As filed with the Securities and Exchange Commission on July 29, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
METALS USA, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 76-0533626
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4801 WOODWAY
SUITE 300E
HOUSTON, TEXAS 77056
(713) 964-2713
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
METALS USA, INC.
1997 LONG-TERM INCENTIVE PLAN
AND
METALS USA, INC.
1997 NON-EMPLOYEE DIRECTOR PLAN
(Full Title of Plans)
ARTHUR L. FRENCH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
METALS USA, INC.
4801 WOODWAY
SUITE 300E
HOUSTON, TEXAS 77056
(713) 964-2713
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
WILLIAM D. GUTERMUTH
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER, PENNZOIL PLACE
711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77002-2781
(713) 223-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum Proposed Amount of
Title of Amount to Offering Maximum Aggregate Registration Fee
Securities to be Registered be registered(1)(2) Price Per Share (3) Offering Price(3)
- ---------------------------------------- ------------------- ------------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 2,750,000 $10.8125 $29,734,375 $9,011
======================================== =================== =================== ================= ================
</TABLE>
(1) Pursuant to Rule 457(h)(1), the registration fee is calculated with
respect to the maximum number of the registrant's securities issuable
under the Metals USA, Inc. 1997 Long-Term Incentive Plan (the "Incentive
Plan") and the Metals USA, Inc. 1997 Non-Employee Director Plan (the
"Director Plan").
(2) The amount of securities registered hereby may exceed 2,750,000 shares of
Common Stock. The total number of shares of Common Stock subject to
incentive awards under the Director Plan is 250,000, subject to adjustment
from time to time as a result of certain anti-dilution provisions
contained in such plan. The total number of shares of Common Stock subject
to incentive awards under the Incentive Plan is the greater of (i)
2,500,000 and (ii) 13% of the total number of shares of Common Stock
outstanding at the time an incentive award is granted. In addition, the
number of shares issuable under the Incentive Plan is subject to
adjustment from time to time as a result of certain anti-dilution
provisions contained in such plan. Pursuant to Rule 416(a) of the
Securities Act of 1933, as amended (the "Act"), this Registration
Statement is deemed to cover such additional number of shares, which is
indeterminate at this time.
(3) Pursuant to Rule 457(c), the registration fee for these shares is
calculated based on the average of the high and low sales price per share
of the Common Stock, as reported by the New York Stock Exchange on July
23, 1997.
-1-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Metals USA, Inc., a Delaware company, ("the Company") hereby incorporates
by reference into this registration statement (the "Registration Statement"):
(i) the Company's prospectus filed pursuant to Rule 424(b) of the Securities Act
of 1933, as amended, on July 11, 1997; (ii) the description of the Company's
Common Stock contained in the Company's Form 8-A, dated July 10, 1997, including
any amendment or report filed for the purpose of updating such description; and
(iii) all other reports filed by the Company pursuant to Section 13(a) or 15(d)
of the Securities and Exchange Act, as amended, since December 31, 1996.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement 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 of such documents.
The Company will provide, without charge, to each participant in the
Company's 1997 Long-Term Incentive Plan (the "Plan"), on written or oral request
of such person, a copy (without exhibits, unless such exhibits are specifically
incorporated by reference) of any or all of the documents incorporated by
reference pursuant to this Item 3. All such requests should be directed to
Metals USA, Inc., 4801 Woodway, Suite 300E, Houston, Texas 77056, Attention:
John A. Hageman, Senior Vice President, General Counsel and Secretatry, phone
number (818) 871-8701.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") permits a
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 or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the case
of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
a quorum of disinterested members of the board of directors, (2) by independent
legal
II-1
<PAGE>
counsel in a written opinion, if such a quorum does not exist or if the
disinterested directors so direct, or (3) by the stockholders.
The Company's Certificate of Incorporation requires the Company to
indemnify its directors and officers to the fullest extent permitted by Section
145 of the DGCL. In addition, the Company maintains liability insurance for its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 The Metals USA, Inc. 1997 Incentive Plan (incorporated by reference
to the Company's Registration Statement on Form S-1 (File No.
