<PAGE> 1
As filed with the Securities and Exchange Commission on July 7, 1998.
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METAL MANAGEMENT, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2835068
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
500 North Dearborn Street, Suite 405
Chicago, Illinois 60610
(312) 645-0700
(Address including zip code, and telephone number, including area code,
of registrant's principal executive offices)
------------------------------------
DAVID A. CARPENTER
General Counsel
METAL MANAGEMENT, INC.
500 North Dearborn Street, Suite 405
Chicago, Illinois 60610
(312) 645-0700
(Name and address, including zip code, and telephone number,
including area code, of agents for service)
With a Copy to:
PAUL W. THEISS, ESQ.
MAYER, BROWN & PLATT
190 S. LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
------------------------------------
Approximate date of commencement of proposed
sale to the public: As soon as practicable after this
Registration Statement has become effective.
------------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933 (the "Securities Act"), other than securities offered
only in connection with dividend or interest reinvestment plans, check the
following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
|_|
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
TITLE OF EACH CLASS OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(1)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE
$0.01 PER SHARE 2,455,537 $10.59 $26,004,136 $7,671
================================================================================================================================
</TABLE>
(1) PURSUANT TO RULE 457(C), SOLELY FOR THE PURPOSE OF CALCULATING THE
AMOUNT OF THE REGISTRATION FEE. THE AVERAGE OF THE HIGH AND LOW
PRICES REPORTED ON THE NASDAQ STOCK MARKET WAS $10.59 ON
June 30, 1998.
(2) THIS REGISTRATION STATEMENT ALSO RELATES, TO THE EXTENT PERMITTED BY
RULE 416, TO AN INDETERMINATE AMOUNT OF SHARES OF COMMON STOCK ISSUABLE
UPON THE EXERCISE OF WARRANTS DESCRIBED HEREIN TO PREVENT DILUTION
RESULTING FROM STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS OR BY
REASON OF CHANGES IN THE EXERCISE PRICE OF THE WARRANTS IN
ACCORDANCE WITH THE DOCUMENTS GOVERNING EACH WARRANT.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
Subject to Completion Dated July 7, 1998
PROSPECTUS
2,455,537 SHARES
METAL MANAGEMENT, INC.
COMMON STOCK
This Prospectus relates to the resale of up to an aggregate of 2,455,537
shares (the "Shares") of common stock, par value $.01 per share (the "Common
Stock"), of Metal Management, Inc., a Delaware corporation (the "Company" or
"Metal Management"), which may be offered (the "Offering") for sale by persons
(individually, a "Selling Stockholder," and collectively, the "Selling
Stockholders") described in this Prospectus. The Shares offered for resale
hereby were issued by the Company in respect of the following: (i) 2,385,537
Shares were issued by the Company in connection with business combinations;
and (ii) 70,000 Shares are issuable upon the exercise of warrants granted by
the Company in connection with business combinations or to employees of the
Company.
The Shares may be offered for sale from time to time by or for the account
of the Selling Stockholders or their respective pledgees, donees, transferees or
other successors in interest in the open market, on the Nasdaq National Market,
in the over-the-counter market, in privately negotiated transactions, or a
combination of these methods, at market prices prevailing at the time of sale,
at prices related to the prevailing market prices or at negotiated prices. The
Shares are intended to be sold through one or more broker-dealers or directly to
purchasers. These broker-dealers may receive compensation in the form of
commissions, discounts or concessions from the Selling Stockholders or
purchasers of the Shares for whom the broker-dealer may act as agent, or to whom
the Selling Stockholders may sell as principal, or both (which compensation as
to a particular broker-dealer may be in excess of customary concessions). The
Selling Stockholders and any broker-dealers who act in connection with the sale
of the Shares hereunder may be deemed to be "underwriters" within the meaning of
the Securities Act of 1933, as amended (the "Securities Act") and any
commissions received by them and the proceeds of any resale of the Shares may be
deemed to be underwriting discounts and commissions under the Securities Act.
If all of the warrants referred to in (ii) above are exercised,
the Company will receive proceeds of $903,750. The Company will receive no
portion of the proceeds from the sale of the Shares offered hereby and will
bear certain expenses incident to their registration. See "Selling Stockholders"
and "Plan of Distribution."
The Common Stock is currently traded on The Nasdaq Stock Market -- National
Market ("Nasdaq") under the symbol "MTLM." On June 30, 1998, the last reported
price for the Common Stock as reported by Nasdaq was $10.69 per share. As of
June 30, 1998 (before the Company's acquisition of Naporano Iron & Metal Co.
and certain assets of Michael Schiavone & Sons, Inc., and the Company's
issuance of Common Stock with respect thereto) the Company had a total of
35,231,317 shares of Common Stock outstanding.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE MATTERS SET FORTH UNDER
THE CAPTION "INVESTMENT CONSIDERATIONS" APPEARING IN THE COMPANY'S ANNUAL REPORT
ON FORM 10-K FOR THE YEAR ENDED MARCH 31, 1998, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
______, 1998
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, and, in accordance therewith, files reports,
proxy and information statements and other information with the Securities and
Exchange Commission (the "Commission"). These reports, proxy and information
statements and other information concerning the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549; and at the Commission's
regional offices located at Citicorp Center, Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661 and at Seven World Trade Center, Suite 1300, New
York, New York, 10048. Copies of such material can also be obtained from the
Commission at prescribed rates through its Public Reference Section at 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also maintains a site on
the World Wide Web at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The Common Stock is currently traded on
Nasdaq. Information filed by the Company with Nasdaq may be inspected through
EDGAR, the Commission's on-line filing service.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Shares offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which forms a part of the Registration Statement,
does not contain all of the information set forth in the Registration Statement,
certain parts of which have been omitted in accordance with the rules and
regulations of the Commission. Statements contained herein concerning the
provisions of certain documents are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference. The Registration
Statement and the exhibits thereto can be inspected and copied through EDGAR.
2
<PAGE> 4
THE COMPANY
GENERAL
Metal Management is one of the largest and fastest-growing full service
metals recyclers in the United States, with 57 recycling facilities in 13
states. The Company is a leading consolidator in the metals recycling industry
and has achieved this position primarily through the implementation of its
national strategy of completing and integrating regional acquisitions. The
Company believes that its consolidation strategy will enhance the competitive
position and profitability of the operations that it acquires through improved
managerial and financial resources and increased economies of scale.
Metal Management is primarily engaged in the collection and processing of
ferrous and non-ferrous metals for resale to metals brokers, steel producers,
and producers and processors of other metals. The Company collects industrial
scrap and obsolete scrap, processes it into reusable forms, and supplies the
recycled metals to its customers, including mini-mills, integrated steel mills,
foundries and metals brokers. The Company believes that it provides one of the
most comprehensive offerings of both ferrous and non-ferrous scrap metals in the
industry. The Company's ferrous products primarily include shredded, sheared,
hot briquetted, cold briquetted and bundled scrap and broken furnace iron. The
Company also processes non-ferrous metals, including aluminum, copper, stainless
steel, brass, titanium and high-temperature alloys, using similar techniques and
through application of the Company's proprietary technologies. For the year
ended March 31, 1998, the Company sold or brokered approximately 3.1 million
tons of ferrous scrap and approximately 178.1 million pounds of non-ferrous
scrap.
The Company's predecessor was incorporated on September 24, 1981 as a
California corporation under the name General Parametrics Corporation, and was
re-incorporated as a Delaware corporation in June 1986 under the same name.
Prior to April 1996, the Company manufactured and marketed color thermal and dye
sublimation printers and related consumables, including ribbons, transparencies
and paper. The Company sold this business in two separate transactions in July
and December of 1996 for $1.3 million in cash and future royalty streams which
the Company does not anticipate will result in material payments to the Company.
On April 12, 1996, the Company changed its name to "Metal Management, Inc."
The Common Stock is traded on Nasdaq under the trading symbol "MTLM." The
Company's principal executive offices are located at 500 North Dearborn Street,
Suite 405, Chicago, Illinois 60610, and its telephone number is (312) 645-0700.
USE OF PROCEEDS
This Prospectus relates to Shares being offered and sold for the accounts
of the Selling Stockholders. The Company will not receive any proceeds from
the sale of the Shares (but will receive proceeds of $903,750 if all the
warrants referred to herein are exercised). There can be no assurance that
any of the warrants will be exercised or that the Company will receive any
proceeds on exercise thereof. The Company has agreed to pay all expenses
related to the registration of the Shares. See "Plan of Distribution."
3
<PAGE> 5
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder, the
aggregate number of Shares of Common Stock beneficially owned by each Selling
Stockholder as of July 7, 1998 (including Shares that are issuable on exercise
of options and warrants), and the aggregate number of Shares registered hereby
that each Selling Stockholder may offer and sell pursuant to this Prospectus.
Because the Selling Stockholders may offer all of a portion of the Shares at
any time and from time to time after the date hereof, no estimate can be made
of the number of Shares that each Selling Stockholder may retain upon
completion of the Offering. (However, assuming all of the Shares offered
hereunder are sold by the Selling Stockholders, then unless otherwise noted,
after completion of the Offering, none of the Selling Stockholders will own
more than one percent (1%) of the shares of Common Stock outstanding.) (Of the
2,455,537 Shares offered hereby, 2,385,537 Shares were issued and outstanding
as of July 7, 1998, and an aggregate of 70,000 Shares have been reserved for
issuance by the Company to certain of the Selling Stockholders upon the
exercise of warrants). Based on information provided to the Company by the
Selling Stockholders, no Selling Stockholder owns one percent (1%) or more of
the Company's Common Stock, except as indicated below. Beneficial ownership
after the Offering will depend on the number of Shares sold by each Selling
Stockholder. The table set forth below does not include such additional number
of Shares which may be issuable upon exercise of warrants to prevent dilution
resulting from stock splits, stock dividends or similar events, all of which
Shares, to the extent permitted under Rule 416 of the Securities Act, are
being offered by this Prospectus.
<TABLE>
<CAPTION>
SHARES SHARES TO BE
BENEFICIALLY PERCENTAGE OFFERED FOR
OWNED PRIOR OWNED PRIOR THE SELLING
TO THE TO THE STOCKHOLDER'S
SELLING STOCKHOLDERS OFFERING OFFERING ACCOUNT
- -------------------- ------------ ----------- -------------
<S> <C> <C> <C>
Paul I. and Rena F. Haveson........................... 1,077,065(1) 2.67% 1,027,065
Ryan A. Haveson....................................... 7,761(2) * 7,761
Ian Albert............................................ 173,335(3) * 173,335
Betty Albert.......................................... 442,000(4) 1.13% 442,000
Eric Albert........................................... 84,333(5) * 69,333
Brian Albert.......................................... 84,333(6) * 69,333
Lisa Albert........................................... 69,333(7) * 69,333
Alan Shumway.......................................... 43,333(8) * 43,333
Katrick, Inc. ........................................ 45,454(9) * 45,454
Charles R. Fitz....................................... 50,000(10) * 50,000
Accurate Iron & Metal Co. ............................ 10,000(11) * 10,000
Judy Ferraro.......................................... 20,000(12) * 20,000
G. Robert Triesch, III................................ 1,007,180(13) 2.49% 428,590
---------- ---------
Total....................................... 3,114,127 2,455,537
========= =========
</TABLE>
- ---------------
* less than 1%
1. Consists of 1,027,065 shares issued in connection with the Company's
acquisition of R&P Holdings, Inc., Charles Bluestone Company, and R&P Real
Estate, Inc. (collectively, "Bluestone"). Mr. and Mrs. Haveson own such
shares in joint tenancy. Also consists of options to purchase 50,000 shares
issued to Mr. Haveson in connection with the Employment Agreement between
the Company and Mr. Haveson.
2. Consists of 7,761 shares issued in connection with the Company's
acquisition of Bluestone.
3. Consists of 173,335 shares issued in connection with the Company's
acquisition of Superior Forge, Inc. ("Superior Forge").
4. Consists of 442,000 shares issued in connection with the Company's
acquisition of Superior Forge.
5. Consists of (i) 69,333 shares issued in connection with the Company's
acquisition of Superior Forge; and (ii) options to purchase 15,000 shares
issued in connection with the Employment Agreement between the Company
and Mr. Albert.
