<PAGE>
As filed with the Securities and Exchange Commission on January 5, 1996.
Registration No. 33-_______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
IMCO RECYCLING INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2008280
(State or other of jurisdiction (I.R.S. Employer
incorporation or organization) Identification Number)
5215 NORTH O'CONNOR BLVD., SUITE 940
CENTRAL TOWER AT WILLIAMS SQUARE
IRVING, TEXAS 75039
(214) 869-6575
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
---------------------
IMCO RECYCLING INC. 1992 STOCK OPTION PLAN
(AS AMENDED DECEMBER 15, 1994)
(Full Title of Plan)
PAUL V. DUFOUR
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
IMCO RECYCLING INC.
5215 NORTH O'CONNOR BLVD., SUITE 940
CENTRAL TOWER AT WILLIAMS SQUARE
IRVING, TEXAS 75039
(214) 869-6575
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
WITH COPIES TO:
HAYNES AND BOONE, L.L.P.
1000 LOUISIANA, SUITE 4300
HOUSTON, TEXAS 77002
ATTN: MARC H. FOLLADORI
(713) 547-2000
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Proposed
Title of Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered(1)(2) Per Share(2) Price(2) Registration Fee
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $0.10 per share 550,000 shares $23.8125 $13,096,875 $2,619.40
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(a), also registered hereunder is an indeterminate
number of shares of Common Stock issuable as a result of the anti-dilution
provisions of the Plan.
(2) The 550,000 shares registered hereby represent additional shares issuable
pursuant to the Company's 1992 Stock Option Plan. With respect to the
shares registered hereby, the offering price per share, the aggregate
offering price and the registration fee have been calculated in accordance
with paragraphs (c) and (h)(1) of Rule 457 on the basis of the average high
and low sale prices for the Company's Common Stock on January 3, 1996, as
reported on the New York Stock Exchange composite tape ($23.81 per share).
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
IMCO Recycling Inc. (the "Company") hereby incorporates by reference
the Company's Registration Statement on Form S-8 (Registration No. 33-76780)
filed with the Securities and Exchange Commission (the "Commission") on
March 23, 1994 (the "1994 Form S-8"). The Company also incorporates by
reference the description of its Common Stock, $0.10 par value per share,
contained in the Company's Registration Statement on Form 8-A filed with the
Commission on June 27, 1991.
IMCO RECYCLING INC. 1992 STOCK OPTION PLAN
(As Amended December 15, 1994)
By means of the 1994 Form S-8, the Company registered 600,000 shares of
Common Stock pursuant to its 1992 Stock Option Plan (the "1992 Plan").
This Registration Statement registers an additional 550,000 shares of Common
Stock issuable pursuant to the 1992 Plan, as authorized by the Company's
stockholders at the Company's Annual Meeting of Stockholders held on May 12,
1995.
-2-
<PAGE>
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 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 Irving, State of Texas, on December
31, 1995.
IMCO RECYCLING INC.
By: /S/ PAUL V. DUFOUR
----------------------------------------
Paul V. Dufour
Executive Vice President -
Finance and Administration
and Chief Financial Officer
(Principal Financial Officer)
POWER OF ATTORNEY
Each of the undersigned hereby appoints Don V. Ingram, Frank H.
Romanelli and Paul V. Dufour and each of them (with full power to act alone),
as attorney and agents for the undersigned, with full power of substitution,
for and in the name, place and stead of the undersigned, to sign and file
with the Securities and Exchange Commission under the Securities Act of 1933
any and all amendments and exhibits to this Registration Statement and any
and all applications, instruments and other documents to be filed with the
Securities and Exchange Commission pertaining to the registration of the
securities covered hereby, with full power and authority to do and perform
any and all acts and things whatsoever requisite or desirable.
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 December 31, 1995.