333-26601), dated May 7, 1997)
4.2 The Metals USA, Inc. 1997 Non-EmployeeDirector Plan (incorporated by
reference to the Company's Registration Statement on Form S-1 (File
No. 333-26601), dated May 7, 1997)
5.1 Opinion of Bracewell & Patterson, LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Deloitte & Touche LLP
23.4 Consent of McGladrey & Pullen, LLP
23.5 Consent of Ruben, Brown Gornstein & Co.
23.6 Consent of Arthur Andersen, LLP
23.7 Consent of Bracewell & Patterson, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page hereto)
ITEM 9. UNDERTAKINGS.
A. UNDERTAKING TO UPDATE
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 thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this 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 and of the
estimated
II-2
<PAGE>
maximum offering range may be reflected in the form of a
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 percent 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 this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (A)(1)(i) and (A)(1)(ii) of this
section 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, 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. UNDERTAKING WITH RESPECT TO DOCUMENTS INCORPORATED BY REFERENCE
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 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. UNDERTAKING WITH RESPECT TO INDEMNIFICATION
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 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.
II-3
<PAGE>
SIGNATURES
In accordance with 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 of filing on Form S-8 and has duly authorized this
Registration Statement to be signed on its behalf by the undersigned, in the
City of Houston, State of Texas on July 29, 1997.
METALS USA, INC.
By: /s/ARTHUR L. FRENCH
Arthur L. French,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
We, the undersigned directors and officers of Metals USA, Inc., constitute
and appoint Arthur L. French or John A. Hageman, or either of them, our true and
lawful attorneys and agents, to do any and all acts and things in our name and
on our behalf in our capacities as directors and officers, and to execute any
and all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with the filing of this Registration
Statement, including specifically without limitation, power and authority to
sign for any of us, in our names in the capacities indicated below, any and all
amendments hereto; and we do each hereby ratify and confirm all that the said
attorneys and agents, or either of them, shall 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 by the following persons in the
capacities and on the date indicated on July 29, 1997.
Signature Title
--------- -----
/s/ ARTHUR L. FRENCH Chairman of the Board, Chief Executive
Arthur L. French Officer and President
/s/ ARNOLD W. BRADBURD Vice-Chairman of the Board
Arnold W. Bradburd
/s/ J. MICHAEL KIRKSEY Senior Vice President, Chief Financial
J. Michael Kirksey Officer and Director
/s/ STEPHEN R. BAUR Senior Vice President and Chief
Stephen R. Baur Development Officer
/s/ RICHARD A. SINGER Senior Vice President and Director
Richard A. Singer
/s/ MARK ALPER Vice President--Development and Director
Mark Alper
/s/ TERRY L. FREEMAN Vice President and Corporate Controller
Terry L. Freeman
/s/ JOHN A. HAGEMAN Senior Vice President, General Counsel
John A. Hageman and Secretary
/s/ MICHAEL E. CHRISTOPHER Director
Michael E. Christopher
/s/ CRAIG R. DOVEALA Director
Craig R. Doveala
II-5
<PAGE>
/s/ WILLIAM B. EDGE Director
William B. Edge
/s/ PATRICK A. NOTESTINE Director
Patrick A. Notestine
/s/ LESTER G. PETERSON Director
Lester G. Peterson
_______________________ Director
Steven S. Harter
/s/ TOMMY E. KNIGHT Director
Tommy E. Knight
/s/ RICHARD H. KRISTINIK Director
Richard H. Kristinik
_______________________
T. William Porter Director
II-6
<PAGE>
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
4.1 The Metals USA, Inc. 1997 Incentive Plan (incorporated
by reference to the Company's Registration Statement on
Form S-1 (File No. 333-26601), dated May 7, 1997)........
4.2 The Metals USA, Inc. 1997 Non-Employee Director Plan
(incorporated by reference to the Company's Registration
Statement on Form S-1 (File No. 333- 26601), dated
May 7, 1997).............................................