6. Consists of (i) 69,333 shares issued in connection with the Company's
acquisition of Superior Forge; and (ii) options to purchase 15,000 shares
issued in connection with the Employment Agreement between the Company
and Mr. Albert.
7. Consists of 69,333 shares issued in connection with the Company's
acquisition of Superior Forge.
8. Consists of 43,333 shares issued in connection with the Company's
acquisition of Superior Forge.
9. Consists of 45,454 shares issued in connection with the Company's
acquisition of substantially all of the assets of 138 Scrap, Inc. and
Katrick, Inc. (collectively, "138 Scrap").
10. Consists of warrants to purchase 50,000 shares issued in connection with
the Employment Agreement between the Company and Mr. Fritz (the sole
shareholder of 138 Scrap, Inc.), pursuant to the acquisition by the Company
of substantially all of the assets of 138 Scrap.
11. Consists of 10,000 shares issued in connection with the Company's
acquisition of substantially all of the assets of Accurate Iron & Metal Co.
("Accurate Iron & Metal").
12. Consists of warrants to purchase 20,000 shares issued in connection with
the Employment Agreement between the Company and Ms. Ferraro, pursuant to
the acquisition of substantially all of the assets of Accurate Iron &
Metal.
13. Consists of 857,180 shares and warrants to purchase 150,000 shares issued
in connection with the Company's acquisition of Newell Recycling of Denver,
Inc. ("Newell").
4
<PAGE> 6
There are no material relationships between any of the Selling Stockholders
and the Company or any of its predecessors or affiliates, nor have any such
material relationships existed within the past three years, except as follows:
(a) On May 27, 1998, the Company and Paul I. Haveson entered into (i) an
Employment Agreement with respect to Mr. Haveson's position as President
of Charles Bluestone Company; and (ii) a Noncompetition Agreement which
restricts Mr. Haveson's ability to compete with the Company and its
affiliates.
(b) On May 27, 1998, the Company and Rena F. Haveson entered into a
Noncompetition Agreement which restricts Ms. Haveson's ability to compete
with the Company and its affiliates.
(c) On March 17, 1998, the Company entered into three separate lease
agreements to lease (with an option to purchase) certain real property
from Ian and Betty Albert (each lease having an initial lease term of
five years). The monthly base rent for the property is based on a fair
market value determination.
(d) On March 17, 1998, the Company entered into an Employment Agreement with
Ian Albert with respect to his position as President and Chief Executive
Officer of Superior Forge.
(e) On March 17, 1998, the Company entered into an Employment Agreement with
Eric Albert with respect to his position as Vice President of Sales of
Superior Forge.
(f) On March 17, 1998, the Company entered into an Employment Agreement with
Brian Albert with respect to his position as Sales Engineer of Superior
Forge.
(g) On March 17, 1998, the Company entered into an Employment Agreement with
Alan Shumway with respect to his position as Finance Manager of Superior
Forge.
(h) Pursuant to the Merger Agreement, dated February 16, 1998, by and between
(among others) the Company and the Superior Forge shareholders, Ian and
Betty Albert have (under certain conditions) a right of first refusal to
purchase the stock or assets of Superior Forge.
(i) On April 29, 1998, the Company entered into a Lease Agreement with Charles
R. Fritz and a trust benefitting Mr. Fritz, for the leasing (with a right
of first refusal to purchase) of certain real estate to the Company. The
annual base rent is $60,000 and the initial lease term is one year.
(j) On April 29, 1998, the Company entered into an Option Agreement with
Charles R. Fritz and a trust benefitting Mr. Fritz for the granting of an
option to the Company to purchase the land subject to the lease described
in the immediately preceding paragraph.
(k) On April 29, 1998, the Company entered into an Employment Agreement with
Charles R. Fritz with respect to Mr. Fritz's position as President of the
138 Scrap Division of Cozzi Iron & Metal, Inc. ("Cozzi"), pursuant to the
acquisition by the Company of substantially all of the assets of 138 Scrap.
(l) On February 26, 1998, the Company entered into an Employment Agreement
with Judy Ferraro with respect to Ms. Ferraro's position as Senior Account
Executive of Cozzi, pursuant to the acquisition by the Company of
substantially all of the assets of Accurate Iron & Metal.
5
<PAGE> 7
PLAN OF DISTRIBUTION
The Shares may be sold or distributed from time to time by the Selling
Stockholders, or by pledgees, donees or transferees of, or other successors in
interest to, the Selling Stockholders, directly to one or more purchasers
(including pledgees) or through brokers, dealers or underwriters who may act
solely as agents or may acquire Shares as principals, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices, or at fixed prices, which may be changed. The
distribution of the Shares may be effected by one or more of the following
methods: (i) ordinary brokers' transactions, which may include long or short
sales; (ii) transactions involving cross or block trades or otherwise on Nasdaq;
(iii) purchases by brokers, dealers or underwriters as principals and resale by
such purchasers for their own accounts pursuant to this Prospectus; (iv) "at the
market" to or through market makers or into an existing market for the Common
Stock; (v) in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected through agents;
(vi) through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise); or (vii) any combination of the foregoing, or by
any other legally available means. In addition, the Selling Stockholders or
their successors in interest may enter into hedging transactions with
broker-dealers who may engage in short sales of Common Stock in the course of
hedging the positions they assume with the Selling Stockholders. The
7
<PAGE> 8
Selling Stockholders or their successors in interest may also enter into option
or other transactions with broker-dealers that require the delivery to such
broker-dealers of the Shares, which Shares may be resold thereafter pursuant to
this Prospectus.
Brokers, dealers, underwriters or agents participating in the distribution
of the Shares as agent may receive compensation in the form of discounts,
concessions or commissions from the Selling Stockholders (and, if they act as
agent for the purchaser of such Shares, from such purchaser). Such discounts,
concessions or commissions as to a particular broker, dealer, underwriter or
agent might be greater or less than those customary in the type of transaction
involved.
The Selling Stockholders and any such brokers, dealers or other agents that
participate in such distribution may be deemed to be "underwriters" within the
meaning of the Securities Act, and any discounts, commissions or concessions
received by the Selling Stockholders and any such brokers, dealers or other
agents might be deemed to be underwriting discounts and commissions under the
Securities Act. Neither the Company nor the Selling Stockholders can presently
estimate the amount of any such compensation. The Company knows of no existing
arrangements between any Selling Stockholder and any other Selling Stockholder,
broker, dealer or other agent relating to the sale or distribution of the
Shares.
Under applicable rules and regulations under the Exchange Act, any person
engaged in a distribution of any of the Shares may not simultaneously engage in
market activities with respect to the Common Stock for the applicable period
under Regulation M prior to the commencement of such distribution. In addition
and without limiting the foregoing, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Rules 10b-5 and Regulation M, which
may limit the timing of purchases and sales of any of the Shares by the Selling
Stockholders. All of the foregoing may affect the marketability of the Common
Stock.
The Company will pay substantially all of the expenses incident to this
Offering of the Shares by the Selling Stockholders other than commissions,
concessions and discounts of brokers, dealers or other agents. Each Selling
Stockholder may indemnify any broker, dealer, or other agent that participates
in transactions involving sales of the Shares against certain liabilities,
including liabilities arising under the Securities Act. The Company has agreed
to indemnify certain Selling Stockholders and any such statutory "underwriter"
and controlling persons of such "underwriter" against certain liabilities,
including certain liabilities under the Securities Act.
In order to comply with certain states' securities laws, if applicable, the
Shares will be sold in such jurisdictions only through registered or licensed
brokers or dealers.
8
<PAGE> 9
DESCRIPTION OF CAPITAL STOCK
The Amended and Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation") authorizes capital stock consisting of
80,000,000 shares of Common Stock, par value $.01 per share, and 4,000,000
shares of preferred stock without designation, par value $0.01 per share
("Preferred Stock"). There were 35,231,317 shares of Common Stock
issued and outstanding as of June 30, 1998 (before the Company's
acquisition of Naporano Iron & Metal Co. and certain assets of Michael
Schiavone & Sons, Inc., and the Company's issuance of Common Stock with respect
thereto). Additionally, the Board of Directors has designated 36,000 shares of
Preferred Stock as "Series A Preferred Stock," face amount of $1,000 per share,
13,264 shares of which were outstanding as of June 30, 1998, and 23,000 shares
of Preferred Stock as "Series B Preferred Stock," face amount of $1,000 per
share, 19,726 shares of which were outstanding as of June 30, 1998. The
following summary description of the capital stock of the Company is qualified
in its entirety by reference to the Certificate of Incorporation and Bylaws of
the Company.
Common Stock. Each share of Common Stock is entitled to one vote. There
are no preemptive, subscription, conversion or redemption rights pertaining to
the shares of Common Stock. Stockholders are entitled to receive dividends as
declared by the Board of Directors out of assets legally available therefor and
to share ratably in the assets of the Company available upon liquidation.
Preferred Stock. The Company's certificate of incorporation grants the
Board of Directors the right to cause the Company to issue, from time to time,
all or part of the preferred stock remaining undesignated in one or more series,
and to fix the number of shares of preferred stock remaining undesignated and
determine or alter for each series, the voting powers, full, limited, or none,
and other designations, preferences, or relative, participating, optional or
other special rights and such qualifications, limitations, or restrictions
thereof. On August 8, 1997, the Company designated 36,000 shares of preferred
stock as "Series A Convertible Preferred Stock," par value $.01 per share
(Stated Value of $1,000 per share). On November 20, 1997, the Company designated
23,000 shares of preferred stock as "Series B Convertible Preferred Stock," par
value $.01 per share (Stated Value of $1,000 per share).
The Series A Preferred Stock has a "Liquidation Preference" equal to $1,000
per share plus any accrued and unpaid dividends. Upon the liquidation,
dissolution or winding up of the Company, holders of the Series A Preferred
Stock are entitled to receive payment of the Liquidation Preference on a pro
rata basis based on the Liquidation Preference of the preferred stock held by
each holder before any payment is made to holders of Common Stock or any stock
of the Company junior to the Series A Preferred Stock.
Dividends on the Series A Preferred Stock accrue at an annual rate of 6% of
the Stated Value and are payable in cash or, at the Company's option, and upon
satisfaction of certain conditions, in additional shares of Series A Preferred
Stock. The holders of Series A Preferred Stock are able to convert the shares of
Series A Preferred Stock into Common Stock at a price equal to the lower of: (i)
$18.30 (to be adjusted to reflect stock splits, stock dividends or similar
events); or (ii) 85% of the average closing bid price for the common stock for
the five trading days prior to the conversion date.
If the conversion of the Series A Preferred Stock would result in the
holders receiving more than 2,500,000 shares of Common Stock, then the Company
may, in certain circumstances, redeem any shares of Series A Preferred Stock in
excess of 2,500,000 shares at a redemption price equal to: (i) 117% of the
Stated Value of the shares; plus (ii) any accrued and unpaid dividends on such
shares. Any shares of Series A Preferred Stock which have not been converted on
or before August 8, 2000 (the "Maturity Date") will automatically be converted
to shares of Common Stock at the Maturity Date. However, if, at the Maturity
Date any of the "Mandatory Conversion Conditions" are not satisfied, then the
Company will be required to pay the holders of Series A Preferred Stock cash in
an amount equal to the Liquidation Preference for each share of Series A
Preferred Stock owned by the holder. "Mandatory Conversion Conditions" include:
(i) a registration statement covering the resale of all of the shares of Common
Stock issuable upon conversion of the Series A Preferred Stock is effective, or
such resale may be made under Rule 144(k) under the Securities Act.
The Series A Preferred Stock does not grant holders voting rights except
that, so long as the Series A Preferred Stock is outstanding, without the prior
approval of the holders of at least a majority of all shares of the Series A
Preferred Stock outstanding at the time, the Company may not: (i) increase the
number of shares of Series A Preferred Stock which the Company is authorized to
issue; (ii) alter or change the rights,
9
<PAGE> 10
preferences or privileges of the Series A Preferred Stock or any other capital
stock of the Company so as to adversely affect the Series A Preferred Stock; or
(iii) create any new class or series of capital stock having a preference over
the Series A Preferred Stock as to distribution of assets upon liquidation,
dissolution or winding up of the Company. Approval of holders of the Series A
Preferred Stock as to actions described in (ii) and (iii) above will not be
required if the average closing price for the Common Stock on the five trading
days immediately preceding the effective date of such a change is equal to or
exceeds $27.45 per share.