SIGNATURE TITLE
--------- -----
/S/ DON V. INGRAM Director, Chairman of the Board of Directors
- ------------------------------
Don V. Ingram
/S/ FRANK H. ROMANELLI Director, President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
Frank H. Romanelli
/S/ PAUL V. DUFOUR Executive Vice President - Finance and
- ------------------------------ Administration and Chief Financial Officer
Paul V. Dufour (Principal Financial Officer)
/S/ ROBERT R. HOLIAN Vice President and Controller (Principal
- ------------------------------ Accounting Officer)
Robert R. Holian
/S/ JACK M. BRUNDRETT Director
- ------------------------------
Jack M. Brundrett
/S/ JOHN J. FLEMING Director
- ------------------------------
John J. Fleming
/S/ RICHARD HANSELMAN Director
- ------------------------------
Richard Hanselman
/S/ RALPH L. CHEEK Director
- ------------------------------
Ralph L. Cheek
/S/ DON NAVARRO Director
- ------------------------------
Don Navarro
/S/ JACK C. PAGE Director
- ------------------------------
Jack C. Page
/S/ THOMAS A. JAMES Director
- ------------------------------
Thomas A. James
-3-
<PAGE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
- ------- -----------
4.1 Specimen certificate for shares of the Company's common stock, par
value $0.10 per share. Exhibit 4.1 to the Company's Registration
Statement on Form S-2 (No. 33-48571) is incorporated herein by
reference.
4.2 The Company's 1992 Stock Option Plan (As Amended December 15, 1994).
5.1 Opinion of Haynes and Boone, L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Haynes and Boone, L.L.P. (included in Exhibit 5.1
opinion).
24.1 Power of Attorney (included on the signature page hereto).
<PAGE>
EXHIBIT 4.2
IMCO RECYCLING INC.
1992 STOCK OPTION PLAN
(As amended December 15, 1994)
PURPOSE
The purpose of the Plan is to attract and retain key employees,
consultants, officers and directors of the Company and to provide such
persons with a proprietary interest in the Company through the granting of
Incentive Stock Options and Nonqualified Stock Options which will:
(a) increase the interest of such employees, consultants, officers
and directors in the Company's welfare;
(b) furnish an incentive to such employees, consultants, officers and
directors to continue their services for the Company; and
(c) provide a means through which the Company may attract able
persons to enter its employ or to serve as consultants, officers and
directors.
ARTICLE I
DEFINITIONS
For the purpose of this Plan, unless the context requires otherwise, the
following terms shall have the meanings indicated:
1.1 "Board" means the board of directors of the Company.
1.2 "Change in Control" means the occurrence of any of the following
events: (i) there shall be consummated (x) any consolidation or merger of
the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's Common Stock would
be converted into cash, securities or other property, other than a merger of
the Company in which the holders of the Company's Common Stock immediately
prior to the merger have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or (y) any sale,
lease, exchange or other transfer (excluding transfer by way of pledge or
hypothecation), in one transaction or a series of related transactions, of
all, or substantially all, of the assets of the Company, (ii) the
stockholders of the Company approve any plan or proposal for the liquidation
or dissolution of the Company, (iii) any "person" (as such term is defined
in Section 3(a)(9) or Section 13(d)(3) under the 1934 Act) or any "group"
(as such term is used in Rule 13d-5 promulgated under the 1934
<PAGE>
Act), other than the Company or any successor of the Company or any
Subsidiary of the Company or any employee benefit plan of the Company or any
Subsidiary (including such plan's trustee), becomes a beneficial owner for
purposes of Rule 13d-3 promulgated under the 1934 Act, directly or
indirectly, of securities of the Company representing 50.1% or more of the
Company's then outstanding securities having the right to vote in the
election of directors, or (iv) during any period of two consecutive years,
individuals who, at the beginning of such period constituted the entire
Board, cease for any reason (other than death) to constitute a majority of
the directors, unless the election, or the nomination for election, by the
Company's stockholders, of each new director was approved by a vote of at
least two-thirds of the directors then still in office who were directors at
the beginning of the period.
1.3 "Code" means the Internal Revenue Code of 1986, as amended.
1.4 "Common Stock" means the common stock which the Company is
currently authorized to issue or may in the future be authorized to issue.
1.5 "Company" means IMCO Recycling Inc., a Delaware corporation.
1.6 "Date of Grant" means the effective date on which an option is
awarded to a Participant as set forth in the stock option agreement.
