<PAGE> 1
Registration No. 333-______
As filed with the Securities and Exchange Commission on November 23, 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.
RESTRICTED STOCK PLAN
(Full Title of the Plan)
David A. Carpenter
Executive Vice President, Administration,
Legal & Regulatory Affairs 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 Registration
Price Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share, issuable 4,000,000 $1.3755 $5,502,000 $1,530
under the Restricted Stock Shares
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 bid and asked price of the Registrant's Common Stock
as reported on the Nasdaq SmallCap Market for November 16, 1999.
<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"):
- the Registrant's Registration Statement on Form S-8 (file no.
333-10487) dated August 20, 1996;
- the Registrant's Annual Report on Form 10-K (and amendment
thereto on Form 10-K/A) for the fiscal year ended March 31, 1999;
- the Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999;
- the Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999;
- the Registrant's Current Report on Form 8-K dated April 16, 1999;
- the Registrant's Current Report on Form 8-K dated May 7, 1999;
- the Registrant's Current Report on Form 8-K dated July 15, 1999;
- the Registrant's Current Report on Form 8-K dated September 24,
1999; and
- the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-3 (file no.
333-58635) dated July 7, 1998, including any amendment or report
filed for the purpose of updating such description.
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. Restricted 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 Executive Vice President, Administration, Legal
and Regulatory Affairs 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
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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.
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
3
<PAGE> 4
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. Restricted Stock Plan.
5.1 Legal opinion of David A. Carpenter, Executive Vice President,
Administration, Legal & Regulatory Affairs 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.
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<PAGE> 5
(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.
(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 Albert A. Cozzi and David A. Carpenter,
or either 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.
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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. Restricted 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 November 22, 1999.
METAL MANAGEMENT, INC.
By: /s/ ALBERT A. COZZI
-----------------------------------------
Albert A. Cozzi
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 November 22, 1999.
SIGNATURE CAPACITY
- --------- --------
/s/ ALBERT A. COZZI Director, Chairman of the Board and Chief
- ------------------------------- Executive Officer
Albert A. Cozzi (Principal Executive Officer)
/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/ GEORGE A. ISAAC, III Director
- -------------------------------
George A. Isaac, III
/s/ GERARD M. JACOBS Director
- -------------------------------
Gerard M. Jacobs
/s/ KENNETH A. MERLAU Director
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Kenneth A. Merlau
/s/ TIMOTHY T. ORLOWSKI Director
- -------------------------------
Timothy T. Orlowski
/s/ WILLIAM T. PROLER Director
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William T. Proler
/s/ ROBERT C. LARRY Executive Vice President, Finance, Treasurer
- ------------------------------- and Chief Financial Officer
Robert C. Larry (Principal Financial Officer)
/s/ AMIT N. PATEL Vice President, Finance and Controller
- ------------------------------- (Principal Accounting Officer)
Amit N. Patel
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EXHIBIT 4.1
METAL MANAGEMENT, INC.
RESTRICTED STOCK PLAN
1. Purpose. Metal Management, Inc. ("MTLM") has established the Metal
Management, Inc. Restricted Stock Plan (the "Plan") to increase shareholder
value and to advance the interests of MTLM and its subsidiaries (collectively,
the "Company") by awarding equity based incentives designed to attract, retain
and motivate employees and consultants that provides services to the Company and
to align the interests of employees and consultants with those of the
shareholders of MTLM. As used in the Plan, the term "subsidiary" means any
business, whether or not incorporated, in which MTLM has an ownership interest.
2. Administration.
2.1. Administration by Committee. The Plan shall be administered by
the Compensation Committee of the Board of Directors of MTLM (the "Committee"),
which Committee shall consist of two or more persons who constitute
"non-employee directors" within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and "outside
directors" within the meaning of section 162(m) of the Internal Revenue Code of
1986, as amended (the "Code").
2.2. Authority. Subject to the provisions of the Plan, the Committee
shall have the authority to (a) manage and control the operation of the Plan,
(b) interpret and construe the provisions of the Plan, and prescribe, amend and
rescind rules and regulations relating to the Plan, (c) make awards under the
Plan subject to such restrictions, limitations and conditions as it deems
appropriate, (d) modify the terms of, cancel and reissue, or repurchase
outstanding awards, (e) prescribe the form of agreement, certificate or other
instrument evidencing any award under the Plan, (f) correct any defect or
omission and reconcile any inconsistency in the Plan or in any award hereunder,
(g) extend or accelerate the vesting date of any award under the Plan, and (h)
make all other determinations and take all other actions as it deems necessary
or desirable for the implementation and administration of the Plan. The
determination of the Committee on matters within its authority shall be
conclusive and binding on the Company and all other persons.
3. Shares Subject to the Plan.
3.1. Number of Shares Reserved. The shares of common stock of MTLM
("Stock") with respect to which awards may be made under the Plan shall be
shares currently authorized but unissued or currently held or subsequently
acquired by MTLM as treasury shares, including shares purchased in the open
market or in private transactions. Subject to the provisions of subsection 3.2,
the number of shares of Stock which may be issued with respect to awards under
the Plan shall not exceed 4,000,000 shares. Notwithstanding the foregoing, no
shares shall be available for issuance under the Plan until the Plan has been
approved by the shareholders of MTLM.