The Series B Preferred Stock has a liquidation preference equal to $1,000
per share plus any accrued and unpaid dividends. Upon the liquidation,
dissolution or winding up of the Company, holders of the Series B Preferred
Stock are entitled to receive payment of the liquidation preference on a pro
rata basis based on the Liquidation Preference of the stock held by each holder
before any payment is made to holders of Common Stock or any stock of the
Company junior to the Series B Preferred Stock.
Dividends on the Series B Preferred Stock accrue, whether or not declared
by the Board of Directors, at an annual rate of 4.5% of the Stated Value of each
outstanding share of Series B Preferred Stock. Dividends are payable in cash or,
at the Company's option, and upon satisfaction of certain conditions, in
additional shares of Series B Preferred Stock.
The holders of Series B Preferred Stock may convert shares of Series B
Preferred Stock into Common Stock at a price equal to the lowest of: (i) 120% of
the closing bid price for the Common Stock on the date of purchase of the Series
B Preferred Stock (to be adjusted to reflect stock splits, stock dividends or
similar events) (the "Fixed Conversion Price"); (ii) 92.5% of the average
closing bid price for the Common Stock for the five trading days prior to the
date of the conversion notice; or (iii) if applicable, the lowest traded price
of the Common Stock during the time when the Common Stock is not listed on
Nasdaq or listed on the New York Stock Exchange or other national securities
exchange.
If the conversion of the Series B Stock would result in the holders
receiving more than 2,000,000 Shares of Common Stock, then the Company may, in
certain circumstances, redeem any shares of Series B Stock in excess of
2,000,000 shares at a redemption price equal to: (i) 117% of the Stated Value of
the shares; plus (ii) any accrued and unpaid dividends on such shares. Any
shares of Series B Preferred Stock which have not been converted within three
years from the date of purchase will automatically be converted to shares of
Common Stock at the maturity date of the Series B Preferred Stock. However, if,
at the maturity date, a registration statement covering the resale of all of the
shares of Common Stock issuable upon conversion of the Series B Preferred Stock
is not effective, and resale may not be made under Rule 144(k) under the
Securities Act, then the Company will be required to pay to the holders of
Series B Preferred Stock cash in an amount equal to the liquidation preference
for the shares of Series B Preferred Stock owned by the holder.
The Series B Preferred Stock does not grant holders voting rights, except
that, so long as shares of Series B Preferred Stock are outstanding, without the
prior approval of the holders of at least a majority of all shares of the Series
B Preferred Stock outstanding at the time, the Company may not: (i) increase the
number of shares of Series B Preferred Stock which the Company is authorized to
issue; (ii) alter or change the rights, preferences or privileges of the Series
B Preferred Stock or any other capital stock of the Company so as to adversely
affect the Series B Preferred Stock; or (iii) create any new class or series of
capital stock having a preference over the Series B Preferred Stock as to
distribution of assets upon liquidation, dissolution or winding up of the
Company. Approval of holders of the Series B Preferred Stock as to actions
described in (ii) and (iii) above will not be required if the average closing
price for the Common Stock on the five trading days immediately preceding the
effective date of such a change is equal to or exceeds 150% of the Fixed
Conversion Price.
Certificate of Incorporation and Bylaws. The Company's Certificate of
Incorporation was amended on April 9, 1996 to change the Company's corporate
name to "Metal Management, Inc." The directors of the Company are elected each
year at the annual meeting of the stockholders for terms of one year and until
their successors are elected and qualified; existing directors may nominate and
elect qualified persons to fill vacancies on the Board of Directors.
10
<PAGE> 11
Stockholders' Agreement. Albert A. Cozzi, Frank J. Cozzi and Gregory P.
Cozzi (collectively, the "Cozzi Stockholders"), Samstock, L.L.C. ("Samstock")
and Messrs. Jacobs and Jennings (collectively, the "MTLM Stockholders") and the
Company entered into a stockholders agreement dated as of December 19, 1997 and
having a term of ten years, unless renewed or extended (the "Stockholders
Agreement"). Under the Stockholders Agreement, the Cozzi Stockholders, Samstock
and the MTLM Stockholders have agreed that each group will act in a manner to
cause the nomination of the directors slated for election at each annual meeting
of the Company, five of whom shall be selected by the Cozzi Stockholders and
five of whom shall be selected by the MTLM Stockholders (provided that each
group has agreed to nominate one individual, independent and unaffiliated from
each group or the Company, as part of its slate) and one of whom shall be
selected by Samstock. The Stockholders Agreement further requires each group to
vote for the other group's nominees for election to the Board and to vote for
proposals, if and when presented by the Company, to amend the Company's
organizational documents to require the approval of at least two-thirds of the
Board of Directors to, among other things: (i) amend the Company's certificate
of incorporation or bylaws; (ii) liquidate or merge the Company; (iii) sell
substantially all of the Company's assets; (iv) elect or remove officers; (v)
adopt an annual budget; (vi) borrow funds, sell assets or make capital
expenditures exceeding $5 million; (vii) issue or register the Company's
securities; or (viii) declare or pay any dividends or distributions.
Transfer Agent and Registrar. The Transfer Agent and Registrar for the
Common Stock is LaSalle National Bank of Chicago.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company and the Selling Stockholders by Mayer, Brown & Platt, Chicago,
Illinois.
EXPERTS
The financial statements of the Company incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended March 31, 1998
and the supplementary consolidated financial statements of the Company included
in Exhibit 99.1 of the Company's Form 8-K dated July 1, 1998 (which account for
the Company's acquisition of R & P Holdings, Inc. as a pooling of interests),
have been so incorporated in reliance on the reports of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
11
<PAGE> 12
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates by reference herein the following documents filed
pursuant to the Exchange Act under the Company's Exchange Act File No. 0-14836:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended March 31,
1998; (ii) a Current Report of the Company on Form 8-K dated July 1, 1998
(providing supplementary consolidated financial statements of the Company which
account for the Company's acquisition of R&P Holdings, Inc. as a pooling of
interests); and (iii) a Current Report of the Company on Form 8-K dated July 1,
1998 (describing the Company's acquisition of Naporano Iron & Metal Co.).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the Offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document or information incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document that also is, or is
deemed to be, incorporated herein by reference, 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 Prospectus.
The making of a modifying or superseding statement shall not be deemed an
admission that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an omission to
state a material fact that is required to be stated or that is necessary to make
a statement not misleading in light of the circumstances in which it was made.
The Company hereby undertakes to provide without charge to each person
including any beneficial owner to whom a copy of this Prospectus has been
delivered, upon written or oral request of the person, a copy of any or all of
the foregoing documents or information referred to above that has been
incorporated herein by reference in this Prospectus (other than exhibits to
documents, unless these exhibits are specifically incorporated by reference into
the documents). Requests for these documents should be made to Mr. Robert C.
Larry at the Company's principal executive offices located at 500 North Dearborn
Street, Suite 405, Chicago, Illinois 60610; telephone number (312) 645-0700.
12
<PAGE> 13
=========================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER OF SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................... 2
The Company.............................. 3
Use of Proceeds.......................... 3
Selling Stockholders..................... 4
Plan of Distribution..................... 7
Description of Capital Stock............. 9
Legal Matters............................ 11
Experts.................................. 11
Incorporation of Certain Documents
by Reference........................... 12
</TABLE>
=========================================================
=========================================================
METAL MANAGEMENT, INC.
------------------------
PROSPECTUS
------------------------
2,455,537
SHARES OF
COMMON STOCK
($.01 PAR VALUE)
_________, 1998
=========================================================
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses payable by the
Registrant in connection with the filing of this Registration Statement. All of
such expenses, other than the filing fee for the Commission, are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee.................................................... $ 7,671
Printing and Engraving Expenses.................................................................. $ 10,000*
Legal Fees and Expenses.......................................................................... $ 10,000*
Accounting Fees and Expenses..................................................................... $ 10,000*
Blue Sky Fees and Expenses....................................................................... $ 0
--------
Total ............................................................................... $ 37,671
========
</TABLE>
* estimated for purposes of this filing
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of Section 145(a) of the Delaware General
Corporation Law, the Company has the power to indemnify anyone made or
threatened to be made a party 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 Company) because such person is
or was a director or officer of the Company against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in the defense or settlement of such action, suit, or
proceeding, provided that (i) such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the Company's best interest and
(ii) in the case of a criminal proceeding such person had no reasonable cause to
believe his conduct was unlawful.
With respect to an action or suit by or in the right of the Company to
procure a judgment in its favor, Section 145(b) of the Delaware General
Corporation Law provides that the Company shall have the power to indemnify
anyone who was, is, or is threatened to be made a party to a threatened,
pending, or completed action or suit brought by or in the right of the Company
to procure a judgment in its favor because such person is or was a director or
officer of the Company against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, provided that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the Company's best interests,
except that no indemnification shall be made in a case in which such person
shall have been adjudged to be liable to the Company unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall have determined upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses.
Indemnification as described above shall only be granted in a specific
case upon a determination that indemnification is proper under the circumstances
using the applicable standard of conduct which is made by (a) a majority of a
quorum of directors who were not parties to such proceeding, (b) independent
S-1
<PAGE> 15
legal counsel in a written opinion if such quorum cannot be obtained or if a
quorum of disinterested directors so directs, or (c) the shareholders of the
Company.
Section 145(g) of the Delaware General Corporation Law permits the
purchase and maintenance of insurance to indemnify directors and officers
against any liability asserted against or incurred by them in any such capacity,
whether or not the Company itself would have the power to indemnify any such
director or officer against such liability. The Company has purchased this type
of insurance, has paid and intends to continue paying the premiums thereon.
The Company's Amended Certificate of Incorporation provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law, as the same
may be amended or supplemented. The Certificate of Incorporation further
provides that the indemnification provided for therein shall not be exclusive of
any rights to which those indemnified may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors, or otherwise.
The Amended Certificate of Incorporation also contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its shareholders for monetary damages for breach of fiduciary duty as a
director. The provision does not limit a director's liability for (i) breaches
of duty of loyalty to the Company or its shareholders, (ii) acts or omissions
not in good faith, involving intentional misconduct or involving knowing
violations of law, (iii) the payment of unlawful dividends or unlawful stock
repurchases or redemptions under Section 174 of the Delaware General Corporation
Law, or (iv) transactions in which the director received an improper personal
benefit. Depending on judicial interpretation, the provision may not affect
liability for violations of the federal securities laws.
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 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 Securities Act and will be governed by the final
adjudication of such issue.
The Company understands that the staff of the Securities and Exchange
Commission is of the opinion that statutory, charter and contractual provisions
as are described above have no effect on claims arising under the federal
securities laws. The Company is not aware of any material threatened or ongoing
litigation or proceeding that may result in a claim for such indemnification.
ITEM 16. EXHIBITS
A list of exhibits filed herewith or incorporated by reference herein
is contained in the Exhibit Index, which is incorporated herein by reference.
S-2
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, on July 7, 1998.
METAL MANAGEMENT, INC.
By: /s/ T. Benjamin Jennings
----------------------------------------------------
T. Benjamin Jennings
Director, Chairman of the Board, Member of Executive
Committee and Chief Development Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gerard M. Jacobs and T. Benjamin
Jennings, and either of them acting individually, as his attorney-in-fact and
agent with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign, each and all
amendments to this Registration Statement (including post-effective amendments),
to sign any additional registration statements for the same offering and
amendments to the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto the
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
satisfying and confirming that the attorney-in-fact and agent, or his
substitutes, may lawfully do or cease to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement or amendment thereto has been signed by the
following persons in the capacities indicated on July 7, 1998.