1.7 "Eligible Participant" shall have the meaning set forth in
Section 6.1 hereof.
1.8 "Fair Market Value" of the Company's shares of Common Stock means
(i) the closing price per share on any stock exchange on which the Common
Stock is traded, or (ii) the mean between the closing or average (as the case
may be) bid and asked prices per share of Common Stock on the
over-the-counter market, whichever is applicable.
1.9 "Incentive Stock Option" means an option to purchase shares of
Common Stock granted to an eligible Participant pursuant to Article V and
which is intended to qualify as an incentive stock option under Section 422
of the Code.
1.10 "1934 Act" means the Securities Exchange Act of 1934, as amended.
1.11 "Nonqualified Stock Option" means an option to purchase shares of
Common Stock granted to a Participant pursuant to Article IV or Article V and
which is not intended to qualify as an incentive stock option under Section
422 of the Code.
1.12 "Participant" means any employee of the Company or any Subsidiary
of the Company or any non-employee director, officer or consultant of the
Company who is, or who is proposed to be, a recipient of a Stock Option.
1.13 "Plan" means the IMCO Recycling Inc. 1992 Stock Option Plan, as
it may be amended from time to time.
<PAGE>
1.14 "Reload Stock Option" means a Nonqualified Stock Option or an
Incentive Stock Option granted pursuant to Section 7.2 hereof.
1.15 "Restricted Stock" shall have the meaning set forth in Section
7.3 hereof.
1.16 "Restriction Period" shall have the meaning set forth in Section
7.3 hereof.
1.17 "Spread" shall have the meaning set forth in Article XIII hereof.
1.18 "Stock Dividend" means a dividend or other distribution declared
on the shares of Common Stock payable in (i) capital stock of the Company or
any Subsidiary of the Company, or (ii) rights, options or warrants to receive
or purchase capital stock of the Company or any Subsidiary of the Company, or
(iii) securities convertible into or exchangeable for capital stock of the
Company or any Subsidiary of the Company, or (iv) any capital stock received
upon the exercise, or with respect to, the foregoing.
1.19 "Stock Options" shall mean any and all Incentive Stock Options,
Nonqualified Stock Options and Reload Stock Options granted pursuant to the
Plan.
1.20 "Subsidiary" means any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of granting of the
Stock Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain,
and "Subsidiaries" means more than one of any such corporations.
ARTICLE II
ADMINISTRATION
Subject to the terms of this Article II, the Plan shall be administered
by the Compensation Committee (the "Committee") of the Board, which shall
consist of at least two members. Any member of the Committee may be removed
at any time, with or without cause, by resolution of the Board. Any vacancy
occurring in the membership of the Committee may be filled by appointment by
the Board. Each member of the Committee, at the time of his appointment to
the Committee and while he is a member thereof, must be a "disinterested
person", as that term is defined in Rule 16b-3 promulgated under the 1934
Act.
The Board shall select one of its members to act as the Chairman of the
Committee, and the Committee shall make such rules and regulations for its
operation as it deems appropriate. A majority of the Committee shall
constitute a quorum, and the act of a majority of the members of the
Committee present at a meeting at which a quorum is present shall be the act
of the Committee. Subject to the terms hereof, the Committee shall designate
from time to time the key employees,
<PAGE>
consultants, or officers of the Company to whom Stock Options will be
granted, interpret the Plan, prescribe, amend, and rescind any rules and
regulations necessary or appropriate for the administration of the Plan, and
make such other determinations and take such other action as it deems
necessary or advisable. In this regard, the Committee shall consider and
give appropriate weight to input from representatives of management of the
Company regarding the contributions or potential contributions to the Company
or a Subsidiary of certain of the employees, officers or consultants, or
potential employees, officers or consultants, of the Company or any
Subsidiary.
The Committee shall have full authority to administer the Plan,
including authority to interpret and construe any provision of the Plan and
the terms of any Stock Options issued under it and to adopt such rules and
regulations for administering the Plan as it may deem necessary. The
Committee may, in its absolute discretion (except with respect to Stock
Options granted to the Company's non-employee directors pursuant to Article
IV hereof) accelerate the date on which any Stock Option granted under the
Plan becomes exercisable. Except as provided below, any interpretation,
determination, or other action made or taken by the Committee shall be final,
binding, and conclusive on all interested parties, including the Company and
all Participants.
