AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 2002
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
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 Number)
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METAL MANAGEMENT, INC.
500 N. DEARBORN STREET, 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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METAL MANAGEMENT, INC. 2002 INCENTIVE STOCK PLAN
(Full title of the Plan)
Robert C. Larry
Chief Financial Officer
Metal Management, Inc.
500 N. Dearborn Street, 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
King & Spalding
1185 Avenue of the Americas
New York, New York 10036
(212) 556-2100
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
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Common Stock, $.01 par value per
share............................ 2,000,000 $3.75 $7,500,000 $690
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(1) 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.
THIS REGISTRATION STATEMENT ("REGISTRATION STATEMENT") ON FORM S-8 RELATES
TO THE OFFER AND SALE OF UP TO 2,000,000 SHARES OF COMMON STOCK (THE "COMMON
STOCK") OF METAL MANAGEMENT, INC. (THE "COMPANY"), TO BE ISSUED TO THE COMPANY'S
EMPLOYEES, CONSULTANTS AND DIRECTORS PURSUANT TO THE METAL MANAGEMENT, INC. 2002
INCENTIVE STOCK PLAN (THE "PLAN").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference into this Registration Statement:
1. The Annual Report of the Company on Form 10-K for the fiscal year ended
March 31, 2002;
2. All reports filed by the Company pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since March 31, 2002; and
3. The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A dated August 23, 2001, filed under
Section 12(g) of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all such securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. 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
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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.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
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5.1 Opinion of King & Spalding.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
99.1 Metal Management, Inc. 2002 Incentive Stock Plan.
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in this
Registration Statement. To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to of Regulation
S-K if, in the aggregate, the changes in volume and price represent no
more than a 20% 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 this Registration Statement
or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission
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by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 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 the 24th day of
October, 2002.
METAL MANAGEMENT, INC.
By: /s/ ALBERT A. COZZI
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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, as amended,
this Registration Statement has been signed by the following persons in the
capacity indicated on the 24th day of October, 2002.
SIGNATURE TITLE
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/s/ ALBERT A. COZZI Director, Chairman of the Board and Chief Executive
------------------------------------------ Officer
Albert A. Cozzi (Principal Executive Officer)
/s/ MICHAEL W. TRYON President and Chief Operating Officer
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Michael W. Tryon
/s/ ROBERT C. LARRY Executive Vice President, Finance 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
/s/ DANIEL W. DIENST Director
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Daniel W. Dienst
/s/ JOHN T. DILACQUA Director
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John T. DiLacqua
/s/ KEVIN P. MCGUINNESS Director
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Kevin P. McGuinness
/s/ HAROLD J. ROUSTER Director
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Harold J. Rouster
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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5.1 Opinion of King & Spalding.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of King & Spalding (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
99.1 Metal Management, Inc. 2002 Incentive Stock Plan.
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