AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 2002
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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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.)
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METAL MANAGEMENT, INC.
500 N. DEARBORN ST., SUITE 405
CHICAGO, IL 60610
(312) 645-0700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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ROBERT C. LARRY
CHIEF FINANCIAL OFFICER
METAL MANAGEMENT, INC.
500 N. DEARBORN ST., SUITE 405
CHICAGO, IL 60610
(312) 645-0700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies requested to:
E. WILLIAM BATES, II, ESQ.
KING & SPALDING
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 556-2100
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
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, 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, 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
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PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE (2) FEE
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Common Stock $.01 par value per
share 1,807,500 $3.75 $6,778,125 $624
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TITLE OF EACH CLASS OF SECURITIES TO
BE REGISTERED
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Common Stock $.01 par value per
share
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(1) Includes 987,500 shares of common stock issued or issuable upon the exercise
of Series B Warrants; 500,000 shares of common stock issued or issuable upon
the exercise of Series C Warrants; 60,000 shares of common stock issued or
issuable upon the exercise of Director Warrants; and 260,000 shares of
common stock issued or issuable upon the exercise of Employee Warrants.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 based on a price of
$3.75 per share, the average of the bid and asked price of Metal Management,
Inc.'s common stock on the Nasdaq over-the-counter bulletin board (the "OTC
Bulletin Board" or the "OTC market") on October 16, 2002. There was no
trading of Metal Management, Inc.'s common stock on the dates of October 17,
2002 through October 23, 2002.
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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.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting any offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 24, 2002
PROSPECTUS
METAL MANAGEMENT, INC.
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1,807,500 SHARES OF COMMON STOCK
(PAR VALUE $.01 PER SHARE)
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This prospectus relates to up to 1,807,500 shares of Metal Management, Inc.
(herein referred to as "Metal Management," the "Company," "we," "our," or
"ours") common stock which may be sold from time to time by the selling
securityholders identified in this prospectus. The 1,807,500 shares offered by
this prospectus represent 987,500 shares that have been issued or are issuable
upon the exercise of our Series B Warrants ("Series B Warrants"), 500,000 shares
that have been issued or are issuable upon the exercise of our Series C Warrants
("Series C Warrants"), 60,000 shares that have been issued or are issuable upon
the exercise of warrants we issued on May 3, 2002 to certain directors of the
Company ("Director Warrants"), and 260,000 shares that have been issued or are
issuable upon the exercise of warrants we issued on May 22, 2002 to certain
employees of the Company ("Employee Warrants"). These warrants are collectively
referred to as the "Warrants."
Our common stock is listed on the Nasdaq OTC Bulletin Board under the
symbol "MLMG." On October 16, 2002, the last sales price of our common stock as
reported on the Nasdaq market was $3.75 per share There was no trading of our
common stock on the dates of October 17, 2002 through October 23, 2002.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "INFORMATION
REGARDING FORWARD-LOOKING STATEMENTS" BEGINNING ON PAGE 2 FOR A DISCUSSION OF
THESE RISKS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 2002.
TABLE OF CONTENTS
Metal Management, Inc....................................... 1
Information Regarding Forward-Looking Statements............ 2
Use of Proceeds............................................. 2
Selling Stockholders........................................ 2
Plan of Distribution........................................ 4
Legal Matters............................................... 6
Experts..................................................... 6
Where You Can Find More Information......................... 6
i
METAL MANAGEMENT, INC.
We are one of the largest full-service metals recyclers in the United
States, with recycling facilities located in 13 states. We enjoy leadership
positions in many major metropolitan markets, including Birmingham, Chicago,
Cleveland, Denver, Hartford, Houston, Memphis, Newark, Phoenix, Salt Lake City,
Toledo and Tucson. Through an equity ownership position in Southern Recycling,
L.L.C., the largest scrap metals recycler in the Gulf Coast region, we
participate in this strategically important market. We also hold important
market positions in several product segments, including stainless steel, copper
and aluminum generated from utilities, telecommunication providers and titanium
and other high-temperature nickel alloys for the aerospace industry.