ARTICLE III
SHARES SUBJECT TO PLAN
The Committee may not grant Stock Options under the Plan for more than
1,150,000 shares of Common Stock of the Company (as may be adjusted in
accordance with Article XII or XIII hereof). Shares to be distributed and
sold may be made available from either authorized but unissued Common Stock
or Common Stock held by the Company in its treasury. Shares that by reason
of the expiration or unexercised termination of a Stock Option are no longer
subject to purchase may be reoffered under the Plan.
ARTICLE IV
NON-EMPLOYEE DIRECTORS' STOCK OPTIONS
The provisions of this Article IV shall apply only to Nonqualified Stock
Options granted under the Plan to non-employee directors of the Company.
4.1 ELIGIBILITY. Only non-employee directors of the Company shall be
eligible to receive grants of Nonqualified Stock Options under this Article
IV.
4.2 GRANT OF STOCK OPTIONS. On December 15 of each year during the
term of this Plan (or if such date is not a business day, then on the next
succeeding business day thereafter), the Company shall grant to each
non-employee director of the Company a Nonqualified Stock Option to purchase
that number of shares of Common Stock determined by dividing the annual
director's fee paid or accrued to be
<PAGE>
paid to that director with respect to the 12-month period immediately
preceding such Date of Grant, by the Fair Market Value per share of the
Common Stock on the Date of Grant. Each grant of Nonqualified Stock Options
under this Article IV shall be evidenced by a stock option agreement setting
forth the total number of shares subject to the Nonqualified Stock Option,
the option exercise price, the term of the Nonqualified Stock Option and such
other terms and provisions as are consistent with the Plan.
4.3 OPTION PRICE. The option exercise price for a Nonqualified Stock
Option granted under this Article IV shall be equal to the Fair Market Value
per share of Common Stock on the Date of Grant. Notwithstanding anything to
the contrary contained in this Section 4.3, the option exercise price of each
Nonqualified Stock Option granted pursuant to this Article IV shall not be
less than the par value per share of the Common Stock.
4.4 OPTION PERIOD. All Nonqualified Stock Options granted under this
Article IV shall automatically vest and be exercisable in full after the
expiration of six months from the Date of Grant. The period during which a
Nonqualified Stock Option granted under this Article IV may be exercised
shall expire ten years from the Date of Grant, unless sooner terminated
pursuant to Article VIII. No Nonqualified Stock Option granted under this
Article IV may be exercised at any time after its term.
ARTICLE V
STOCK OPTIONS FOR EMPLOYEES, CONSULTANTS AND OFFICERS
The provisions of this Article V shall apply only to Stock Options
granted under the Plan to key employees, consultants and officers of the
Company or any of its Subsidiaries, including directors who are employees of
the Company and/or any of its Subsidiaries and non-employee officers of the
Company and/or any of its Subsidiaries:
5.1 ELIGIBILITY. The Committee shall, from time to time, select the
particular key employees, consultants and officers of the Company and its
Subsidiaries to whom the Stock Options provided under this Article V are to
be granted and/or distributed in recognition of each such Participant's
contribution to the Company's or the Subsidiary's success. In this regard,
the Committee shall consider and give appropriate weight to input from
representatives of management of the Company regarding the contributions or
potential contributions to the Company or a Subsidiary of certain of the
employees, officers or consultants or potential employees, officers or
consultants of the Company or a Subsidiary.
5.2 GRANT OF STOCK OPTIONS. All grants of Stock Options under this
Article V shall be awarded by the Committee. Each grant of Stock Options
shall be evidenced by a stock option agreement setting forth the total number
of shares subject to the Stock Option, the option exercise price, the term of
the Stock Option, and such other
<PAGE>
terms and provisions as are approved by the Committee, but, except to the
extent permitted herein, are not inconsistent with the Plan. In the case of
an Incentive Stock Option, the stock option agreement shall also include
provisions that may be necessary to assure that the option is an incentive
stock option under the Code. The Company shall execute stock option
agreements upon instructions from the Committee.
