-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MwFYR6SHM3yvP/iJBGHC9tu7kW6cpB6S95pefbc4fXVzFaXcXYjMguq56pYC4EbK oVKMeNjYU3RrltovwqpsfA== 0000011860-98-000009.txt : 19980619 0000011860-98-000009.hdr.sgml : 19980619 ACCESSION NUMBER: 0000011860-98-000009 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980618 EFFECTIVENESS DATE: 19980618 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: BETHLEHEM STEEL CORP /DE/ CENTRAL INDEX KEY: 0000011860 STANDARD INDUSTRIAL CLASSIFICATION: STEEL WORKS, BLAST FURNACES ROLLING MILLS (COKE OVENS) [3312] IRS NUMBER: 240526133 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57157 FILM NUMBER: 98650367 BUSINESS ADDRESS: STREET 1: 1170 EIGHTH AVE CITY: BETHLEHEM STATE: PA ZIP: 18016-7699 BUSINESS PHONE: 6106843745 MAIL ADDRESS: STREET 1: 1170 EIGHTH AVE CITY: BETHLEHEM STATE: PA ZIP: 18016-7699 S-8 1 FORM S-8, BETHLEHEM STEEL CORPORATION 1 As filed with the Securities and Exchange Commission on June 18, 1998 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 BETHLEHEM STEEL CORPORATION (Exact name of Registrant as specified in its charter) Delaware 24-0526133 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1170 Eighth Avenue Bethlehem, Pennsylvania 18016-7699 (610) 694-2424 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) 1998 STOCK INCENTIVE PLAN OF BETHLEHEM STEEL CORPORATION (Full title of the plan) WILLIAM H. GRAHAM, ESQ. Bethlehem Steel Corporation 2018 Martin Tower 1170 Eighth Avenue Bethlehem, PA 18016-7699 (610) 694-7430 (Name, address, including zip code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE
=========================================================================================== Proposed Proposed Title Of Amount Maximum Maximum Amount Of Securities To To Be Offering Price Aggregate Registration Be Registered Registered Per Unit (1) Offering Price (1) Fee ============= ========== ============== ================== ============ Common Stock 5,000,000 shares $11.25 $56,250,000 $16,593.75 Preference Stock Purchase Rights (2) 5,000,000 rights N/A N/A N/A ===========================================================================================
(1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(h)(1) under the Securities Act of 1933 on the basis of the average of the high and low prices ($11.25 per share) of the Registrant's Common Stock on the New York Stock Exchange Composite Tape on June 15, 1998. (2) Rights are evidenced by certificates for shares of the Common Stock and automatically trade with such Common Stock. The value attributable to such Rights, if any, is reflected in the market price of the Common Stock. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. Bethlehem Steel Corporation ("Bethlehem") has filed the following documents with the SEC, which are incorporated in this document by reference: (i) Bethlehem's Annual Report on Form 10-K for the year ended December 31, 1997, file number 1-1941, (ii) all other reports filed by Bethlehem pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December 31, 1997, (iii) the description of the Series A Junior Participating Preference Stock, par value $1.00 per share, of Bethlehem set forth in Bethlehem's Form 8-A/A dated January 12, 1996, file number 1-1941, and (iv) the description of shares of Bethlehem Common Stock set forth in Bethlehem's registration statement on Form S-3 dated March 8, 1994, Registration Statement number 33-52209. All documents filed by Bethlehem pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and 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 herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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. Any 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. Interests of Named Experts and Counsel. The validity of the shares of Common Stock to be issued pursuant to the Plan will be passed upon for Bethlehem by William H. Graham, Esq., General Counsel of Bethlehem. Mr. Graham is paid a salary by Bethlehem, is a participant in various employee benefit plans offered to employees of Bethlehem generally and owns and has options to purchase shares of Bethlehem Common Stock. Item 6. Indemnification of Directors and Officers. The following discussion is a summary of certain provisions relating to indemnification of officers and directors of the Bethlehem Second Restated Certificate of Incorporation, Bethlehem By-laws, Bethlehem's Indemnification Assurance Agreements and the General Corporation Law of the State of Delaware (the "DGCL"). Reference is made to, and this summary is qualified in its entirety by, such Second Restated Certificate of Incorporation, By-laws, Indemnification Assurance Agreements