Signature Title
- --------- -----
/s/ T. Benjamin Jennings Director, Chairman of the Board, Member of
- -------------------------- Executive Committee and Chief Development
T. Benjamin Jennings Officer
S-3
<PAGE> 17
/s/ Gerard M. Jacobs Director, Member of Executive Committee and
- --------------------------------- Chief Executive Officer (Principal Executive
Gerard M. Jacobs Officer)
/s/ Albert A. Cozzi President and Chief Operating Officer,
- --------------------------------- Director and Member of Executive Committee
Albert A. Cozzi
/s/ Frank J. Cozzi Vice President and Director
- ---------------------------------
Frank J. Cozzi
/s/ Gregory P. Cozzi Director
- ---------------------------------
Gregory P. Cozzi
/s/ George A. Isaac, III Director, Member of Executive Committee and
- --------------------------------- Executive Vice President
George A. Isaac, III
- --------------------------------- Director
Harold Rubenstein
/s/ William T. Proler Director
- ---------------------------------
William T. Proler
/s/ Christopher G. Knowles Director
- ---------------------------------
Christopher G. Knowles
/s/ Rod F. Dammeyer Director
- ---------------------------------
Rod F. Dammeyer
/s/ Robert C. Larry Vice President, Finance, Treasurer and Chief
- --------------------------------- Financial Officer (Principal Financial and
Robert C. Larry Accounting Officer)
S-4
<PAGE> 18
METAL MANAGEMENT, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Exhibit Description
- ------ -------------------
<S> <C>
3.1 Certificate of Incorporation of the Company, as amended through June 23,
1998 (incorporated by reference to Exhibit 3.1 of the Company's Annual
Report on Form 10-K for the year ended March 31, 1998).
3.2 Amended and Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.2 of the Company's Annual Report on Form 10-K for the year
ended March 31, 1998).
4.1 Specimen of Stock Certificate (incorporated by reference to Exhibit 4.1
of the Company's Annual Report on Form 10-K for the year ended March 31,
1997).
4.2 1995 Stock Plan and Form of Option Agreement (incorporated by reference
to Exhibit 4.2 of the Company's Annual Report on Form 10-K for the year
ended March 31, 1997).
4.3 1996 Director Option Plan and Form of Option Agreement (incorporated by
reference to Exhibit 4.3 of the Company's Annual Report on Form 10-K for
the year ended March 31, 1997).
</TABLE>
S-5
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<TABLE>
<C> <S>
4.4 Registration Rights Agreement, dated as of June 23, 1997, by and
between the Company and the George A. Isaac, III Second Revocable
Trust (incorporated by reference to Exhibit 4.4 of the Company's
Annual Report on Form 10-K for the year ended March 31, 1998).
4.5 Registration Rights Agreement, dated as of November 20, 1997, by and
among the Company, Proprietary Convertible Investment Group, Inc.,
and Capital Ventures International (incorporated by reference to
Exhibit 10.5 of the Company's report on Form 8-K dated December 1,
1997).
4.6 Shelf Registration Rights Agreement, dated December 19, 1997, between
the Company and Samstock, L.L.C. (incorporated by reference to
Exhibit 4.2 of the Company's report on Form 8-K dated December 18,
1997).
4.7 Amended and Restated Registration Rights Agreement, dated December
19, 1997, among the Company, T. Benjamin Jennings, Gerard M. Jacobs,
Albert A. Cozzi, Frank J. Cozzi, Gregory P. Cozzi and Samstock,
L.L.C. (incorporated by reference to Exhibit 4.3 of the Company's
report on Form 8-K dated December 18, 1997).
4.8 Registration Rights Agreement, dated December 18, 1997, between the
Company and Ronald I. Romano, Lolita A. Romano, Ronald T. Romano and
Ryan E. Romano (incorporated by reference to Exhibit 4.4 of the
Company's report on Form 8-K dated January 2, 1998).
4.9 Registration Rights Agreement, dated January 20, 1998, by and between
the Company and Aerospace Metals, Inc. (incorporated by reference to
Exhibit 10.3 of the Company's report on Form 8-K dated January 20,
1998).
4.10 Registration Rights Agreement, dated January 30, 1998, by and between
the Company and Newell Phoenix, L.L.C. (incorporated by reference to
Exhibit 4.5 of the Company's registration statement on Form S-3 dated
February 10, 1998).
4.11 Indenture, dated as of May 13, 1998, among the Company, the
Guarantors (as defined therein) and LaSalle National Bank, as Trustee
(incorporated by reference to Exhibit 10.2 of the Company's report on
Form 8-K dated May 13, 1998).
4.12 First Supplemental Indenture, dated as of May 31, 1998, executed by
R&P Holdings, Inc., Charles Bluestone Company and R&P Real Estate,
Inc., amending Indenture, dated as of May 13, 1998, among the
Company, the Guarantors and LaSalle National Bank, as Trustee
(incorporated by reference to Exhibit 4.12 of the Company's Annual
Report on Form 10-K for the year ended March 31, 1998).
4.13 Second Supplemental Indenture, dated as of June 19, 1998, executed by
Metal Management Gulf Coast, Inc., amending Indenture, dated as of
May 13, 1998, among the Company, the Guarantors and LaSalle National
Bank, as Trustee (incorporated by reference to Exhibit 4.13 of the
Company's Annual Report on Form 10-K for the year ended March 31,
1998).
4.14 Exchange and Registration Rights Agreement, dated as of May 13, 1998,
by and among the Company, the Guarantors, Goldman, Sachs & Co., BT
Alex. Brown Incorporated and Salomon Brothers Inc (incorporated by
reference to Exhibit 10.3 of the Company's report on Form 8-K dated
May 13, 1998).
4.15* Declaration of Registration Rights, dated March 17, 1998, by the
Company for the benefit of Ian Albert, Betty Albert, Eric Albert,
Brian Albert, Lisa Albert and Alan Shumway.
4.16* Registration Rights Agreement, dated April 29, 1998, by and between
the Company and 138 Scrap, Inc. and Katrick, Inc.
4.17* Registration Rights Agreement, dated as of June 24, 1998 by and
between the Company and G. Robert Triesch, III.
5** Opinion of Mayer, Brown & Platt.
10.1 Employment Agreement, dated August 26, 1996, between the Company and
Robert C. Larry (incorporated by reference to Exhibit 10.1 of the
Company's report on Form 10-Q for the quarter ended December 31,
1996).
10.2 Employment Agreement, dated June 23, 1997, between the Company and
George A. Isaac III (incorporated by reference to Exhibit 2.2 of the
Company's report on Form 8-K dated June 23, 1997).
10.3 Warrant to Purchase 462,500 shares of Common Stock, dated June 23,
1997, issued by the Company to the George A. Isaac, III Second
Revocable Trust (incorporated by reference to Exhibit 10.3 of the
Company's Annual Report on Form 10-K for the year ended March 31,
1998).
10.4 Warrant to purchase 105,000 shares of Common Stock, dated May 1,
1997, issued by the Company to Paul D. Joseph (incorporated by
reference to Exhibit 4.5 of the Company's registration statement on
Form S-3 dated January 13, 1998).
10.5 Employment Agreement, dated as of August 27, 1997, by and between
the Company and William T. Proler (incorporated by reference to
Exhibit 10.1 of the Company's report on Form 8-K dated August 28,
1997).
</TABLE>
S-6
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<TABLE>
<C> <S>
10.6 Form of Stock Warrant Settlement Agreement, dated as of
November 7, 1997, between the Company, EMCO Recycling Corp.
and George O. Moorehead (incorporated by reference to
Exhibit 10.1 of the Company's report on Form 8-K dated
December 1, 1997).
10.7 Form of Letter regarding Separation Agreement, dated as of
November 7, 1997, between the Company and George O.
Moorehead (incorporated by reference to Exhibit 10.2 of the
Company's report on Form 8-K dated December 1, 1997).
10.8 Form of Non-Compete, Non-Solicitation and Confidentiality
Covenant and Agreement, dated as of November 7, 1997, by and
between the Company and George O. Moorehead (incorporated by
reference to Exhibit 10.3 of the Company's report on Form
8-K dated December 1, 1997).
10.9 Securities Purchase Agreement, dated as of November 20,
1997, among the Company, Proprietary Convertible Investment
Group, Inc., and Capital Ventures International
(incorporated by reference to Exhibit 10.4 of the Company's
report on Form 8-K dated December 1, 1997).
10.10 Employment Agreement, dated December 1, 1997, between the
Company and T. Benjamin Jennings (incorporated by reference
to Exhibit 10.6 of the Company's report on Form 8-K dated
December 1, 1997).
10.11 Employment Agreement, dated December 1, 1997, between the
Company and Gerard M. Jacobs (incorporated by reference to
Exhibit 10.9 of the Company's report on Form 8-K dated
December 1, 1997).
10.12 Employment Agreement, dated December 1, 1997, between the
Company and Albert A. Cozzi (incorporated by reference to
Exhibit 10.12 of the Company's report on Form 8-K dated
December 1, 1997).
10.13 Employment Agreement, dated December 1, 1997, between the
Company and Frank J. Cozzi (incorporated by reference to
Exhibit 10.15 of the Company's report on Form 8-K dated
December 1, 1997).
10.14 Warrant to purchase 350,000 shares of Common Stock at an
exercise price of $12.00 per share, dated December 1, 1997,
issued by the Company to T. Benjamin Jennings (incorporated
by reference to Exhibit 10.7 of the Company's report on Form
8-K dated December 1, 1997).
10.15 Warrant to purchase 375,000 shares of Common Stock at an
exercise price of $5.91 per share, dated December 1, 1997,
issued by the Company to T. Benjamin Jennings (incorporated
by reference to Exhibit 10.8 of the Company's report on Form
8-K dated December 1, 1997).
10.16 Warrant to purchase 350,000 shares of Common Stock at an
exercise price of $12.00 per share, dated December 1, 1997,
issued by the Company to Gerard M. Jacobs (incorporated by
reference to Exhibit 10.10 of the Company's report on Form
8-K dated December 1, 1997).
10.17 Warrant to purchase 375,000 shares of Common Stock at an
exercise price of $5.91 per share, dated December 1, 1997,
issued by the Company to Gerard M. Jacobs (incorporated by
reference to Exhibit 10.11 of the Company's report on Form
8-K dated December 1, 1997).
10.18 Warrant to purchase 377,586 shares of Common Stock at an
exercise price of $5.91 per share, dated December 1, 1997,
issued by the Company to Albert A. Cozzi (incorporated by
reference to Exhibit 10.13 of the Company's report on Form
8-K dated December 1, 1997).
10.19 Warrant to purchase 377,586 shares of Common Stock at an
exercise price of $15.84 per share, dated December 1, 1997,
issued by the Company to Albert A. Cozzi (incorporated by
reference to Exhibit 10.14 of the Company's report on Form
8-K dated December 1, 1997).
10.20 Warrant to purchase 291,380 shares of Common Stock at an
exercise price of $5.91 per share, dated December 1, 1997,
issued by the Company to Frank J. Cozzi (incorporated by
reference to Exhibit 10.16 of the Company's report on Form
8-K dated December 1, 1997).
10.21 Warrant to purchase 291,380 shares of Common Stock at an
exercise price of $15.84 per share, dated December 1, 1997,
issued by the Company to Frank J. Cozzi (incorporated by
reference to Exhibit 10.17 of the Company's report on Form
8-K dated December 1, 1997).
</TABLE>
S-7
<PAGE> 21
<TABLE>
<C> <S>
10.22 Warrant to purchase 81,035 shares of Common Stock at an exercise price
of $5.91 per share, dated December 1, 1997, issued by the Company to
Gregory P. Cozzi (incorporated by reference to Exhibit 10.19 of the
Company's report on Form 8-K dated December 1, 1997).
10.23 Warrant to purchase 81,035 shares of Common Stock at an exercise price
of $15.84 per share, dated December 1, 1997, issued by the Company to
Gregory P. Cozzi (incorporated by reference to Exhibit 10.20 of the
Company's report on Form 8-K dated December 1, 1997).
10.24 Warrant to purchase 600,000 shares of Common Stock, dated December 19,
1997, issued by the Company to Samstock, L.L.C. (incorporated by
reference to Exhibit 4.1 of the Company's report on Form 8-K dated
December 18, 1997).
10.25 Securities Purchase Agreement, dated December 19, 1997, between the
Company and Samstock, L.L.C. (incorporated by reference to Exhibit 10.1
of the Company's report on Form 8-K dated December 18, 1997).
10.26 Amended and Restated Stockholders Agreement, dated December 19, 1997,
among T. Benjamin Jennings, Gerard M. Jacobs, Albert A. Cozzi, Frank J.