5.3 OPTION PRICE. The option price for a Nonqualified Stock Option
shall be equal to the Fair Market Value per share of the Common Stock on the
Date of Grant. The option price for an Incentive Stock Option shall be
determined by the Committee and shall be an amount not less than the Fair
Market Value per share of the Common Stock on the Date of Grant; the
Committee shall determine the Fair Market Value of the Common Stock on the
Date of Grant, and shall set forth the determination in its minutes.
Notwithstanding anything to the contrary contained in this Section 5.3, the
exercise price of each Stock Option granted pursuant to the Plan shall not be
less than the par value per share of the Common Stock.
5.4 OPTION PERIOD. The option period will begin and terminate on the
respective dates specified by the Committee, but may not terminate later than
ten years from the Date of Grant. No Stock Option granted under the Plan may
be exercised at any time after its term. The Committee may provide for the
exercise of Stock Options in installments and upon such terms, conditions and
restrictions as it may determine. The Committee shall have the right to
accelerate the time at which any Stock Option granted to an employee,
consultant or officer (including an employee director) shall become
exercisable. In the event of the retirement of an employee of the Company or
a Subsidiary in accordance with the standard retirement policies of the
Company or the Subsidiary, as the case may be, all unmatured installments of
Stock Options outstanding shall automatically be accelerated and exercisable
in full in accordance with the provisions of Article VIII.
ARTICLE VI
LIMITS ON INCENTIVE STOCK OPTIONS
6.1 OPTION PERIOD. Notwithstanding the provisions of Sections 5.4 and
7.2 hereof, if a Participant eligible to receive a grant of an Incentive
Stock Option under Section 422 of the Code (an "Eligible Participant") owns
or is deemed to own (by reason of the attribution rules of Section 424(d) of
the Code) more than 10% of the combined voting power of all classes of stock
of the Company (or any Subsidiary of the Company) and an Incentive Stock
Option is granted to such Eligible Participant, the term of such Incentive
Stock Option (to the extent required by the Code at the time of grant) shall
be no more than five years from the Date of Grant. In addition, the option
price of any such Incentive Stock Option granted to any such Eligible
Participant owning more than 10% of the combined voting power of all classes
of stock of the Company (or any Subsidiary of the Company) shall be at least
110% of the Fair Market Value of the Common Stock on the Date of Grant.
<PAGE>
6.2 LIMITATION ON EXERCISES OF SHARES SUBJECT TO INCENTIVE STOCK
OPTIONS. To the extent required by the Code for incentive stock options, the
exercise of Incentive Stock Options granted under the Plan shall be subject
to the $100,000 calendar year limit as set forth in Section 422(d) of the
Code.
6.3 DISQUALIFYING DISPOSITION. If stock acquired upon exercise of an
Incentive Stock Option is disposed of by an Eligible Participant prior to the
expiration of either two years from the Date of Grant of such option or one
year from the transfer of shares to such Eligible Participant pursuant to the
exercise of such option, or in any other disqualifying disposition within the
meaning of Section 422 of the Code, such Eligible Participant shall notify
the Company in writing of the date and terms of such disposition. A
disqualifying disposition by an Eligible Participant shall not affect the
status of any other option granted under the Plan as an incentive stock
option within the meaning of Section 422 of the Code.
6.4 TERMINATION. Notwithstanding the provisions of Article VIII, an
Eligible Participant's Incentive Stock Options shall terminate no later than
ninety (90) days after termination of such Participant's employment with the
Company and its Subsidiaries; PROVIDED that if such employment terminates by
reason of the death or total and permanent disability (as defined in Section
22(e) of the Code) of the Participant, then such Participant's Incentive
Stock Options shall terminate no later than one hundred eighty (180) days
after such termination by reason of death or disability.
