<PAGE> 1
Registration No. 333-______
As filed with the Securities and Exchange Commission on June 30, 1999
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METAL MANAGEMENT, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
94-2835068
(I.R.S. Employer Identification No.)
500 N. DEARBORN STREET, SUITE 405, CHICAGO, IL 60610
(Address of Principal Executive Offices) (Zip Code)
METAL MANAGEMENT, INC.
1995 STOCK PLAN
(Full Title of the Plan)
DAVID A. CARPENTER
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
METAL MANAGEMENT, INC.
500 NORTH DEARBORN STREET, SUITE 405
CHICAGO, ILLINOIS 60610
(Name and Address of Agent for Service)
(312) 645-0700
(Telephone Number, including Area Code, of Agent for Service)
with a copy to:
PAUL W. THEISS
MAYER, BROWN & PLATT
190 SOUTH LASALLE ST.
CHICAGO, ILLINOIS 60603
(312) 782-0600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities to Be Amount to Be Offering Price Aggregate Amount of
Registered Registered Per Share (1) Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share, issuable 3,900,000 Shares $1.703 $6,641,700 $1,847
under the 1995 Stock Plan
==================================================================================================
</TABLE>
(1) The offering price for such shares is estimated pursuant to Rule 457(c)
and (h) solely for the purpose of calculating the registration fee and
is based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq SmallCap Market for
June 23, 1999. This Registration Statement relates to an additional
3,900,000 shares of the Registrant's Common Stock authorized for
issuance under the Metal Management, Inc. 1995 Stock Plan. An aggregate
of 1,300,000 shares of the Registrant's Common Stock issuable under the
Metal Management, Inc. 1995 Stock Plan have previously been registered
with the Commission.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents filed with the Securities and Exchange
Commission (the "Commission"):
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended March 31, 1999.
(2) Description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-3 (Commission File No. 333-58635)
dated July 7, 1998.
All documents filed by the Registrant with the Commission under
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of this Registration Statement and before the
filing of a post-effective amendment which indicates that all securities offered
hereunder pursuant to the Metal Management, Inc. 1995 Stock Plan have been sold
or which deregisters all securities then remaining unsold, will be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
David A. Carpenter is Vice President, General Counsel and Secretary of
the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the provisions of Section 145(a) of the Delaware General
Corporation Law, the Registrant 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 Registrant) because such person
is or was a director or officer of the Registrant 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 Registrant'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 Registrant
to procure a judgement in its favor, Section 145(b) of the Delaware General
Corporation Law provides that the Registrant 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
Registrant to procure a judgment in its favor because such person is or was a
director or officer of the Registrant against expenses (including attorneys=
fee) 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
Registrant'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
Registrant 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.
2
<PAGE> 3
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
legal counsel in a written opinion of such quorum cannot be obtained or if a
quorum of disinterested directors so directs, or (c) the shareholders of the
Registrant.
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 Registrant itself would have the power to indemnify any such
director or officer against such liability. The Registrant has purchased this
type of insurance, has paid and intends to continue paying the premiums thereon.
The Registrant's Amended and Restated Certificate of Incorporation
provides for the indemnification of directors and officers of the Registrant to
the fullest extent permitted by Section 145 of the Delaware General Corporation
Law, as the same may be amended or supplemented. The Amended and Restated
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 and Restated Certificate of Incorporation also contains a
provision that eliminates the personal liability of the Registrant's directors
to the Registrant or its shareholders of 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 Registrant 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 of 1933, as amended (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 Registrant 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 Registrant is not aware of any material threatened
or ongoing litigation or proceeding that may result in a claim for such
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Metal Management, Inc. 1995 Stock Plan (incorporated by
reference to Exhibit 4.9 of the Registrant's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1998).
3
<PAGE> 4
5.1 Legal opinion of David A. Carpenter, Vice President, General
Counsel and Secretary of the Registrant.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of David A. Carpenter (included in the opinion filed
as Exhibit 5.1).