and the DGCL. Section 145 of the DGCL: (i) gives Delaware corporations broad powers to indemnify their present and former directors and officers and those of affiliated corporations against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with threatened, pending or completed actions, suits or proceedings to which they are parties or are threatened to be made parties by reason of being or having been such directors or officers, subject to specified - 2 - conditions and exclusions; (ii) gives a director or officer who successfully defends an action the right to be so indemnified; and (iii) permits a corporation to buy directors' and officers' liability insurance. Such indemnification is not exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or otherwise. It is and has been Bethlehem's policy to indemnify its officers and directors against any costs, expenses and other liabilities to which they may become subject by reason of their service to Bethlehem, and to insure its directors and officers against such liabilities, as and to the extent permitted by applicable law and in accordance with the principles of good corporate governance. In this regard, Article IX of the Bethlehem By-laws requires Bethlehem to indemnify its directors and officers to the maximum extent permitted by the DGCL. Pursuant to this policy, Bethlehem has entered into individual Indemnification Assurance Agreements with each of its directors and executive officers pursuant to which Bethlehem has agreed to indemnify each of its directors and executive officers to the full extent provided by applicable law and the Bethlehem By-laws as currently in effect. In addition, Bethlehem has established in connection with its indemnification policy an irrevocable letter of credit in an aggregate amount of $5 million to assure payment to each director and executive officer of any amounts to which they may become entitled as indemnification pursuant to the Bethlehem By-laws in the event that, for any reason, Bethlehem shall not pay to them any such amounts. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling Bethlehem pursuant to the foregoing provisions, Bethlehem has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and therefore unenforceable. Bethlehem maintains insurance policies insuring its directors and officers against certain losses incurred by them as a result of claims based upon their actions or statements (including omissions to act or to make statements) as directors and officers. The aggregate amount payable for individual directors and officers under such policies in any policy year is limited to $75 million. After certain deductibles, Bethlehem is entitled to reimbursement of up to $50 million under such policies in connection with its indemnification of directors and officers. Bethlehem also maintains an insurance policy insuring those individuals who are fiduciaries, as defined by the Employee Retirement Income Security Act of 1974, under certain employee benefit plans of Bethlehem and its subsidiaries against certain losses incurred by them as a result of claims based on their responsibilities, obligations and duties under such Act. This fiduciary policy is subject to certain deductibles and has an annual aggregate limit of $30 million. Section 102(b)(7) of the DGCL permits a Delaware corporation to include in its certificate of incorporation a provision eliminating monetary liability of a director to the corporation or its stockholders for breach of fiduciary duty as a director, provided that such provision shall not eliminate the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for unlawful payment of dividends or unlawful stock purchase or redemption or (iv) for any transaction from which the director receives an improper personal benefit. Article Ninth of the Bethlehem Second Restated Certificate of Incorporation includes such a provision. Item 7. Exemption from Registration Claimed. Not applicable. - 3 - Item 8. Exhibits. The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. 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 this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act 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 that remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in - 4 - 5 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. - 5 - 6 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 Bethlehem and Commonwealth of Pennsylvania, on the 28th day of April, 1998. BETHLEHEM STEEL CORPORATION Registrant By /s/ Lonnie A. Arnett ------------------------------- Lonnie A. Arnett Vice President and Controller Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on the 28th day of April, 1998.