ARTICLE VII
EXERCISE OF STOCK OPTIONS; RELOAD
STOCK OPTIONS; RESTRICTED STOCK
7.1 PAYMENT. Full payment for shares purchased upon exercise of a
Stock Option shall be made in cash or by the Participant's delivery to the
Company of shares of Common Stock which have a Fair Market Value equal to the
option price (or in any combination of cash and shares of Common Stock having
an aggregate Fair Market Value equal to the option price). No shares may be
issued until full payment of the purchase price therefor has been made, and a
Participant will have none of the rights of a stockholder until shares are
issued to him.
7.2 RELOAD STOCK OPTIONS. Subject to the terms of this Section 7.2, in
the event that shares are delivered by a Participant in payment of all or a
portion of the exercise price of a Stock Option as set forth in Section 7.1
and/or shares are delivered to or withheld by the Company in satisfaction of
the Company's tax withholding obligations upon exercise in accordance with
Section 15.7, then a Participant so exercising a Nonqualified Stock Option
shall automatically be granted a Nonqualified Stock Option and a Participant
so exercising an Incentive Stock Option shall automatically be granted an
Incentive Stock Option (in either case, a "Reload Stock Option"), to
purchase that number of shares so delivered to or withheld by the Company, as
the case may be, at an option exercise price equal to the Fair Market
<PAGE>
Value per share of the Common Stock on the date of exercise (subject to the
provisions of Article VI regarding Incentive Stock Options and, in any event
not less than the par value per share of the Common Stock). The option
period for a Reload Stock Option will expire on the expiration date of the
Stock Option it replaces (subject to the provisions in Article VI regarding
Incentive Stock Options and the provisions of Article VIII), after which the
Reload Stock Option cannot be exercised. The Date of Grant of a Reload Stock
Option shall be the date that the Stock Option it replaces is exercised. A
Reload Stock Option shall automatically vest and be exercisable in full after
the expiration of six months from its Date of Grant. It shall be a condition
to the grant of a Reload Stock Option that promptly after its Date of Grant,
a stock option agreement shall be delivered to, and executed and delivered by
the Participant and the Company which sets forth the total number of shares
subject to the Reload Stock Option, the option price, the term of the Reload
Stock Option and such other terms and provisions as are consistent with the
Plan.
7.3 RESTRICTED STOCK. In the event that a Participant exercises a
stock option and receives a Reload Stock Option under Section 7.2, the
following restrictions and conditions will apply to that number of the shares
of Common Stock (the "Restricted Stock") issued to the Participant upon
such exercise, which is equal to one-half of the sum of (i) the number of
shares of Common Stock delivered by the Participant to the Company in payment
of the exercise price, if any, plus (ii) the number of shares of Common Stock
delivered to, or withheld by, the Company in satisfaction of the Company's
tax withholding obligations under Section 15.7, if any:
(a) RESTRICTION PERIOD. Subject to the other provisions of this Plan,
each Participant shall not be permitted to sell, assign, transfer, pledge,
exercise or place any encumbrance on shares of Restricted Stock and any
Stock Dividends paid on or with respect to such Restricted Stock until the
earliest to occur of any of the following events (such period of
restriction being referred to herein as the "Restriction Period"):
(i) the expiration of five years from the date of issuance of
the Restricted Stock in the name of the Participant;
(ii) in the case of an employee of the Company or a Subsidiary,
the retirement of such Participant from the Company or the
Subsidiary in accordance with the standard retirement
policies of the Company or the Subsidiary, as the case may
be;
(iii) in the case of a non-employee director, officer or
consultant of the Company, the cessation of service to the
Company of such Participant in such capacity;
(iv) the death of such Participant;
<PAGE>
(v) the total and permanent disability of such Participant (as
defined in Article VIII hereof); or
(vi) a Change in Control of the Company.
(b) RIGHTS WITH RESPECT TO RESTRICTED STOCK. Except as otherwise provided
in the Plan, the Participant shall have, with respect to his or her
Restricted Stock (and any Stock Dividends paid on such Restricted Stock),
all of the rights of a stockholder of the Company, including the right to
vote the shares and the right to receive any dividends thereon. Each
Participant who is to receive Restricted Stock shall be issued a stock
certificate in respect of such shares of Restricted Stock, registered in
the name of the Participant, which shall bear an appropriate legend
referring to the restrictions applicable to such Restricted Stock, to read
substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions of the
IMCO Recycling Inc. 1992 Stock Option Plan. A copy of such Plan
is on file in the offices of IMCO Recycling Inc., 5215 North
O'Connor Blvd., Suite 940, Irving, Texas 75039."