Cozzi, Gregory P. Cozzi, Samstock, L.L.C. and the Company (incorporated
by reference to Exhibit 10.2 of the Company's report on Form 8-K dated
December 18, 1997).
10.27 Credit Agreement, dated March 31, 1998, by and among the Company and its
subsidiaries named therein and BT Commercial Corporation (incorporated
by reference to Exhibit 10.1 of the Company's Annual Report on Form 10-K
for the year ended March 31, 1998).
10.28 Amendment No. 1 to Credit Agreement, dated as of June 12, 1998, by and
among the Company and its subsidiaries named therein and BT Commercial
Corporation (incorporated by reference to Exhibit 10.28 of the Company's
Annual Report on Form 10-K for the year ended March 31, 1998).
10.29 Amendment No. 2 to Credit Agreement, dated as of June 19, 1998, by and
among the Company and its subsidiaries named therein and BT Commercial
Corporation (incorporated by reference to Exhibit 10.29 of the Company's
Annual Report on Form 10-K for the year ended March 31, 1998).
10.30 Purchase Agreement, dated May 8, 1998, among the Company, the
Guarantors, Goldman, Sachs & Co., BT Alex. Brown Incorporated and
Salomon Brothers Inc (incorporated by reference to Exhibit 10.1 of the
Company's report on Form 8-K dated May 13, 1998).
23.1 Consent of Mayer, Brown & Platt (contained in Exhibit 5).
23.2* Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (contained in the signature page of this Registration
Statement).
</TABLE>
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* Included with this Registration Statement.
** To be filed by amendment.
S-8
<PAGE> 1
EXHIBIT 4.15
METAL MANAGEMENT, INC.
DECLARATION OF REGISTRATION RIGHTS
This Declaration of Registration Rights ("Declaration") is made as of
March 17, 1998, by Metal Management, Inc., a Delaware corporation ("MTLM"),
for the benefit of shareholders of Superior Forge, Inc. (the "Target
Shareholders"), acquiring shares of the Common Stock of MTLM pursuant to that
Merger Agreement dated as of February 16, 1998 (the "Acquisition Agreement")
among MTLM, MTLM Merger, Inc., a Delaware corporation ("Sub") and wholly-owned
subsidiary of MTLM, Superior Forge, Inc., a California corporation, and the
Target Shareholders and in consideration of such Target Shareholders approving
and entering into the Acquisition Agreement and the transactions contemplated
thereby.
1. Definitions. As used in this Declaration:
(a) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(b) "Act" means the Securities Act of 1933, as amended.
(c) "Effective Time of the Merger" means the earlier of the time of
acceptance by the Secretaries of State of the Sate of California and the State
of Delaware of the filing of the Agreement and Plan of Merger with the
California Secretary of State or such later time as may be specified in the
Agreement and Plan of Merger.
(d) "Form S-3" means such form under the Act as in effect on the date
hereof or any registration form under the Act subsequently adopted by them SEC
which similarly permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the commission.
(e) "Holder" means a Target Shareholder to whom shares of Common
Stock of MTLM are issued pursuant to the Acquisition Agreement and the Agreement
and Plan of Merger.
(f) "Material Event" means the happening of any event during the
period that the registration statement described in Section 2 hereof is
required to be effective as a result of which, in the judgment of MTLM, such
registration statement or the related Prospectus contains or may contain any
untrue statement of a material fact or omits or may omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
(g) "Registrable Securities" means for each Holder the number of
shares of MTLM Common Stock issued to such Holder pursuant to the
Acquisition Agreement and the Agreement and Plan of Merger and for all
Holders the sum of the Registrable Securities held by them.
<PAGE> 2
(h) "SEC" means the Securities and Exchange Commission.
Terms not otherwise defined herein have the meanings given to them
in the Acquisition Agreement.
2. Registration. Subject to Section 3 below, MTLM shall use its best
efforts to cause the Registrable Securities held by each Holder to be
registered under the Act as soon as practicable after the Effective Time of the
Merger, but in no event later than one hundred eighty (180) days after the
Effective Time of the Merger, so as to permit the sale thereof, and in
connection therewith shall prepare and file with the SEC no later than ninety
(90) days after the Effective Time of the Merger and shall use its best
efforts to cause to become effective no later than one hundred eighty (180)
days after the Effective Time of the Merger, a registration statement in such
form as is then available under the Act covering the Registrable Securities;
provided, however, that each Holder shall provide all such information and
materials and take all such action as may be required in order to permit MTLM
to comply with all the applicable requirements of the SEC and to obtain any
desired acceleration of the effective date of such registration statement,
such provision of information and materials to be a condition precedent to the
obligations of MTLM pursuant to this Declaration. MTLM shall not be required
to effect more than one (1) registration under this Declaration. The offerings
made pursuant to such registration shall not be underwritten.
3. Postponement of Registration.
(a) Initial Registration. Notwithstanding Section 2 above, MTLM
shall be entitled to postpone the declaration of effectiveness of the
registration statement prepared and filed pursuant to Section 2 for a
reasonable period of time, but not in excess of ninety (90) calendar days after
the applicable deadline, if the Board of Directors of MTLM, acting in good
faith, determines that there exists material non-public information about MTLM;
provided, however that MTLM may not do so unless it postpones all other pending
registration statements.
(b) Material Event. Each Holder agrees that, upon receipt of any
notice from MTLM of the happening of a Material Event, such Holder will
forthwith discontinue disposition of the Registrable Securities pursuant to the
registration statement described in Section 2 until such Holder's receipt of
copies of supplemented or amended prospectuses prepared by MTLM, and, if so
directed by MTLM, such Holder will deliver to MTLM (at the expense of MTLM) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In no event shall MTLM delay
causing to be effective a supplement or post-effective amendment to a
registration statement pursuant to Section 2 or the related prospectus, for
more than forty-five (45) consecutive days or ninety (90) days during the
period beginning on the first anniversary of the Effective Time of the Merger
and ending on the second anniversary of the Effective Time of the Merger.
4. MTLM Registration.
(a) If (but without any obligation to do so) (A) MTLM proposes to
register any of its Common Stock or other securities under the Act in
connection with a public offering of such
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<PAGE> 3
securities solely for cash (not including (i) a registration effected by MTLM
for shareholders other than the Holders, (ii) a registration relating solely
to MTLM's employee benefit plans, (iii) a registration relating solely to an
acquisition, or (iv) a registration on any form that does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities) and
(B)(i) MTLM has not previously registered the Holder's Registrable Securities
under the Act and (ii) it is prior to the first anniversary of the Effective
Time of the Merger, MTLM shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of each Holder
given within twenty (20) days after mailing of such notice by MTLM, MTLM
shall, subject to the provisions of Section 4(b) and (c) below, cause to be
registered under the Act all of the Registrable Securities that each such
Holder has requested to be registered.
(b) In connection with any offering involving an underwriting of
shares of MTLM's capital stock, MTLM shall not be required under Section 4(a)
to include any of the Holders' securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between MTLM and the
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the managing underwriter
determines in its sole discretion will not, due to marketing factors,
jeopardize the success of the offering by MTLM.
(c) If the total amount of securities, including Registrable
Securities, requested by shareholders of MTLM to be included in such
offering exceeds the amount of securities (other than securities to be sold by
MTLM) that the underwriters determine in their sole discretion is compatible
with the success of the offering, then MTLM shall be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the shareholders of MTLM requesting inclusion in such registration
according to the total amount of securities entitled to be included therein
owned by each such shareholder of MTLM). In no event shall any securities of
MTLM be excluded from such registration prior to the cut back of all shares
proposed to be sold in such offering by the shareholders of MTLM.
(d) If any Holder disapproves of the terms of any such underwriting,
such Holder may elect to withdraw therefrom by written notice to MTLM and the
underwriters. If such Holder's shares are withdrawn from registration, or if
the number of shares of Registrable Securities was previously reduced due to
marketing factors, MTLM shall offer to all Holders retaining the right to
include securities in the registration the right to include additional
Registrable Securities in the registration, with such shares being allocated on
a pro rata basis among the Holders of Registrable Securities.
(e) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 4.
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<PAGE> 4
5. Obligations of MTLM. MTLM shall
(a) prepare and file with the SEC the registration statement in
accordance with Section 2 hereof with respect to the shares of Registrable
Securities and shall use its best efforts to cause such registration
statement to become effective as provided in Section 2 and to keep such
registration statement effective until the earlier of the sale of all of the
Registrable Securities so registered or the first anniversary of the
Effective Time of the Merger;
(b) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary and to comply with the provisions of the Act with respect
to the sale or other disposition of all securities proposed to be registered in
such registration statement until the earlier of the sale of all of the shares
of Registrable Securities so registered or the first anniversary of the
Effective Time of the Merger;
(c) furnish to each Holder such number of copies of any prospectus
(including any preliminary prospectus and any amended or supplemented
prospectus) in conformity with the requirements of the Act, and such other
documents, as each Holder may reasonably request in order to effect the
offering and sale of the shares of the Registrable Securities to be offered
and sold, but only while MTLM shall be required under the provisions hereof to
cause the registration statement to remain current;
(d) use its reasonable best efforts to register or qualify the
shares of the Registrable Securities covered by such registration
statement under the securities or blue sky laws of such jurisdictions as each
Holder shall reasonably request (provided that MTLM shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such jurisdiction where it
has not been qualified), and do any and all other acts or things which may be
necessary or advisable to enable each Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions;
(e) notify each Holder upon the happening of any event as a result of
which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) so long as the registration statement remains effective, promptly
prepare, file and furnish to each Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of the Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then
existing;
(g) notify each Holder, promptly after it shall receive notice
thereof, of the date and time the registration statement and each
post-effective amendment thereto has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
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<PAGE> 5
(h) each Holder promptly of any request by the SEC for the amending
or supplementing of such registration statement or prospectus or for additional
information; and
(i) advise each Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of the registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to obtain its withdrawal
if such stop order should be issued.
(j) In connection with any offering of shares of Registrable
Securities registered pursuant to this Declaration, MTLM shall:
a) promptly furnish each Holder, at MTLM's expense, with
unlegended certificates representing ownership of the shares of Registrable
Securities being sold in such denominations as each Holder shall request and
b) promptly instruct the transfer agent and registrar of the
Registrable Securities to release any stop transfer orders with respect to the
shares of Registrable Securities being sold.
6. Expenses. MTLM shall pay the expenses incurred by MTLM in connection
with any registration of Registrable Securities pursuant to this Declaration
including all SEC, NASD and blue sky registration and filing fees, printing
expenses, transfer agents' and registrars' fees, and the reasonable fees and
disbursements of MTLM's outside counsel and independent accountants. The
Holders shall be responsible for all underwriting discounts, commissions and
transfer taxes, as well as any other expenses incurred by the Holder,
including the fees and disbursements of counsel to such Holder.
7. Indemnification. In the event of any offering registered pursuant to
this Declaration:
(a) MTLM will indemnify each Holder, each of its officers, directors
and partners and such Holder's legal counsel and independent accountants,
and each person controlling such Holder within the meaning of Section 15 of the
Act, with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Act, against all expenses, claims, losses, damages and liabilities (or actions
in respect thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they are
made, not misleading, or any violation by MTLM of any rule or regulation
promulgated under the Act, or state securities laws, or common law, applicable
to MTLM in connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers, directors and
partners and such
-5-
<PAGE> 6
Holder's legal counsel and independent accountants, and each person controlling
such Holder, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that MTLM will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based in any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to MTLM by an instrument duly executed by such Holder or
underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify MTLM, each of its directors and
officers and its legal counsel and independent accountants, each underwriter,
if any, of MTLM's securities covered by such registration statement, each
person who controls MTLM or such underwriter within the meaning of Section 15
of the Act, and each other such Holder, each of its officers directors and each
person controlling such Holder within the meaning of Section 15 of the Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) or a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission
(or alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to MTLM by an instrument duly executed by such
Holder and stated to be specifically for use therein and will reimburse MTLM,
such Holders, such directors, officers, legal counsel, independent accountants,
underwriters or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim, loss,
damage, liability or action, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to MTLM by
an instrument duly executed by such Holder and stated to be specifically for
use therein.