24.1 Power of Attorney (contained on the page immediately preceding
the signature page).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
4
<PAGE> 5
(c) Filing of Registration Statement on Form S-8.
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints T. Benjamin Jennings, Albert A. Cozzi and
David A. Carpenter, or any of them acting individually, as his attorney-in-fact
and agents, with full power of substitution, for him and in any and all
capacities, to sign any and all amendments to this Registration Statement on
Form S-8, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact and agents, or his
substitutes, may do or cause to be done by virtue hereof.
5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 with respect to shares of Common
Stock offered under the Metal Management, Inc. 1995 Stock Plan (the "Plan") and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois on June 30, 1999.
METAL MANAGEMENT, INC.
By: /s/ T. Benjamin Jennings
--------------------------------------
T. Benjamin Jennings
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on June 30, 1999.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
- --------- --------
<S> <C>
/s/ T. Benjamin Jennings Director, Chairman of the Board and Chief Executive Officer
- ------------------------------------------ (Principal Executive Officer)
T. Benjamin Jennings
/s/ Albert A. Cozzi Director, President and Chief Operating Officer
- ------------------------------------------
Albert A. Cozzi
/s/ George A. Isaac III Director and Executive Vice President
- ------------------------------------------
George A. Isaac III
/s/ Joseph F. Naporano Director and Vice Chairman of the Board
- ------------------------------------------
Joseph F. Naporano
/s/ Frank J. Cozzi Director and Vice President
- ------------------------------------------
Frank J. Cozzi
/s/ Gregory P. Cozzi Director
- ------------------------------------------
Gregory P. Cozzi
/s/ Gerard M. Jacobs Director
- ------------------------------------------
Gerard M. Jacobs
/s/ Eugene C. McCaffery Director
- ------------------------------------------
Eugene C. McCaffery
/s/ Kenneth A. Merlau Director
- ------------------------------------------
Kenneth A. Merlau
/s/ Timothy T. Orlowski Director
- ------------------------------------------
Timothy T. Orlowski
/s/ William T. Proler Director
- ------------------------------------------
William T. Proler
/s/ Robert C. Larry Executive Vice President, Finance, Treasurer and Chief Financial
- ------------------------------------------ Officer (Principal Financial and Accounting Officer)
Robert C. Larry
</TABLE>
6
<PAGE> 1
EXHIBIT 5.1
[METAL MANAGEMENT INC. LETTERHEAD]
June 30, 1999
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Re: Metal Management Inc.
Registration Statement on Form S-8 -- 1995 Stock Plan
Ladies and Gentlemen:
As General Counsel of Metal Management Inc., a Delaware corporation (the
"Company"), I am familiar with the corporate proceedings taken and to be taken
in connection with the registration under the Securities Act of 1933, as
amended, of 3,900,000 additional shares of Common Stock, $.01 par value per
share ("Common Stock"), of the Company available for issuance under the
Company's 1995 Stock Plan (the "Plan").
I have examined the Company's Registration Statement on Form S-8 (relating to
the Common Stock to be issued under the Plan) in the form to be filed with the
Securities and Exchange Commission on or about June 30, 1999 (the "Registration
Statement") and I have examined and am familiar with the Amended and Restated
Certificate of Incorporation and the Restated By-laws of the Company and the
Plan. I have also examined such other documents, records and certificates of the
Company as I consider necessary for the purpose of this opinion.
Based on the foregoing, I am of the opinion that the shares of Common Stock to
be issued pursuant to the Plan have been duly authorized and will, upon due
issuance and sale thereof, be legally issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ David A. Carpenter
- ----------------------------------
David A. Carpenter
Vice President, General Counsel
and Secretary
Metal Management Inc.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated June 25, 1999 relating to the
financial statements and financial statement schedule, which appear in Metal
Management, Inc.'s Annual Report on Form 10-K for the year ended March 31, 1999.
PricewaterhouseCoopers LLP
Chicago, Illinois
June 30, 1999
