this Item
6). The contract also requires the Company to (i) indemnify such officers and
directors upon receipt of an opinion of counsel in certain cases, (ii) pay
indemnity demands pending and determination of entitlement thereto, and (iii)
demonstrate, in any action brought hereunder, that such officer or director was
not entitled to indemnification under applicable law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the registration
statement (or the most recent post-effective amendment
II-3
<PAGE>
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in the registration statement or any material change
to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
II-4
<PAGE>
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ashland, Commonwealth of Kentucky, on February 1,
2000.
KENTUCKY ELECTRIC STEEL, INC.
By: /s/ Charles C. Hanebuth
---------------------------------------
Charles C. Hanebuth
President-and Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Charles C. Hanebuth, and William J. Jessie, and each of them,
severally, the undersigned's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to execute in the undersigned's
name, place and stead, any and all amendments (including post-effective
amendments) and supplements to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission. Each of such attorneys-in-fact and
agents shall have full power and authority to do and perform, in the name of and
on behalf of the undersigned, each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person. The undersigned hereby ratifies, confirms and approves all that
said attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities indicated on February 1, 2000.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Charles C. Hanebuth President and Chief Executive Officer and Director
- ---------------------------- (principal executive officer)
Charles C. Hanebuth
/s/ William J. Jessie Vice President-Finance and Chief Financial Officer
- ---------------------------- (Chief Accounting Officer)
William J. Jessie
/s/ Clifford R. Borland Director
- ----------------------------
Clifford R. Borland
/s/ David C. Struve Director
- ----------------------------
David C. Struve
/s/ Carl E. Edwards, Jr. Director
- ----------------------------
Carl E. Edwards, Jr.
/s/ J. Marvin Quin II Director
- ----------------------------
J. Marvin Quin II
</TABLE>
<PAGE>
KENTUCKY ELECTRIC STEEL, INC.
EXHIBIT INDEX
Exhibit
Number Description
-------------- ----------------------------------------------------------
4.1 Certificate of Incorporation of the Company, incorporated
by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (No. 33-67140) (the "Registration
Statement").
4.2 Bylaws of the Company, incorporated by reference to
Exhibit 3.2 to the Registration Statement.
4.3 Amended and Restated Rights Agreement, dated September 1,
1999, by and between the Company and EquiServe Trust
Company, N.A., incorporated by reference to Exhibit 4.8 to
the Company's Form 8-K filed on September 14, 1999.
5.1 Opinion of Counsel.
23.1 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in Signature Page).
EXHIBIT 5.1
[Letterhead of Bryan Cave LLP]
February 2, 2000
Board of Directors
Kentucky Electric Steel, Inc.
P.O. Box 3500
Ashland, Kentucky 41105-3500
Gentlemen:
We have acted as counsel to Kentucky Electric Steel, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, by means of a registration statement on Form
S-8 (the "Registration Statement") of 245,000 shares of the Company's common
stock, par value $.01 per share, including Preferred Stock Purchase Rights
attached thereto (the "Shares"), which may be issued pursuant to the Kentucky
Electric Steel, Inc. 1998 Employee Stock Option/Restricted Stock Plan (the
"Plan").
As counsel for the Company, we have examined such corporate records of the
Company, such other instruments and considered such other matters of law as we
deemed necessary for the purposes of this opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to the originals of all
documents submitted to us as copies. On the basis of the foregoing, we are of
the opinion that the Shares have been duly and validly authorized for issuance,
and when issued, delivered and paid for in accordance with the Plan, the Shares
will be legally issued, fully paid and non-assessable.
We are admitted to practice only in the State of Missouri and we express no
opinion concerning any law other than the law of the State of Missouri, the
corporation laws of the State of Delaware and the federal law of the United
States. With respect to matters of Delaware corporation law, our opinion is
based solely on a review of the statutory provisions of the General Corporation
Law of the State of Delaware and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/S/ BRYAN CAVE LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated October 27, 1999, included in Kentucky Electric Steel,
Inc.'s Form 10-K for the year ended September 25, 1999.
/s/ Arthur Andersen LLP
Cincinnati, Ohio
January 28, 2000