(c) Each party entitled to indemnification under this Section 7
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has written notice of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. If in the
reasonable judgment of the Indemnified Party there exists or is reasonably
likely to exist a conflict of interest that would make it inappropriate for the
same counsel to represent both the Indemnified Party and
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<PAGE> 7
the Indemnifying Party, then the Indemnified Party shall be entitled to retain
its own counsel at the expense of the Indemnifying Party. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.
(d) The obligations of MTLM and each Holder under this Section 7
shall survive the completion of any offering of stock in a registration
statement under this Declaration and otherwise.
8. Non-Assignent of Registration Rights. The rights to cause MTLM to
register Registrable Securities pursuant to this Declaration may not be
assigned by the Holder other than to a Holder's spouse, a grantor trust or to
his or her heirs and descendants; provided, in each case, that the transferee
agrees in writing to be subject to the terms hereof.
9. Waivers and Amendments. The rights and obligations of the parties to
this Declaration may be amended, waived or discharged (either generally or in
a particular instance, either retroactively or prospectively, and either for
a specified period of time or indefinitely) only by a written instrument
effect such amendment, waiver or discharge signed by MTLM and by the Holders
of a majority of the Registrable Securities.
10. Termination. The registration rights set forth in this Declaration
shall terminate with respect to a Holder at such time as all of the
Registrable Securities then held by such Holder can be sold by such Holder in
a 3-month period in accordance with Rule 144 under the Act.
11. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person or by courier service or five
days after deposit with the United States mail, postage prepaid, addressed (a)
if to a Holder, at such Holder's address as set forth in the securities
register of MTLM, or (b) if to MTLM, at 500 N. Dearborn St., Suite 405,
Chicago, Illinois 60610.
12. Governing Law; Interpretation. This Declaration of Registration
Rights shall be construed in accordance and governed for all purposes by
the laws of the State of Delaware applicable to contracts executed and to
be wholly performed within such state.
13. Severability; Survival. If any portion of this Declaration of
Registration Rights is held by a court of competent jurisdiction to conflict
with any federal, state or local law, or to be otherwise invalid or
unenforceable, such portion of this Declaration of Registration Rights shall
be of no force or effect, and this Declaration of Registration Rights shall
otherwise remain in full force and effect and be construed as if such portion
had not been included in this Declaration of Registration Rights.
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<PAGE> 8
14. Entire Agreement. This Declaration of Registration Rights contains
the entire agreement and understanding of the parties and supersedes all prior
discussions, agreements and understandings relating to the subject matter
hereof.
15. Attorneys' Fees and Costs. In connection with any dispute or
controversy arising under or in connection with this Declaration of
Registration Rights, the prevailing party shall be entitled to reasonable
attorneys' fees and costs.
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<PAGE> 1
EXHIBIT 4.16
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and entered
into as of the 29th day of April, 1998, by and between Metal Management, Inc.,
a Delaware corporation (the "COMPANY"), 138 Scrap, Inc., an Illinois
corporation, and Katrick, Inc., an Illinois corporation (collectively, the
"SELLERS").
RECITALS:
A. Pursuant to an Asset Purchase Agreement dated as of April 29, 1998
(the "PURCHASE AGREEMENT"), by and among the Sellers, the stockholders of the
Sellers (the "SHAREHOLDERS"), Cozzi Iron & Metal, Inc., an Illinois
corporation ("COZZI"), and 138 Scrap Acquisition Corp., an Illinois
corporation ("ACQUISITION"), Sellers received from the Company shares of the
Company's common stock, par value $.01 per share (the "COMMON STOCK"). All
terms which are capitalized and used without definition herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
B. As a condition to the Sellers agreeing to enter into the Purchase
Agreement, the Sellers are being granted registration rights with respect to
their shares of Common Stock.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. Registration.
(a) The Company hereby covenants and agrees to include for registration
the Registrable Securities issued to the Sellers pursuant to the Purchase
Agreement in the next selling stockholders registration statement filed by the
Company subsequent to the date of this Agreement with the Commission. The
Company will use its best efforts through its officers, directors, auditors,
and counsel to cause such registration statement to become effective as
promptly as practicable following the filing thereof.
(b) As used herein: (i) "COMMISSION" means the Securities and Exchange
Commission; (ii) "ELIGIBLE HOLDER" means each of the Sellers (or the
Shareholders) to the extent it (or the Shareholders) then holds any
Registrable Securities; and (iii) "REGISTRABLE SECURITIES" shall mean the
shares of Common Stock owned by the Sellers on the date hereof as set forth on
Schedule 1, which, with respect to each Seller, have not been previously sold
pursuant to a registration statement or Rule 144 promulgated under the
Securities Act of 1933, as amended (the "SECURITIES Act").
(c) Upon a registration pursuant to the provisions of this Section 1,
the Company shall use its best efforts to cause the Registrable Securities so
registered to be registered or qualified for sale under the securities or blue
sky laws of such jurisdictions as the Eligible Holder may reasonably request;
provided, however, that the Company shall not be required to qualify to do
<PAGE> 2
for sale under the securities or blue sky laws of such jurisdictions as the
Eligible Holder may reasonably request; provided, however, that the Company
shall not be required to qualify to do business in any state by reason of this
Section l(c) in which it is not otherwise required to qualify to do business.
(d) The Company shall keep effective any registration or
qualification contemplated by this Section 1 and shall from time to time
amend or supplement each applicable registration statement, preliminary
prospectus, final prospectus, application, document and communication for such
period of time as shall be required to permit the Eligible Holder to complete
the offer and sale of the Registrable Securities covered thereby. The Company
shall in no event be required to keep any such registration or qualification in
effect for a period in excess of nine (9) months from the date on which the
Eligible Holder is first free to sell such Registrable Securities; provided,
however, that, if the Company is required to keep any such registration or
qualification in effect with respect to securities other than the Registrable
Securities beyond such period, the Company shall keep such registration or
qualification in effect as it relates to the Registrable Securities for so long
as such registration or qualification remains or is required to remain in
effect in respect of such other securities.
(e) In the event of a registration pursuant to the provisions of this
Section 1, the Company shall furnish to each Eligible Holder such number of
copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of
copies of each prospectus contained in such registration statement and each
supplement or amendment thereto (including each preliminary prospectus), all
of which shall conform to the requirements of the Securities Act and the rules
and regulations thereunder, and such other documents, as any Eligible Holder
may reasonably request to facilitate the disposition of the Registrable
Securities included in such registration.
(f) Upon a registration pursuant to the provisions of this Section
1, the Company shall furnish each Eligible Holder with an opinion of its
counsel (reasonably acceptable to the Eligible Holder) to the effect that (i)
the registration statement has become effective under the Securities Act and no
order suspending the effectiveness of the registration statement, preventing or
suspending the use of the registration statement, any preliminary prospectus,
any final prospectus, or any amendment or supplement thereto has been issued,
nor has the Commission or any securities or blue sky authority of any
jurisdiction instituted or threatened to institute any proceedings with respect
to such an order, (ii) the registration statement and each prospectus forming a
part thereof (including each preliminary prospectus), and any amendment or
supplement thereto, comply as to form with the Securities Act and the rules and
regulations thereunder, and (iii) such counsel has no knowledge of any material
misstatement or omission in such registration statement or any prospectus, as
amended or supplemented. Such opinion shall also state the jurisdictions in
which the Registrable Securities have been registered or qualified for sale
pursuant to the provisions of Section l(c).
(g) The Company agrees that until all the Registrable Securities have
been sold under a registration statement or pursuant to Rule 144 under the
Securities Act, it shall use its best
2
<PAGE> 3
efforts to keep current in filing all reports, statements and other materials
required to be filed with the Commission to permit holders of the Registrable
Securities to sell such securities under Rule 144.
(h) The Company shall notify the Eligible Holder promptly when such
registration statement has become effective or a supplement to any prospectus
forming a part of such registration statement has been filed. The Company
shall notify the Eligible Holder promptly of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and use its best efforts to promptly update and/or correct such prospectus;
provided, however, that the Company shall not be required to update and/or
correct such prospectus if, and so long as, the Board of Directors of the
Company determines in good faith that to do so at such time would be
detrimental to the business or prospects of the Company. Any such period
(beginning upon notification of the Eligible Holder) in which the prospectus
remains not updated or corrected is herein referred to as a "STANDSTILL
PERIOD."
(i) The Company shall notify the Eligible Holder of the issuance by
the Commission of any stop or other order suspending the effectiveness of the
registration statement. If at any time the Company shall receive any such
order, the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time; provided, however, that
the Company shall not be required to obtain the withdrawal or lifting of such
order if, and so long as, the Board of Directors of the Company determines in
good faith that to do so at such time would be detrimental to the business or
prospects of the Company.
(j) In connection with the registration of Registrable Securities
pursuant to a registration statement, each Eligible Holder shall: (i) furnish
to the Company such information regarding itself and the intended method of
disposition of Registrable Securities as the Company shall reasonably request
in order to effect the registration thereof, and (ii) upon receipt of any
notice from the Company of the initiation of a Standstill Period, immediately
discontinue disposition of Registrable Securities pursuant to the registration
statement until receiving written notice from the Company that the Standstill
Period has terminated.
2. Indemnification. (a) Subject to the conditions set forth below, the
Company agrees to indemnify and hold harmless each Eligible Holder, its
officers, directors, partners, employees, agents, and counsel, and each
person, if any, who controls any such person within the meaning of Section 15
of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), from and against any and all loss, liability,
charge, claim, damage, and expense whatsoever (which shall include, for all
purposes of this Section 2, but not be limited to, reasonable attorneys' fees
and any and all reasonable expenses whatsoever incurred in investigating,
preparing, or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus
3
<PAGE> 4
(as from time to time amended and supplemented), or any amendment or
supplement thereto, relating to the sale of any of the Registrable Securities
or (B) in any application or other document or communication (in this Section
2 collectively called an "APPLICATION") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to register or qualify any of the
Registrable Securities under the securities or blue sky laws thereof or filed
with the Commission or any securities exchange; or any omission or alleged
omission to state a material fact required to be stated therein or necessary
to make the statements made therein not misleading, unless (x) such statement
or omission was made in reliance upon and in conformity with written
information furnished to the Company with respect to such Eligible Holder by
or on behalf of such person expressly for inclusion in any registration
statement, preliminary prospectus, or final prospectus, or any amendment or
supplement thereto, or in any application, as the case may be, or (y) such
loss, liability, charge, claim, damage or expense arises out of such Eligible
Holder's failure to comply with the terms and provisions of this Agreement, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in this Agreement. The foregoing agreement to indemnify
shall be in addition to any liability the Company may otherwise have,
including liabilities arising under this Agreement.
If any action is brought against any Eligible Holder or any of its
officers, directors, partners, employees, agents, or counsel, or any controlling
persons of such person (an "INDEMNIFIED PARTY") in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify the Company in writing of
the institution of such action (but the failure so to notify shall not relieve
the Company from any liability other than pursuant to this Section 2(a)) and
the Company shall promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such indemnified party or
parties), provided that the indemnified party shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless
the employment of such counsel shall have been authorized in writing by the
Company in connection with the defense of such action or the Company shall not
have promptly employed counsel reasonably satisfactory to such indemnified
party or parties, or such indemnified party or parties shall have reasonably
concluded that there may be one or more legal defenses available to it or them
or to other indemnified parties which are different from or additional to
those available to the Company, in any of which events such fees and expenses
shall be borne by the Company and the Company shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties. Anything in this Section 2 to the contrary notwithstanding, the
Company shall not be liable for any settlement of any such claim or action
effected without its written consent, which shall not be unreasonably
withheld. The Company shall not, without the prior written consent of each
indemnified party that is not released as described in this sentence, settle
or compromise any action, or permit a default or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action,
in respect of which indemnity may be sought hereunder (whether or not any
indemnified party is a party thereto), unless such settlement, compromise,
consent, or termination includes an unconditional release of each indemnified
party from all liability in respect of such action. The Company agrees
promptly to notify Eligible Holder of the commencement of any litigation or
proceedings against the Company or any of it officers or directors in
connection with the sale of any Registrable Securities or any
4
<PAGE> 5
preliminary prospectus, prospectus, registration statement, or amendment or
supplement thereto, or any application relating to any sale of any Registrable
Securities.