Signatures Title ========== ===== /s/ Curtis H. Barnette Director, Chairman and ------------------------- Chief Executive Officer Curtis H. Barnette (principal executive officer) /s/ Gary L. Millenbruch Director, Executive Vice ------------------------- President and Treasurer Gary L. Millenbruch (principal financial officer) /s/ Lonnie A. Arnett Vice President and ------------------------- Controller (principal Lonnie A. Arnett accounting officer) /s/ Benjamin R. Civiletti Director ------------------------- Benjamin R. Civiletti /s/ Worley H. Clark Director ------------------------- Worley H. Clark /s/ John B. Curcio Director ------------------------- John B. Curcio
- 6 - 7
/s/ Lewis B. Kaden Director ------------------------- Lewis B. Kaden /s/ Harry P. Kamen Director ------------------------- Harry P. Kamen /s/ Robert McClements, Jr. Director -------------------------- Robert McClements, Jr. /s/ Roger P. Penny Director -------------------------- Roger P. Penny /s/ Shirley D. Peterson Director -------------------------- Shirley D. Peterson /s/ Dean P. Phypers Director -------------------------- Dean P. Phypers /s/ John F. Ruffle Director -------------------------- John F. Ruffle
- 7 - 8 EXHIBIT INDEX Exhibit Number Description - ------- -----------
4(a) Rights Agreement, dated as of September 28, 1988, between Bethlehem Steel Corporation and Morgan Shareholder Services Trust Company (Incorporated by reference from Exhibit 4(a) to Bethlehem's Annual Report on Form 10-K for the fiscal year ended December 31, 1993). 4(b) Amendment to Rights Agreement, dated as of November 1, 1995, between Bethlehem Steel Corporation and First Chicago Trust Company of New York (formerly Morgan Shareholder Services Trust Company) (Incorporated by reference from Exhibit 4(a) to Bethlehem's Annual Report Form 10-K for the fiscal year ended December 31, 1995). 4(c) Bethlehem is a party to certain long-term debt agreements where the amount involved does not exceed 10% of Bethlehem's total consolidated assets. Bethlehem agrees to furnish a copy of any such agreement to the Commission upon request. 4(d) Form of Common Stock Certificate (Incorporated by reference from Exhibit 4(e) to Bethlehem's Registration Statement on Form S-3 (No. 33-48697)). 5 Opinion of William H. Graham, Esq. 23(a) Consent of William H. Graham, Esq. (included in Exhibit 5) 23(b) Consent of Price Waterhouse LLP
- 8 - EX-5 2 OPINION OF WILLIAM H. GRAHAM, ESQ. 1 Exhibit 5 Bethlehem Steel Corporation June 18,1998 Board of Directors Bethlehem Steel Corporation Bethlehem, PA 18016-7699 I am General Counsel of Bethlehem Steel Corporation, a Delaware corporation ("Bethlehem"). In that capacity, I have reviewed the Registration Statement on Form S-8 (the "Registration Statement") dated as of the date of this opinion and to be filed by Bethlehem with the Securities and Exchange Commission with respect to offers and sales by Bethlehem of up to 5,000,000 shares of Bethlehem Common Stock, par value $1 per share ("Common Stock"), under the 1998 Stock Incentive Plan of Bethlehem Steel Corporation (the "Plan"). As General Counsel, I am familiar with Bethlehem's Second Restated Certificate of Incorporation and its By-laws, as amended. I have also examined such other documents, corporate records and instruments as I have deemed necessary or appropriate for the purposes of this opinion. Based upon the foregoing, I am of the opinion that any shares of Common Stock reserved for issuance under the Plan will, when issued in accordance with the terms of the Plan, be validly issued, fully paid and non-assessable. I am admitted to practice in the Commonwealth of Pennsylvania, and I express no opinion herein as to any matters governed by any law other than the law of the Commonwealth of Pennsylvania, the corporate law (including without limitation the General Corporation Law) of the State of Delaware and the Federal law of the United States of America. I hereby consent to the filing of this opinion with the Securities and Exchange Commission as Exhibit 5 to the Registration Statement. Very truly yours, /s/ William H. Graham --------------------- William H. Graham General Counsel EX-23.B 3 CONSENT OF INDEPENDENT AUDITORS Exhibit 23(b) CONSENT OF INDEPENDENT AUDITORS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 28, 1998, which appears on page 25 of the 1997 Annual Report to Stockholders of Bethlehem Steel Corporation, which is incorporated by reference in Bethlehem Steel Corporation's Annual Report on Form 10-K for the year ended December 31, 1997. We also consent to the incorporation by reference of our report on the Financial Statement Schedule, which appears on page F-1 of such Annual Report on Form 10-K. /s/ Price Waterhouse LLP - --------------------------- 1177 Avenue of the Americas New York, NY 10036 June 18, 1998 -----END PRIVACY-ENHANCED MESSAGE-----