5.1 Opinion of Bracewell & Patterson, L.L.P..................
23.1 Consent of Arthur Andersen LLP...........................
23.2 Consent of Ernst & Young LLP.............................
23.3 Consent of Deloitte & Touche LLP.........................
23.4 Consent of McGladrey & Pullen, LLP.......................
23.5 Consent of Ruben, Brown Gornstein & Co...................
23.6 Consent of Arthur Andersen, LLP..........................
23.7 Consent of Bracewell & Patterson, L.L.P.
(included in Exhibit 5.1)..............................
24.1 Power of Attorney (included on the
signature page hereto).................................
II-7
EXHIBIT 5.1
July 29, 1997
Metals USA, Inc.
4801 Woodway, Suite 300E
Houston, Texas 77056
Ladies and Gentlemen:
We have acted as counsel to Metals USA, Inc., a Delaware corporation (the
"Company"), in connection with the preparation and filing of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended, relating
to an aggregate of 2,750,000 shares (the "Shares") of the Company's common
stock, par value $.01 per share, to be offered upon the terms and subject to the
conditions set forth in the Metals USA, Inc. 1997 Long-Term Incentive Plan and
the Metals USA, Inc. 1997 Non-Employee Director Plan (collectively, the
"Plans").
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have considered such questions of law
as we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and the authenticity of all documents, instruments, records
and certificates submitted to us as originals. We have not independently
verified any matter of fact relating to this opinion.
Based on such examination and review and on representations made to us by
officers of the Company, we are of the opinion that the Shares have been duly
and validly authorized and will, on issuance and delivery against payment
therefor as contemplated in the Plans, be validly issued, fully paid and
nonassessable.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement. This opinion is delivered solely for your benefit and
may not be used or relied upon for any purpose by any other person or entity
without our express prior written authorization.
Very truly yours,
BRACEWELL & PATTERSON, L.L.P.
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 report dated April 30, 1997
on the financial statements of Southern Alloy of America, Inc. included in
Metals USA, Inc.'s registration statement on Form S-1 (No. 333-26601) and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Arthur Andersen LLP
Charlotte, North Carolina
July 24, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
pertaining to the Metals USA, Inc. 1997 Long-Term Incentive Plan and the Metals
USA, Inc. 1997 Non-Employees Director Plan of our report dated October 4, 1996,
with respect to the financial statement of Affiliated Metals Company appearing
in the Registration Statement (Form S-1 No. 333-266601) and related Prospectus,
as amended, of Metals USA, Inc.
/s/ ERNST & YOUNG LLP
St. Louis, Missouri
July 24, 1997
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Metals USA, Inc. on Form S-8 of our report dated April 11, 1997 on
the combined financial statements of Interstate Steel Supply Company and
Affiliates as of December 31, 1996 and 1995 and for each of the three years in
the period ended December 31, 1996 appearing in Registration Statement number
333-26601 of Metals USA, Inc. on Form S-1.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Philadelphia, PA
July 28, 1997
EXHIBIT 23.4
[LETTERHEAD OF McGLADREY & PULLEN, LLP]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Registration Statement on Form S-8
(No. 333-26601) of our report, dated February 27, 1997, relating to the
financial statements of Queensboro Steel Corporation. We also consent to the
reference to our Firm under the caption "Experts" in the Prospectus.
/s/ MCGLADREY & PULLEN, LLP
Wilmington, North Carolina
July 24, 1997
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Metals USA, Inc. of our report, dated October 19, 1995
on Affiliated Metals Company for the years ended September 3, 1994 and
September 2, 1995, as contained in the Registration Statement on Form S-1 of
Metals USA, Inc.
/s/ RUBIN, BROWN, GORNSTEIN & CO. LLP
RUBIN, BROWN, GORNSTEIN & CO. LLP
St. Louis, Missouri
July 24, 1997
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated April 18, 1997
on the financial statements of Texas Aluminum Industries, Inc.; our report dated
March 28, 1997 on the financial statements of Uni-steel, Inc. and our report
dated May 2, 1997 on the financial statements of Metals USA, Inc. included in
Metals USA, Inc.'s registration statement on Form S-1 (No. 333-26601) and to all
references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Houston, Texas
July 24, 1997