<PAGE> 2
3.2. Reusage of Shares. In the event of termination (by reason of
forfeiture, expiration, cancellation, surrender or otherwise) of any award under
the Plan, that number of shares of Stock that was subject to the award but not
delivered shall again be available for awards under the Plan; provided, however,
that the following shares shall not be available for reissuance under the Plan:
(i) shares with respect to which the Participant (as defined in subsection 4.1)
has received the benefits of ownership (other than voting rights), either in the
form of dividends or otherwise, (ii) shares which are withheld from any award or
payment under the Plan to satisfy tax withholding obligations (as described in
subsection 6.3), and (iii) shares which are surrendered to fulfill tax
obligations (as described in subsection 6.3).
3.3. Adjustments to Shares Reserved. In the event of any merger,
consolidation, reorganization, recapitalization, spinoff, stock dividend, stock
split, reverse stock split, exchange or other distribution with respect to
shares of Stock or other change in the corporate structure or capitalization
affecting the Stock, the type and number of shares of Stock which are or may be
subject to awards under the Plan and the terms of any outstanding awards shall
be equitably adjusted by the Committee, in its sole discretion, to preserve the
value of benefits awarded or to be awarded to Participants under the Plan.
4. Awards.
4.1 Restricted Stock. Subject to the terms and conditions of the
Plan, the Committee shall designate the employees of and consultants to the
Company to whom shares of "Restricted Stock" shall be awarded under the Plan and
shall determine the number of shares and the terms and conditions of each such
award; provided, however, that newly issued shares shall be issued as Restricted
Stock only to the extent that the Committee determines that past services of the
Participant constitute adequate consideration for at least the par value
thereof. Each individual who is awarded shares of Restricted Stock hereunder
shall be referred to as a "Participant" in the Plan. Each Restricted Stock award
shall entitle the Participant to receive shares of Stock upon the terms and
conditions specified by the Committee and subject to the following provisions of
this Section 4.
4.2 Restrictions. All shares of Restricted Stock transferred
hereunder shall be subject to such restrictions as the Committee may determine,
including, without limitation, any or all of the following:
(a) a required period of employment with the Company, as determined by
the Committee, prior to the vesting of the shares of Restricted Stock;
(b) a prohibition against the sale, assignment, transfer, pledge,
hypothecation or other encumbrance of the shares of Restricted Stock for a
specified period as determined by the Committee; and
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(c) a requirement that the holder of shares of Restricted Stock
forfeit all or a portion of such shares in the event of termination of his
employment with the Company during any period in which such shares are
subject to restrictions.
All restrictions on shares of Restricted Stock awarded pursuant to the Plan
shall expire at such time or times as the Committee shall specify.
4.3 Registration of Shares. Shares of Restricted Stock awarded
pursuant to the Plan shall be registered in the name of the Participant and, if
such shares are certificated, in the discretion of the Committee, may be
deposited in a bank designated by the Committee or with MTLM. The Committee may
require a stock power endorsed in blank with respect to shares of Restricted
Stock whether or not certificated.
4.4 Shareholder Rights. Subject to the terms and conditions of the
Plan, during any period in which shares of Restricted Stock are subject to
forfeiture or restrictions on transfer, each Participant who has been awarded
shares of Restricted Stock shall have such rights of a shareholder with respect
to such shares as the Committee may designate at the time of the award,
including the right to vote such shares and the right to receive all dividends
paid on such shares. Unless otherwise provided by the Committee, stock dividends
or dividends in kind any distributed with respect to shares of Restricted Stock
shall be restricted to the same extent and subject to the same terms and
conditions as the Restricted Stock to which they are attributable.
4.5 Lapse of Restrictions. Subject to the terms and conditions of the
Plan, at the end of any time period during which the shares of Restricted Stock
are subject to forfeiture or restrictions on transfer, such shares will be
delivered free of all restrictions to the Participant (or to the Participant's
legal representative, beneficiary or heir).
4.6 Substitution of Cash. The Committee may, in its sole discretion,
substitute cash equal to the Fair Market Value (as defined in Section 8,
determined as of the date of the distribution) of shares of Stock otherwise
required to be distributed to a Participant in accordance with this Section 4.
4.7. Performance-Based Compensation. To the extent that the Committee
determines that it is necessary or desirable to conform any awards under the
Plan with the requirements applicable to "Performance-Based Compensation", as
that term is used in section 162(m)(4)(C) of the Code, it may, at or prior to
the time an award is granted, take such steps and impose such restrictions with
respect to such award as it determines to be necessary or desirable.
5. Expiration of Awards. The "Expiration Date" with respect to an award
of Restricted Stock under the Plan means the date established as the Expiration
Date by the Committee at the time of the grant; provided, however, that the
Expiration Date with respect to any award shall not be later than the ten-year
anniversary of the date on which the award is granted.