(b) Each Eligible Holder agrees to indemnify and hold harmless the
Company, each director of the Company, each officer of the Company who shall
have signed any registration statement covering Registrable Securities held by
such Eligible Holder, each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and its or their respective counsel, to the same extent as the
foregoing indemnity from the Company to such Eligible Holder in Section 2(a),
but only with respect to statements or omissions, if any, made in any
registration statement, preliminary prospectus, or final prospectus (as from
time to time amended and supplemented), or any amendment or supplement
thereto, or in any application, in reliance upon and in conformity with
written information furnished to the Company with respect to such Eligible
Holder by or on behalf of such Eligible Holder, expressly for inclusion in any
such registration statement, preliminary prospectus, or final prospectus, or
any amendment or supplement thereto, or in any application, as the case may
be. If any action shall be brought against the Company or any other person so
indemnified based on any such registration statement, preliminary prospectus,
or final prospectus or any amendment or supplement thereto, or in any
application, and in respect of which indemnity may be sought against such
Eligible Holder pursuant to this Section 2(b), such Eligible Holder shall have
the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the
indemnified parties, by the provisions of Section 2(a).
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section
2(a) or 2(b) (subject to the limitations thereof) but it is found in a final
judicial determination, not subject to further appeal, that such
indemnification may not be enforced in such case, even though this Agreement
expressly provides for indemnification in such cases, or (ii) any indemnified
or indemnifying party seeks contribution under the Securities Act, the Exchange
Act or otherwise, then the Company (including for this purpose any contribution
made by or on behalf of any director of the Company, any officer of the
Company who signed any such registration statement, any controlling person of
the Company, and its or their respective counsel), as one entity, and the
Eligible Holder of the Registrable Securities, included in such registration in
the aggregate (including for this purpose any contribution by or on behalf of
an indemnified party), as a second entity, shall contribute to the losses,
liabilities, claims, damages, and expenses whatsoever to which any of them may
be subject, on the basis of relevant equitable considerations such as the
relative fault of the Company and such Eligible Holder in connection with the
facts which resulted in such losses, liabilities, claims, damages, and
expenses. The relative fault, in the case of an untrue statement, alleged
untrue statement, omission, or alleged omission shall be determined by, among
other things, whether such statement, alleged statement, omission, or alleged
omission relates to information supplied by the Company or by such Eligible
Holder, and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement, alleged statement, omission,
or alleged omission. The Company and Eligible Holder agree that it would be
unjust and inequitable if the respective obligations of the Company and the
Eligible Holder for contribution were determined by pro rata or per capita
allocation of the aggregate losses, liabilities, claims, damages, and expenses
(even if each Eligible
5
<PAGE> 6
Holder and the other indemnified parties were treated as one entity for such
purpose) or by any other method of allocation that does not reflect the
equitable considerations referred to in this Section 2(c). In no case shall
any Eligible Holder be responsible for a portion of the contribution
obligation imposed on all Eligible Holder in excess of its pro rata share
based on the number of shares of Common Stock owned by him and included in
such registration as compared to the number of shares of Common Stock owned
by all Eligible Holder and included in such registration. No person guilty of
a fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section
2(c), each person, if any, who controls any Eligible Holder within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and
each officer, director, partner, employee, agent, and counsel of Eligible
Holder or control person shall have the same rights to contribution as such
Eligible Holder or control person and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed
any such registration statement, each director of the Company, and its or
their respective counsel shall have the same rights to contribution as the
Company, subject in each case to the provisions of this Section 2(c). Anything
in this Section 2(c) to the contrary notwithstanding, no party shall be liable
for contribution with respect to the settlement of any claim or action
effected without its written consent. This Section 2(c) is intended to
supersede any right to contribution under the Securities Act, the Exchange Act
or otherwise.
3. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, the Sellers, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
(b) Agreements and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, unless such amendment, modification or supplement is in
writing and signed by the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in accordance with the provision of the
Purchase Agreement.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of the Registrable Securities subject to the
terms hereof.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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<PAGE> 7
(f) Headings. The headings in this Agreement are for convenience of
references only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Illinois without reference to its
conflicts of law provisions.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application hereof in any circumstance
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provisions contained herein shall not be affected or
impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of this agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises warranties or undertakings, other than those set forth or referred to
herein, concerning the registration rights granted by the Company pursuant to
this Agreement.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
METAL MANAGEMENT, INC.
By: /s/ Gerard M. Jacobs
---------------------------------
Title: Chief Executive Officer
138 SCRAP, INC.
By: /s/ Charles R. Fritz
---------------------------------
KATRICK, INC.
By: /s/ Karen C. Fritz
---------------------------------
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<PAGE> 8
SCHEDULE 1
----------
REGISTRABLE SECURITIES
----------------------
Stockholder Number of Shares of Common Stock
- ---------- --------------------------------
Katrick, Inc. -----------------------
<PAGE> 1
EXHIBIT 4.17
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made and entered
into as of the 24th day of June, 1998, by and between Metal Management, Inc.,
a Delaware corporation (the "COMPANY") and G. Robert Triesch, III. (the
"SHAREHOLDER").
RECITALS:
A. Pursuant to the Agreement of Merger (the "PURCHASE AGREEMENT") dated as
of June 24, 1998, by and among the Company, Newell Acquisition Corp., a
Colorado corporation ("ACQUISITION"), Newell Recycling of Denver, Inc., a
Colorado corporation ("NEWELL DENVER"), Newell Recycling of Utah, LLC, a Utah
limited liability company ("NEWELL UTAH") and the Shareholder, Shareholder
received from the Company 857,180 shares of the Company's common stock, par
value $.01 per share (the "COMMON STOCK").
B. Pursuant to the terms of this Agreement, the Company has agreed to
register 428,590 shares of Common Stock of the Shareholder which represent one
half the shares of the Common Stock issued to the Shareholder in connection
with the Purchase Agreement (other than any shares held in the Escrow) to the
extent that such shares (collectively, the "REGISTRABLE SECURITIES") have not
been previously sold pursuant to a registration statement or Rule 144 (or any
similar provision then in force) under the Securities Act of 1933, as amended
(the "SECURITIES ACT") or any other exemption from registration thereunder.
C. All terms which are capitalized and used without definition herein
shall have the meanings ascribed to such terms in the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties hereto agree as follows:
1. Mandatory Registration.
(a) The Company shall as promptly as practicable, but in any event
within 120 days from the date hereof, prepare and file at the Company's sole
cost and expense (other than the fees and disbursements of counsel for the
Shareholder and the underwriting discounts, if any, payable in respect of the
Registrable Securities sold by the Shareholder) one "shelf" registration
statement with the Securities and Exchange Commission (the "COMMISSION") on the
appropriate form pursuant to Rule 415 of the Securities Act covering the resale
of the Registrable Securities. In no event shall the Company be required to
file more than one registration statement. The Company will use commercially
reasonable efforts through its officers, directors, auditors, and
<PAGE> 2
counsel to cause such registration statement to become effective as promptly as
practicable following the filing thereof.
(b) In the event of a registration pursuant to Section 1(a), the
Company shall use commercially reasonable efforts to cause the Registrable
Securities so registered to be registered or qualified for sale under the
securities or blue sky laws of such states as the Shareholder may reasonably
request to permit the resale of the Registrable Securities in such states; and
do such other reasonable acts and things as may be required of it to enable
such holder to consummate the disposition in such states; provided, however,
that the Company shall not be required to qualify to do business in any state
by reason of this Section 1(b) in which it is not otherwise required to qualify
to do business.
(c) The Company shall keep effective any registration or qualification
contemplated by this Section 1 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document and communication for such period of time as
shall be required to permit the Shareholder to complete the offer and sale of
the Registrable Securities covered thereby. The Company shall keep such
registration or qualification in effect until the earlier of (i) the second
anniversary of the date that the registration statement was declared
effective, (ii) the first date upon which the Shareholder is free to sell all
such Registrable Securities under Rule 144 of the Securities Act within the
volume limitations set forth in Rule 144(e) of the Securities Act, (iii) the
first date upon which the Shareholder is free to sell all such Registrable
Securities under Rule 144(k) of the Securities Act, or (iv) the date that the
Shareholder has sold or otherwise transferred all the Registrable Securities
under a registration statement, pursuant to Rule 144 under the Securities Act
or otherwise.
(d) In the event of a registration pursuant to Section 1(a), the
Company shall furnish to the Shareholder such reasonable number of copies of
the registration statement and of each amendment and supplement thereto (in
each case, including all exhibits), such reasonable number of copies of each
prospectus contained in such registration statement and each supplement or
amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Securities Act and the rules and regulations
thereunder, and such other documents, as the Shareholder may reasonably request
to facilitate the disposition of the Registrable Securities included in such
registration.
(e) In the event of a registration pursuant to Section 1(a), the
Company shall furnish the Shareholder so registered with an opinion of its
counsel (in form and substance reasonably acceptable to the Shareholder) to the
effect that (i) the registration statement has become effective under the
Securities Act and no order suspending the effectiveness of the registration
statement, preventing or suspending the use of the registration statement, any
preliminary prospectus, any final prospectus, or any amendment or supplement
thereto has been issued, nor has the Commission or any securities or blue sky
authority of any jurisdiction instituted or to the knowledge of such counsel
threatened to institute any proceedings with respect to such an order, (ii) the
registration statement and each prospectus forming a part thereof (including
each preliminary prospectus), and any amendment or supplement thereto, comply
as to form with the Securities Act
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<PAGE> 3
and the rules and regulations thereunder, and (iii) such counsel has no
knowledge of any material misstatement or omission in such registration
statement or any prospectus, as amended or supplemented. Such opinion shall
also state the jurisdictions in which the Registrable Securities have been
registered or qualified for sale pursuant to Section 1(b).
(f) The Company agrees that until all the Registrable Securities have
been sold under a registration statement or pursuant to Rule 144 under the
Securities Act, it shall use commercially reasonable efforts to keep current in
filing all reports, statements and other materials required to be filed with
the Commission to permit holders of the Registrable Securities to sell such
securities under Rule 144 of the Securities Act.
(g) The Company shall notify the Shareholder promptly when such
registration statement and any amendments and supplements thereto have become
effective or any supplements to any prospectus forming a part of such
registration statement have been filed. The Company shall notify the
Shareholder promptly of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and use commercially
reasonable efforts to update and/or correct such prospectus as promptly as
practicable by preparing a supplemental or post effective amendment to a
registration statement or a supplement to the related prospectus or any
document incorporated or deemed incorporated by reference and filing the same
with the Commission. The Shareholder agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in this
Section 1(g) the Shareholder will forthwith discontinue disposition of such
Registrable Securities covered by such registration statement or prospectus
until the Shareholder (i) receives copies of the supplemented or amended
prospectus and has been advised in writing by the Company that such
supplemented or amended prospectus may be used, or (ii) is advised in writing
by the Company that the use of the applicable prospectus may be resumed. If so
directed by the Company, the Shareholder will deliver to the Company all
copies, other than permanent file copies, then in the Shareholder's possession,
of the prospectus covering such Registrable Securities current at the time of
receipt of the notice referred to in the immediately preceding sentence.
(h) The Company shall notify the Shareholder promptly of the issuance
by the Commission of any stop or other order suspending the effectiveness of
the registration statement. If at any time the Company shall receive any such
order, the Company shall use commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time. The
Shareholder agrees that upon receipt of any notice from the Company of the
happening of any event of the kind described in this Section 1(h), the
Shareholder will forthwith discontinue disposition of such Registrable
Securities covered by any registration statement or prospectus until such
order has been withdrawn or lifted.
(i) If requested by the underwriter for any underwritten offering of
Registrable Securities on behalf of the Shareholder pursuant to a registration
requested under Section 1(a), the Company and the Shareholder will enter into
an underwriting agreement with such underwriter for
3
<PAGE> 4
such offering, which shall be reasonably satisfactory in substance and form to
the Company and the Company's counsel, the Shareholder and the underwriter, and
such agreement shall contain such representations and warranties by the Company
and the Shareholder and such other terms and provisions as are customarily
contained in an underwriting agreement with respect to secondary distributions
solely by the Shareholder, including, without limitation, indemnities
substantially to the effect and to the extent provided in Section 2 hereof.