We have achieved a leading position in the metals recycling industry
primarily by implementing a national strategy of completing and integrating
regional acquisitions. In making acquisitions, we have focused on major
metropolitan markets where prime industrial and obsolete scrap (automobiles,
appliances and industrial equipment) is readily available and from where we
believe we can better serve our customer base. In pursuing this strategy, we
have acquired regional platform companies to serve as platforms into which
subsequent acquisitions could be integrated. We believe that through the
integration of our acquired businesses, we have enhanced our competitive
position and profitability of the operations because of broader distribution
channels, improved managerial and financial resources, greater purchasing power
and increased economies of scale.
Our operations consist primarily of the collection and processing of
ferrous and non-ferrous metals for resale to metals brokers, steel producers and
processors of other metals. We collect industrial scrap and obsolete scrap,
process it into reusable forms and supply the recycled metals to our customers,
including electric arc furnace mills, integrated steel mills, foundries,
secondary smelters and metals brokers. We believe that we provide one of the
most comprehensive offerings of both ferrous and non-ferrous scrap metals in the
industry. Our ferrous products primarily include shredded, sheared, cold
briquetted, bundled scrap and other purchased scrap, such as turnings, cast and
broken furnace iron. We also process non-ferrous metals, including aluminum,
copper, stainless steel, brass, titanium and high-temperature alloys, using
similar techniques and through application of our proprietary technologies.
Our common stock, par value $.01 per share, is traded on the Nasdaq OTC
market under the symbol "MLMG." Additionally, our Series A Warrants, par value
$.01 per share, are traded on the Nasdaq OTC market under the symbol "MLMGW." We
are incorporated under the laws of the State of Delaware and our principal
executive offices are located at 500 N. Dearborn St., Suite 405, Chicago, IL
60610, and our telephone number is (312) 645-0700.
1
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This prospectus may include or incorporate by reference "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933,
including statements regarding our expectations, hopes, beliefs, intentions or
strategies regarding the future and may be identified by the use of words (or
the negative thereof) such as , "believe," "intend," "anticipate," "expects" and
other words of similar import. These words indicate "forward-looking statements"
and are thus prospective. These statements reflect the current expectations of
Metal Management, Inc. regarding (i) our future profitability and liquidity and
that of our subsidiaries, (ii) the benefits to be derived from the execution of
our industry consolidation strategy and (iii) other future developments in our
business or the scrap metals recycling industry.
Forward-looking statements may also be found in the information
incorporated by reference under the heading "Where You Can Find More
Information," and may include statements relating to:
- our business development activities;
- sales and marketing efforts;
- the status of material contractual arrangements including the negotiation
or re-negotiation of such arrangements;
- future capital expenditures;
- the effects of regulation and competition on our business and future
operating performance;
- the results, benefits and risks associated with integration of acquired
companies; and
- the likely outcome and the effect of legal proceedings on our business
and operations and/or the resolution or settlement thereof.
Investors are cautioned that any such forward-looking statements are not
guarantees of future performance and involve risks and uncertainties, and that
actual results may differ materially from those possible results discussed in
the forward-looking statements as a result of various factors. Consequently, you
should regard forward-looking statements only as our current plans, estimates
and beliefs. All forward-looking statements and reasons why results may differ
included in this prospectus are made as of the date hereof, and we do not
promise to notify you if we learn that our assumptions or projections are wrong
for any reason. Before you decide to invest in shares of common stock you should
be aware that various risks, which are described under the heading, "Risk
Factors," in Part I, Item 1 of our most recent 10-K, filed with the SEC on June
13, 2002, as amended, modified or supplemented in any future filing with the
SEC, could cause our actual results to differ from what we have stated in any
forward-looking statements.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale by the selling
securityholders of the shares of common stock, although we may receive up to
approximately $13.8 million upon the exercise of the Warrants to purchase common
stock.
SELLING STOCKHOLDERS
The shares of common stock being offered by the selling securityholders
represent 1,807,500 shares that have been issued or are issuable upon exercise
of the Warrants. We are registering the shares so that the selling
securityholders may offer the shares for resale from time to time.