ARTICLE VIII
TERMINATION OF EMPLOYMENT OR SERVICE
In the event a Participant who is an employee of the Company (including
any employee who is an officer or a director) or any Subsidiary shall cease
to be employed by the Company or a Subsidiary, or a Participant who is a
non-employee director or a non-employee officer or consultant of the Company
or any Subsidiary shall cease to serve in his capacity as a director, officer
or consultant, as the case may be, of the Company or any Subsidiary, for any
reason other than death, disability or retirement, such Participant's Stock
Options may be exercised by the Participant for a period of one hundred
eighty (180) days after the Participant's termination of employment or
service, as the case may be, or until expiration of the applicable Option
Period (if sooner) to the extent of the shares with respect to which such
Stock Options could have been exercised by the Participant on the date of
termination, and thereafter to the extent not so exercised, such Stock
Options shall terminate. In addition, except as provided in Section 6.4 with
respect to Incentive Stock Options, a Participant's Stock Options may be
exercised as follows in the event of such Participant's death, disability or
retirement:
(a) DEATH. In the event of death while employed or while serving as a
(i) non-employee director, (ii) non-employee officer or (iii) consultant,
as the case may be, the Stock Option may be exercised, for a period of one
hundred eighty (180) days after the Participant's death or until expiration
of the Stock Option period (if sooner), to the extent of the shares with
respect to which the Stock Option could have been exercised by the
Participant on the date of the
<PAGE>
Participant's death, by the Participant's estate or personal
representative, or by the person who acquired the right to exercise
the Stock Option by bequest or inheritance or by reason of the
Participant's death; and
(b) DISABILITY OR RETIREMENT. In the event of termination of employment
of an employee (or termination of service in the case of a (i)
non-employee director, (ii) non-employee officer or (iii) consultant)
as the result of a total and permanent disability (as defined in
Section 22(e) of the Code) or as the result of retirement in accordance
with the standard retirement policies of the Company or the Subsidiary,
as the case may be, the Stock Option may be exercised by the Participant
or his guardian for a period of one hundred eighty (180) days after such
termination or until expiration of the Stock Option period (if sooner),
to the extent of the shares with respect to which the Stock Option could
have been exercised by the Participant on the date of such termination,
after taking into account any acceleration of unmatured installments of
Stock Options pursuant to Section 5.4.
Notwithstanding the foregoing, individual grants of Stock Options to
Participants under the Plan may provide, pursuant to the terms of the
particular stock option agreement, more restrictive terms than those
contained in this Plan concerning any exercise of such Stock Options with
respect to any termination of employment or service by such Participants.
ARTICLE IX
AMENDMENT OR DISCONTINUANCE
Subject to the limitations set forth in this Article IX, the Board may
at any time, without the consent of the Participants, alter, amend, revise,
suspend, or discontinue the Plan, provided that such action shall not,
without obtaining the approval of the stockholders of the Company, (i)
materially increase the benefits accruing to Participants under the Plan,
(ii) materially increase the number of securities which may be issued under
the Plan, or (iii) materially modify the requirements as to eligibility for
participation in the Plan. Subject to the foregoing limitations, the Board
may amend the Plan or modify the agreements evidencing same in order to
comply with Section 16(b) of the 1934 Act and the rules and regulations
promulgated thereunder, as amended from time to time. The Board may not
amend the provisions of Article IV more than once during any six-month period
unless such amendment is deemed necessary in order to comply with the
provisions of the Code or the treasury regulations promulgated thereunder.
The Committee may also substitute new Stock Options for Stock Options
previously granted to employees of the Company or any of its Subsidiaries,
including previously granted Stock Options having higher exercise prices.
