-----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, JWDj061/GZBNvb3T6yEIC2NXSUJ9ZnIMcFSnHF7Wdfv7x+SM+Y/Gn5bcYgkFV0gC W4VDRS4iiXPWDHCJ8RAx+Q== 0000950138-00-000011.txt : 20000203 0000950138-00-000011.hdr.sgml : 20000203 ACCESSION NUMBER: 0000950138-00-000011 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000202 EFFECTIVENESS DATE: 20000202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KENTUCKY ELECTRIC STEEL INC /DE/ CENTRAL INDEX KEY: 0000910394 STANDARD INDUSTRIAL CLASSIFICATION: STEEL WORKS, BLAST FURNACES ROLLING MILLS (COKE OVENS) [3312] IRS NUMBER: 611244541 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-95999 FILM NUMBER: 520471 BUSINESS ADDRESS: STREET 1: P O BOX 3500 CITY: ASHLAND STATE: KY ZIP: 41105-3500 BUSINESS PHONE: 6069291222 MAIL ADDRESS: STREET 1: P O BOX 3500 CITY: ASHLAND STATE: KY ZIP: 41105-3500 S-8 1 FORM S-8 RE: 1998 EMPLOYEE STOCK OPTION PLAN 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)
CALCULATION OF REGISTRATION FEE ============================================================================================= 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 ============================================================================================= (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.
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 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 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 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 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 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 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.
Signature Title /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
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). EX-5.1 2 OPINION OF BRYAN CAVE 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 EX-23.1 3 CONSENT OF ARTHUR ANDERSEN 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 -----END PRIVACY-ENHANCED MESSAGE-----