The table below lists the selling securityholders and other information
regarding the beneficial ownership of the common stock by each of the selling
securityholders. The second column lists, for each selling securityholder, the
number of shares of common stock held by such securityholder or issuable
(pursuant to Options or Warrants) to such securityholder within 60 days of
September 30, 2002. The third column lists the shares of common stock
(representing shares issued or issuable upon exercise of the Warrants,
including, shares excluded from the second column because the related Warrants
are not exercisable within 60 days of September 30, 2002) being offered by this
prospectus by each selling securityholder. The fourth column assumes
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the sale of all of the shares offered by each selling securityholder. The
selling securityholders may sell all, some or none of their shares in this
offering. See "Plan of Distribution."
NUMBER OF SHARES
NUMBER OF SHARES TO BE BENEFICIALLY OWNED
SHARES OFFERED FOR AFTER THE OFFERING
BENEFICIALLY THE SELLING ------------------
NAME OF OWNED PRIOR TO STOCKHOLDER'S NUMBER OF
SELLING STOCKHOLDER THE OFFERING ACCOUNT(+) SHARES %
------------------- -------------- ------------- --------- ---
Robert Bonnes....................................... 2,000 4,000 -- *
Michael Collins..................................... 45,377(1) 70,000 377(1) *
Albert Cozzi........................................ 329,786(2) 395,000 73,119(2) *
Frank Cozzi......................................... 169,469(3) 185,000 50,302(3) *
Gregory Cozzi....................................... 61,284(4) 75,000 13,784(4) *
John DiLacqua....................................... 15,000(5) 15,000 -- *
Daniel Dienst....................................... 25,000(6) 15,000 10,000 *
Charlie Fritz....................................... 19,625(7) 30,000 458(7) *
Francis Garrigues................................... 22,500 35,000 -- *
James Gill.......................................... 750 1,500 -- *
Mike Henderson...................................... 2,000 4,000 -- *
Robert Larry........................................ 86,666(8) 135,000 -- *
Kevin McGuinness.................................... 15,000(9) 15,000 -- *
Michael Mitchell.................................... 13,359(10) 20,000 26(10) *
James Mosebach...................................... 900(11) 1,500 150(11) *
Ken Mueller......................................... 21,667 35,000 -- *
James Nathan........................................ 36,261 40,000 9,594 *
Dennis O'Loughlin................................... 20,000 30,000 -- *
Barry Panitz........................................ 12,267(12) 17,500 1,434(12) *
Monte Panitz........................................ 2,500 5,000 -- *
Amit Patel.......................................... 18,410(13) 30,000 77(13) *
Alan Perlman........................................ 69,445(14) 35,000 46,945(14) *
Ronald Proler....................................... 24,774(15) 25,000 8,107(15) *
William Proler...................................... 66,686(16) 100,000 4,186(16) *
Alan Ratner......................................... 53,459(17) 85,000 126(17) *
Harold Rouster...................................... 15,000(18) 15,000 -- *
Larry Snyder........................................ 65,099(19) 100,000 99(19) *
Brian Souza......................................... 2,500 5,000 -- *
John Tiziani........................................ 15,348(20) 24,000 15(20) *
Bobby Triesch....................................... 34,906(21) 35,000 12,406(21) *
Michael Tryon....................................... 110,264(22) 170,000 264(22) *
Jim Ustian.......................................... 22,500 35,000 -- *
Stefanie Vaught..................................... 15,369(23) 20,000 2,036(23) *
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* less than 1%
+ Number of shares may be higher due to inclusion of shares issuable upon
exercise of Warrants not currently exercisable or exercisable within 60
days of September 30, 2002.
(1) Michael Collins is the President of Metal Management Ohio, Inc. and a
member of the Executive Committee. Includes 333 shares of common stock
issuable upon exercise of Series A Warrants.
(2) Albert Cozzi is the Chairman of the Board and Chief Executive Officer of
the Company. Includes 64,518 shares of common stock issuable upon exercise
of Series A Warrants.