(j) The Company shall use commercially reasonable efforts to have the
Registrable Securities included for quotation on the Nasdaq National Market.
(k) In connection with the registration of Registrable Securities
pursuant to a registration statement, the Shareholder shall furnish to the
Company such information regarding himself and the intended method of
disposition of Registrable Securities as the Company shall reasonably request
in order to effect the registration thereof .
2. Indemnification. Subject to the conditions set forth below, the
Company agrees to indemnify and hold harmless the Shareholder, his employees,
agents, and counsel, and each person, if any, who controls any such person
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), from and
against any and all loss, liability, charge, claim, damage, and expense
whatsoever (which shall include, for all purposes of this Section 2, but not be
limited to, reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), as and when incurred,
arising out of, based upon, or in connection with (i) any untrue statement or
alleged untrue statement of any material fact contained (A) in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, relating to
the sale of any of the Registrable Securities or (B) in any application or
other document or communication (in this Section 2 collectively called an
"APPLICATION") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to register or qualify any of the Registrable Securities under the
securities or blue sky laws thereof or filed with the Commission or any
securities exchange; or any omission or alleged omission to state a material
fact required to be stated therein or necessary to make the statements made
therein not misleading, unless (x) such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company with respect to the Shareholder by or on behalf of such person
expressly for inclusion in any registration statement, preliminary prospectus,
or final prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (y) such loss, liability, charge, claim,
damage or expense arises directly out of the Shareholder's failure to comply
with the terms and provisions of this Agreement, or (ii) any breach of any
representation, warranty, covenant, or agreement of the Company contained in
this Agreement. The foregoing agreement to indemnify shall be in addition to
any liability the Company may otherwise have, including liabilities arising
under this Agreement.
4
<PAGE> 5
If any action is brought against the Shareholder or any of their
employees, agents, or counsel, or any controlling persons of such person (an
"INDEMNIFIED PARTY") in respect of which indemnity may be sought against the
Company pursuant to the foregoing paragraph, such indemnified party or parties
shall promptly notify the Company in writing of the institution of such action
(but the failure so to notify shall not relieve the Company from any liability
other than pursuant to this Section 2(a) except to the extent that the Company
shall have been prejudiced thereby) and the Company shall promptly assume the
defense of such action, including the employment of counsel (reasonably
satisfactory to such indemnified party or parties), provided that the
indemnified party shall have the right to employ his or its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the defense
of such action or the Company shall not have promptly employed counsel
reasonably satisfactory to such indemnified party or parties, or such
indemnified party or parties shall have reasonably concluded that there may be
one or more legal defenses available to him or it or to other indemnified
parties which are different from or additional to those available to the
Company, in any of which events such fees and expenses shall be borne by the
Company and the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties. Anything in this Section
2 to the contrary notwithstanding, the Company shall not be liable for any
settlement of any such claim or action effected without its written consent,
which shall not be unreasonably withheld. The Company shall not, without the
prior written consent of each indemnified party that is not released as
described in this sentence, settle or compromise any action, or permit a
default or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, in respect of which indemnity may be sought
hereunder (whether or not any indemnified party is a party thereto), unless
such settlement, compromise, consent, or termination includes an unconditional
release of each indemnified party from all liability in respect of such action.
The Company agrees promptly to notify the Shareholder of the commencement of
any litigation or proceedings against the Company or any of it officers or
directors in connection with the sale of any Registrable Securities or any
preliminary prospectus, prospectus, registration statement, or amendment or
supplement thereto, or any application relating to any sale of any Registrable
Securities.
(b) The Shareholder agrees to indemnify and hold harmless the Company,
each director of the Company, each officer of the Company who shall have signed
any registration statement covering Registrable Securities held by the
Shareholder, each other person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, and its or their respective counsel, to the same extent as the foregoing
indemnity from the Company to the Shareholder in Section 2(a), but only with
respect to statements or omissions, if any, made in any registration statement,
preliminary prospectus, or final prospectus (as from time to time amended and
supplemented), or any amendment or supplement thereto, or in any application,
in reliance upon and in conformity with written information furnished to the
Company with respect to the Shareholder by or on behalf of the Shareholder,
expressly for inclusion in any such registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, as the case may be. If any action shall be brought against
the Company or any other person so indemnified based on any such registration
statement,
5
<PAGE> 6
preliminary prospectus, or final prospectus or any amendment or supplement
thereto, or in any application, and in respect of which indemnity may be sought
against the Shareholder pursuant to this Section 2(b), the Shareholder shall
have the rights and duties given to the Company, and the Company and each other
person so indemnified shall have the rights and duties given to the indemnified
parties, by the provisions of Section 2(a).
(c) To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 2(a) or
2(b) (subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such cases, or (ii) any indemnified or indemnifying party
seeks contribution under the Securities Act, the Exchange Act or otherwise,
then the Company (including for this purpose any contribution made by or on
behalf of any director of the Company, any officer of the Company who signed
any such registration statement, any controlling person of the Company, and its
or their respective counsel), on the one hand, and the Shareholder (including
for this purpose any contribution by or on behalf of an indemnified party), on
the other hand, shall contribute to the losses, liabilities, claims, damages,
and expenses whatsoever to which any of them may be subject, on the basis of
relevant equitable considerations such as the relative fault of the Company and
the Shareholder in connection with the facts which resulted in such losses,
liabilities, claims, damages, and expenses. The relative fault, in the case of
an untrue statement, alleged untrue statement, omission, or alleged omission
shall be determined by, among other things, whether such statement, alleged
statement, omission, or alleged omission relates to information supplied by the
Company or by the Shareholder, and the parties' relative intent, knowledge,
access to information, and opportunity to correct or prevent such statement,
alleged statement, omission, or alleged omission. The Company and the
Shareholder agree that it would be unjust and inequitable if the respective
obligations of the Company and the Shareholder for contribution were determined
by pro rata or per capita allocation of the aggregate losses, liabilities,
claims, damages, and expenses (even if the Shareholder and the other
indemnified parties were treated as one entity for such purpose) or by any
other method of allocation that does not reflect the equitable considerations
referred to in this Section 2(c). No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. For purposes of this Section 2(c), each person,
if any, who controls the Shareholder within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act and each employee, agent,
and counsel of Shareholder or control person shall have the same rights to
contribution as the Shareholder or control person and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, each officer of the Company who shall have
signed any such registration statement, each director of the Company, and its
or their respective counsel shall have the same rights to contribution as the
Company, subject in each case to the provisions of this Section 2(c). Anything
in this Section 2(c) to the contrary notwithstanding, no party shall be liable
for contribution with respect to the settlement of any claim or action effected
without its written consent. This Section 2(c) is intended to supersede any
right to contribution under the Securities Act, the Exchange Act or otherwise.
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3. Shareholder Representations.
(a) Restricted Securities. The Shareholder understands that: (i) the
Registrable Securities have not been registered under the Securities Act or
under any state securities laws; (ii) the Registrable Securities are being
offered and issued in reliance upon federal and state exemptions for
transactions not involving any public offering; (iii) a "stop transfer" order
will be placed against the certificates representing shares of Common Stock
issued pursuant to the Purchase Agreement; and (iv) certificates shall bear on
their face the following legend:
"The shares evidenced by this certificate have not been registered under the
Securities Act of 1933, as amended, or any applicable state securities laws,
and any transfer hereof is subject to compliance with all applicable federal
and state securities laws and regulations."
(b) Transfer of Registrable Securities. The Shareholder hereby agrees
that the Registrable Securities are transferable only pursuant to (a) public
offerings registered under the Securities Act, (b) Rule 144 of the Securities
Act (or any similar rule or rules then in force) if such rule is available, and
(c) subject to the conditions specified in this Section 3(b), any other legally
available means of transfer. In connection with the transfer of any of the
Registrable Securities (other than a transfer pursuant to a registered public
offering of shares of Common Stock described herein), the Shareholder shall
deliver written notice to the Company describing in reasonable detail the
transfer or proposed transfer, together with an opinion of securities counsel
(with such opinion and such counsel being reasonably satisfactory to the
Company and its counsel) to the effect that such transfer of Registrable
Securities may be effected without registration of such Registrable Securities
under the Securities Act. In addition, if the Shareholder delivers to the
Company such an opinion that concludes that no subsequent transfer of such
Registrable Securities will require registration under the Securities Act, the
Company shall promptly upon such contemplated transfer deliver new certificates
for such Common Stock which do not bear the restrictive legend set forth in
Section 3(a).
4. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, Shareholder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement.
(b) Agreements and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, unless such amendment, modification or supplement is in writing
and signed by the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in accordance with the provision of the
Purchase Agreement.
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(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent holders of the Registrable Securities subject to the terms hereof.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
references only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado without reference to its
conflicts of law provisions.
(h) Arbitration Procedure. In the event of disputes between the
parties with respect to the terms and conditions of this Agreement, either
party may demand that such disputes shall be resolved by and through an
arbitration proceeding to be conducted under the auspices of the American
Arbitration Association (AAA) in Denver, Colorado or Chicago, Illinois. The
demand for arbitration shall be in writing, shall be served on the other party
in the manner prescribed in the Purchase Agreement for giving notices, and
shall set forth the matter or matters to be arbitrated and the name of the
arbitrator chosen by the party making such demand. Within 15 days after
receipt of such demand, the other party to the dispute shall appoint an
arbitrator and given written notice of such appointment to the other party and
shall specify the name and address of such arbitrator. If such party shall
fail to appoint an arbitrator and notify the other party as herein provided
within such fifteen day period, the party making the demand shall have the
right to apply to the Chief Judge of the United States District Court located
in Denver, Colorado or Chicago, Illinois, for an appointment of an arbitrator.
The two arbitrators appointed or selected as set forth above shall promptly
appoint a third arbitrator as soon as practicable, or if they do not do so
within thirty days after notice is given to the parties of the appointment of
the second arbitrator, either party may apply to the Chief Judge of the United
States District Court located in Denver, Colorado or Chicago, Illinois for an
appointment of a third arbitrator. Any arbitration pursuant hereto shall be in
accordance with the Commercial Arbitration Rules of the AAA as then in effect,
except to the extent such rules are in conflict with the provisions of this
Section 4(h); provided, however, if the AAA is not then functioning or such
rules are not then in effect, arbitration shall be conducted in accordance with
the requirements of the Uniform Arbitration Act. The arbitrators shall meet as
soon as practicable after the third arbitrator is appointed. Both the
foregoing agreement of the parties to arbitrate any and all claims, and the
results, determination, finding, judgment and/or award rendered such
arbitration, shall be final and binding on the parties hereto and may be
specifically enforced by legal proceedings. The parties agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this
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Agreement and that any party may, in its sole discretion, ask for specific
performance and/or injunctive relief in order to enforce or prevent any
violations of the provisions of this Agreement. Subject to the second
preceding sentence, the provisions of this Section 4(h) shall not be deemed to
limit the availability to MTLM, Newell Companies and the Sole Shareholder of
any other legal remedies for breach of the other party's contractual
obligations.
Each party shall bear separately the cost of their respective attorneys,
witnesses and experts in connection with such arbitration. The costs of the
arbitrators shall be borne equally by the parties. Time is of the essence of
this arbitration procedure, and the arbitrators shall be instructed and
required to render their decision within ten (10) days following completion of
the arbitration.
Any and all legal proceedings to compel arbitration hereunder or to
enforce any award or judgment rendered thereby shall be governed by Colorado
law.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application hereof in any circumstance is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement constitutes the full and complete
understanding and agreement of the parties hereto and supersedes all prior
understandings and agreements of the parties hereto, whether oral or written,
as to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
METAL MANAGEMENT, INC.
By: /s/ Gerard M. Jacobs
-----------------------------
Gerard M. Jacobs
Chief Executive Officer
/s/ G. Robert Triesch, III
---------------------------------
G. Robert Triesch, III
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated May 28, 1998, appearing on page F-1 of Metal Management, Inc.'s Annual
Report on Form 10-K for the year ended March 31, 1998 and our report dated May
28, 1998, relating to the supplementary consolidated financial statements of
Metal Management, Inc., appearing in Metal Management, Inc.'s Current Report on
Form 8-K dated July 1, 1998. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Chicago, Illinois
July 1, 1998