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<PAGE> 4
6. Miscellaneous.
6.1. Effective Date. The Plan shall be effective upon the later of (a) its
approval by the Board of Directors of MTLM or (b) its approval by the
shareholders of MTLM. The Plan shall be unlimited in duration and, in the event
of Plan termination, shall remain in effect as long as any awards under it are
outstanding.
6.2. Limit on Distribution. Distribution of shares of Stock under the Plan
shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, MTLM shall have no
liability to deliver any shares of Stock under the Plan unless such
delivery would comply with all applicable laws and the applicable
requirements of any securities exchange or similar entity.
(b) In the case of a Participant who is subject to Section 16(a) and 16(b)
of the Exchange Act, the Committee may, at any time, add such
conditions and limitations to any award to such Participant, or any
feature of any such award, as the Committee, in its sole discretion,
deems necessary or desirable to comply with Section 16(a) or 16(b) and
the rules and regulations thereunder or to obtain any exemption
therefrom.
(c) The transfer of shares of Stock under the Plan may be effected on a
non-certificated basis, to the extent not prohibited by applicable law
or the rules of any stock exchange.
6.3. Withholding. All awards under the Plan are subject to withholding of
all applicable taxes, which withholding obligations may be satisfied, with the
consent of the Committee, through the surrender of shares of Stock which the
Participant already owns, or to which a Participant is otherwise entitled under
the Plan.
6.4. Transferability. Awards under the Plan are not transferable except as
designated by a Participant by will or by the laws of descent and distribution.
6.5. Notices. Any notice or document required to be filed with the
Committee under the Plan will be properly filed if delivered or mailed by
registered mail, postage prepaid, to the Committee, in care of MTLM, at its
principal executive offices. The Committee may, by advance written notice to
affected persons, revise such notice procedure from time to time. Any notice
required under the Plan (other than a notice of election) may be waived by the
person entitled to notice.
6.6. Agreement With MTLM. At the time of an award to a Participant under
the Plan, the Committee may require a Participant to enter into an agreement
with MTLM (the
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<PAGE> 5
"Agreement") in a form specified by the Committee, agreeing to the terms and
conditions of the Plan and to such additional terms and conditions, not
inconsistent with the Plan, as the Committee may, in its sole discretion,
prescribe.
6.7. No Contract of Employment. The Plan does not constitute a contract of
employment, and selection as a Participant will not give any employee the right
to be retained in the employ of the Company, nor any right or claim to any
benefit or payment under the Plan, unless such right or claim has specifically
accrued under the terms of the Plan. Except as otherwise provided in the Plan,
no award under the Plan shall confer upon the holder thereof any right as a
shareholder of MTLM prior to the date on which he fulfills all service
requirements and other conditions for receipt of such rights.
6.8. Evidence. Evidence required of anyone under the Plan may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable, and signed, made or presented by the proper
party or parties.
6.9. Gender and Number. Where the context admits, words in one gender shall
include the other gender, words in the singular shall include the plural and the
plural shall include the singular.
7. Amendment and Termination.
The Board may, at any time, amend or terminate the Plan, provided that,
subject to subsection 3.3 (relating to certain adjustments to shares), no
amendment or termination may materially adversely affect the rights of any
Participant or beneficiary under any award made under the Plan prior to the date
such amendment is adopted by the Board. Notwithstanding the foregoing or any
other provision of the Plan or any award agreement, the Board or the Committee
may amend the Plan or the terms of any award to the extent it deems necessary to
preserve pooling-of-interest accounting treatment for any transaction which is
intended to be accounted for through such accounting method.
8. Definition of Fair Market Value. For purposes of the Plan, the term
"Fair Market Value" shall mean:
(a) If the Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq National Market
of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the Fair Market Value of a Share of Stock
shall be the closing sales price for such stock (or the closing bid,
if no sales were reported) as quoted on such system or exchange (or
the exchange with the greatest volume of trading in Stock) on the last
market trading day prior to the day of determination, as reported in
The Wall Street Journal or such other source as the Administrator
deems reliable; and
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<PAGE> 6
(b) If the Stock is quoted on the NASDAQ System (but not on the Nasdaq
National Market thereof) or is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market
Value of a Share of Stock shall be the mean between the high bid and
low asked prices for the Stock on the last market trading day prior to
the day of determination, as reported in The Wall Street Journal or
such other source as the Administrator deems reliable;
In the absence of an established market for the Stock, the Fair Market Value
shall be determined in good faith by the Committee.
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<PAGE> 1
EXHIBIT 5.1
[METAL MANAGEMENT INC. LETTERHEAD]
November 22, 1999
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Re: Metal Management, Inc.
Registration Statement on Form S-8 -- Restricted 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 4,000,000 shares of Common Stock, par value $.01 per share ("Common
Stock"), of the Company available for issuance under the Company's Restricted
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 November 22, 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
Executive Vice President, Administration,
Legal & Regulatory Affairs 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
November 22, 1999