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(3) Frank Cozzi is a Vice President of the Company, President of Metal
Management Midwest, Inc. and a member of the Executive Committee. Mr. F.
Cozzi was previously a Director of the Company. Includes 43,978 shares of
common stock issuable upon exercise of Series A Warrants.
(4) Gregory Cozzi was previously a Director of the Company. Includes 12,162
shares of common stock issuable upon exercise of Series A Warrants.
(5) John DiLacqua is a Director of the Company.
(6) Daniel Dienst is a Director of the Company. Mr. Dienst is a managing
director of CIBC World Markets Corp. ("CIBC"), a company which represented
the Official Committee of Unsecured Creditors in the Company's Chapter 11
bankruptcy proceedings. Professional fees paid to CIBC during the fiscal
years ended March 31, 2002 and 2001 were approximately $2.6 million and
$0.4 million, respectively.
(7) The Company rents a property, on which we operate a scrap yard, from Mr.
Fritz. The property is rented on a month-to-month basis. The monthly rent
paid by the Company to Mr. Fritz is $5,000. Includes 405 shares of common
stock issuable upon exercise of Series A Warrants.
(8) Robert Larry is Executive Vice-President, Finance, Secretary and Chief
Financial Officer of the Company. Mr. Larry is also a member of the
Executive Committee.
(9) Kevin McGuinness is a Director of the Company.
(10) Includes 23 shares of common stock issuable upon exercise of Series A
Warrants.
(11) Includes 133 shares of common stock issuable upon exercise of Series A
Warrants.
(12) Includes 1,266 shares of common stock issuable upon exercise of Series A
Warrants.
(13) Amit Patel is Vice-President, Finance and Corporate Controller of the
Company. Includes 69 shares of common stock issuable upon exercise of
Series A Warrants.
(14) Includes 1,537 shares of common stock issuable upon exercise of Series A
Warrants.
(15) Includes 7,153 shares of common stock issuable upon exercise of Series A
Warrants.
(16) William Proler is the President of Proler Southwest Inc. and a member of
the Executive Committee. Mr. Proler was previously a Director of the
Company. Includes 3,695 shares of common stock issuable upon exercise of
Series A Warrants.
(17) Alan Ratner is the President of Metal Management Northeast, Inc. and a
member of the Executive Committee. Includes 111 shares of common stock
issuable upon exercise of Series A Warrants.
(18) Harold Rouster is a Director of the Company.
(19) Larry Snyder is Executive Vice-President, Non-ferrous of the Company and a
member of the Executive Committee. Includes 88 shares of common stock
issuable upon exercise of Series A Warrants.
(20) Includes 13 shares of common stock issuable upon exercise of Series A
Warrants.
(21) Includes 10,947 shares of common stock issuable upon exercise of Series A
Warrants.
(22) Michael Tryon is President and Chief Operating Officer of the Company and a
member of the Executive Committee. Includes 233 shares of common stock
issuable upon exercise of Series A Warrants.
(23) Stefanie Vaught is the Treasurer of the Company. Includes 32 shares of
common stock issuable upon exercise of Series A Warrants.
PLAN OF DISTRIBUTION
We are registering the shares of common stock issued or issuable upon
exercise of the Warrants to permit the resale of the shares of common stock from
time to time after the date of this prospectus. We will not receive any of the
proceeds from the sale by the selling securityholders of the shares of common
stock, although we may receive up to approximately $13.8 million upon exercise
of the Warrants. We will bear all fees and expenses incident to the registration
of the shares of common stock.
The selling securityholders may sell all or a portion of the common stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents. If the common stock
is sold through underwriters or broker-dealers, the selling securityholder will
be responsible for underwriting discounts or commissions or agent's commissions.
The common stock may be sold in one or more
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transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated prices.
These sales may be effected in transactions, which may involve crosses or block
transactions,
(1) on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale,
(2) in the over-the-counter market,
(3) in transactions otherwise than on these exchanges or systems or in the
over-the- counter market,
(4) through the writing of options, whether such options are listed on an
options exchange or otherwise, or
(5) by any other legally available means.
If the selling securityholders effect such transactions by selling shares
of common stock to or through underwriters, broker-dealers or agents, such
underwriters, brokers-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling securityholders or
commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, brokers-dealers or agents may be in
excess of those customary in the types of transactions involved). In connection
with sales of the common stock or otherwise, the selling securityholders may
enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the common stock in the course of hedging in positions they
assume. The selling securityholders may also sell shares of common stock short
and deliver shares of common stock covered by this prospectus to close out short
positions, provided that the short sale is made after the registration statement
is declared effective and a copy of this prospectus is delivered in connection
with the short sale. The selling securityholders may also loan or pledge shares
of common stock to broker-dealers that in turn may sell such shares. Our
directors and executive officers are not permitted to make short sales under our
Insider Trading Compliance Program.
The selling securityholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commissions paid, or any
discounts or concessions allowed to any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of common stock is made, a prospectus
supplement, if required, will be distributed which will set forth the aggregate
amount of shares of common stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
securityholder and any discounts, commissions or concessions allowed or
reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be
sold in such states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
There can be no assurance that any selling securityholder will sell any or
all of the shares of common stock registered pursuant to the shelf registration
statement, of which this prospectus forms a part.
The selling securityholders and any other person participating in such
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation, Regulation
M of the Exchange Act, which may limit the timing of purchases and sales of any
of the shares of common stock by the selling securityholders and any other
participating person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common stock. All of the
foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with
respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock
estimated to be $35,000 in total, including, without limitation, Securities and
Exchange Commission filing fees, expenses of compliance with state
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securities or "blue sky" laws and transfer agent fees relating to sales pursuant
to this prospectus; provided, however, that the selling securityholders will pay
all underwriting discounts and selling commissions, if any.
Once sold under the shelf registration statement, of which this prospectus
forms a part, the shares of common stock will be freely tradable in the hands of
persons other than our affiliates.
LEGAL MATTERS
Legal matters related to the issuance of the shares of common stock being
offered by this prospectus will be passed upon for us by the law firm of King &
Spalding, New York, New York.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended March 31, 2002
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read, or copy,
any document we file at the public reference room maintained by the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following regional
offices of the Commission: New York Regional Office, 233 Broadway, New York, New
York 10279; and Chicago Regional Office, Citicorp Center, 5000 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of this information can be
obtained by mail from the Commission's Public Reference Branch at 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, our filings with the
Commission are also available to the public on the Commission's internet website
at http://www.sec.gov.
We have filed with the Commission a registration statement on Form S-3
under the Securities Act of 1933 with respect to the securities offered in this
offering. This prospectus does not contain all of the information set forth in
the registration statement and its exhibits and schedules. Statements made by us
in this prospectus as to the contents of any contract, agreement or other
document referred to in this prospectus are not necessarily complete. For a more
complete description of these contracts, agreements or other documents, you
should carefully read the exhibits to the registration statement.
The registration statement, together with its exhibits and schedules, which
we filed with the Commission, may also be reviewed and copied at the public
reference facilities of the Commission located at the addresses set forth above.
Please call the Commission at 1-800-SEC-0330 for further information on its
public reference facilities.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information we later file with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we will make with
the SEC under Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act until this
offering is complete:
- Our Annual Report on Form 10-K for the fiscal year ended March 31, 2002
(File No. 0-14836);
- Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2002;
- Our Current Report on Form 8-K filed with the SEC on August 13, 2002; and
- The description of our common stock and our Series A Warrants, which is
contained in our Registration Statement on Form 8-A filed with the SEC on
August 23, 2001 pursuant to Section 12 of the Exchange Act, and any
description of any of our securities which is contained in any
registration statement filed after the date hereof under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose
of updating any such description.
6
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC registration fee........................................ $ 624
Legal fees and expenses..................................... $20,000
Accounting fees and expenses................................ $ 5,200
Printing expenses........................................... $ 5,000
Miscellaneous............................................... $ 4,176
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Total..................................................... $35,000
The Company will bear all of the costs and expenses of the Offering. The
selling stockholders will not pay any of the expenses of the Offering.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal or investigative (other than an action by or
in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor, against expenses (including
attorneys' fees) actually and reasonably incurred in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or such other court in which such action or suit was brought shall
determine 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 indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation, in its certificate of
incorporation, to limit or eliminate, subject to some statutory limitations, the
liability of directors to the corporation or its stockholders for monetary
damages for breaches of fiduciary duty, except for liability (a) for any breach
of the director's duty of loyalty to the corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption), or
(d) for any transaction from which the director derived an improper personal
benefit. Metal Management, Inc.'s Certificate of Incorporation provides that
Metal Management, Inc.'s directors shall not be liable to the Company or its
stockholders for breach of fiduciary duty as a director, except for liability
arising out of clauses (a) through (d) in the preceding paragraph. The
Certificate of Incorporation and Metal Management, Inc.'s by-laws further
provide that Metal Management, Inc. shall indemnify its directors and officers
to the fullest extent permitted by the DGCL. In addition, Metal Management, Inc.
maintains director and officer liability insurance policies.
II-1
ITEM 16. EXHIBITS
4.1* Form of Series B Warrant Agreement.
4.2* Form of Series C Warrant Agreement.
4.3 Form of Warrant to Purchase Shares of Common Stock of Metal
Management, Inc. dated May 3, 2002 ("Director Warrant").
4.4 Form of Warrant to Purchase Shares of Common Stock of Metal
Management, Inc. dated May 22, 2002 ("Employee Warrant").
5.1 Opinion of King & Spalding.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of King & Spalding (Included in Exhibit 5.1 filed
herewith).
---------------
* Incorporated by reference to Exhibits 10.14 and 10.15 of the Company's Annual
Report on Form 10-K for the year ended March 31, 2001.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-2
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
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-3 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 October 24, 2002.
METAL MANAGEMENT, INC.
By: /s/ ALBERT A. COZZI
---------------------------------------
Name: Albert A. Cozzi
Title: Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Albert A. Cozzi and Robert C. Larry and each of
them acting individually, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and 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 ratifying and confirming all that each of
said attorneys-in-fact, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 24th day of October, 2002.
SIGNATURE TITLE
--------- -----
/s/ ALBERT A. COZZI Director, Chairman of the Board and Chief Executive
------------------------------------------------ Officer (Principal Executive Officer)
Albert A. Cozzi
/s/ MICHAEL W. TRYON President and Chief Operating Officer
------------------------------------------------
Michael W. Tryon
/s/ ROBERT C. LARRY Executive Vice President, Finance and Chief Financial
------------------------------------------------ Officer (Principal Financial Officer)
Robert C. Larry
/s/ AMIT N. PATEL Vice President, Finance and Controller
------------------------------------------------ (Principal Accounting Officer)
Amit N. Patel
/s/ DANIEL W. DIENST Director
------------------------------------------------
Daniel W. Dienst
/s/ JOHN T. DILACQUA Director
------------------------------------------------
John T. DiLacqua
/s/ KEVIN P. MCGUINNESS Director
------------------------------------------------
Kevin P. McGuinness
/s/ HAROLD J. ROUSTER Director
------------------------------------------------
Harold J. Rouster
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION OF EXHIBITS
------- -----------------------
4.1* Form of Series B Warrant Agreement.
4.2* Form of Series C Warrant Agreement.
4.3 Form of Warrant to Purchase Shares of Common Stock of Metal
Management, Inc. dated May 3, 2002 ("Director Warrant").
4.4 Form of Warrant to Purchase Shares of Common Stock of Metal
Management, Inc. dated May 22, 2002 ("Employee Warrant").
5.1 Opinion of King & Spalding.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of King & Spalding (Included in Exhibit 5.1 filed
herewith).
---------------
* Incorporated by reference to Exhibits 10.14 and 10.15 of the Company's Annual
Report on Form 10-K for the year ended March 31, 2001.