<PAGE>
ARTICLE X
EFFECT OF THE PLAN
Neither the adoption of this Plan nor any action of the Board or the
Committee shall be deemed to give any director, officer, consultant or
employee any right to be granted a Stock Option to purchase or receive Common
Stock of the Company or any other rights except as may be evidenced by a
stock option agreement, or any amendment thereto, duly authorized by and
executed on behalf of the Company and then only to the extent of and upon the
terms and conditions expressly set forth therein.
ARTICLE XI
TERM
The Plan shall be submitted to the Company's stockholders for their
approval; PROVIDED, HOWEVER, that Stock Options may be granted under the Plan
prior to the time of stockholder approval. Unless sooner terminated by
action of the Board, the Plan will terminate on the 15th day of December,
2002. Stock Options under the Plan may not be granted after that date, but
Stock Options granted before that date will continue to be effective in
accordance with their terms and conditions.
ARTICLE XII
CAPITAL ADJUSTMENTS
If at any time while the Plan is in effect or unexercised Stock Options
are outstanding there shall be any increase or decrease in the number of
issued and outstanding shares of Common Stock through the declaration of a
Stock Dividend or through any recapitalization resulting in a stock split-up,
combination, or exchange of shares of Common Stock, then and in such event:
(i) An appropriate adjustment shall be made in the maximum
number of shares of Common Stock then subject to being awarded under
grants pursuant to the Plan, to the end that the same proportion of
the Company's issued and outstanding shares of Common Stock shall
continue to be subject to being so awarded; and
(ii) Appropriate adjustments shall be made in the number of
shares of Common Stock and the exercise price per share thereof then
subject to purchase pursuant to each such Stock Option previously
granted and unexercised, to the end that the same proportion of the
Company's issued and outstanding shares of Common Stock in each
instance shall remain subject to purchase at the same aggregate
exercise price.
Any fractional shares resulting from any adjustment made pursuant to this
Article XII shall be eliminated for the purposes of such adjustment. Except as
<PAGE>
otherwise expressly provided herein, the issuance by the Company of shares of
its capital stock of any class, or securities convertible into shares of
capital stock of any class, either in connection with direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon conversion of
shares or obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of or exercise price of shares of Common
Stock then subject to outstanding Stock Options granted under the Plan.
ARTICLE XIII
RECAPITALIZATION, MERGER AND CONSOLIDATION
(a) The existence of this Plan and Stock Options granted hereunder
shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stocks ranking prior to or otherwise affecting the Common Stock or the
rights thereof (or any rights, options or warrants to purchase same), or
the dissolution or liquidation of the Company, or any sale or transfer of
all or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
(b) Subject to any required action by the stockholders, if the
Company shall be the surviving or resulting corporation in any merger or
consolidation, any outstanding Stock Option granted hereunder shall pertain
to and apply to the securities or rights (including cash, property or
assets) to which a holder of the number of shares of Common Stock subject
to the Stock Option would have been entitled.
(c) In the event of any reorganization, merger or consolidation
pursuant to which the Company is not the surviving or resulting
corporation, or of any proposed sale of substantially all of the assets of
the Company, there may be substituted for each share of Common Stock
subject to the unexercised portions of such outstanding Stock Option that
number of shares of each class of stock or other securities or that amount
of cash, property or assets of the surviving or consolidated company which
were distributed or distributable to the stockholders of the Company in
respect of each share of Common Stock held by them, such outstanding Stock
Options to be thereafter exercisable for such stock, securities, cash or
property in accordance with their terms. Notwithstanding the foregoing,
however, the Board, in its sole discretion, may cancel all such Stock
Options as of the effective date of any such reorganization, merger or
consolidation, or of any such proposed sale of substantially all of the
assets of the Company, or of any dissolution or liquidation of the Company,
and either:
<PAGE>
(i) give notice to each holder thereof or his personal
representative of its intention to cancel such Stock Options and
permit the purchase during the thirty (30) day period next preceding
such effective date of any or all of the shares subject to such
outstanding Stock Options, including shares as to which such Stock
Options would not otherwise be exercisable; or
(ii) pay the holder thereof an amount equal to a reasonable
estimate of an amount (hereinafter the "Spread") equal to the
difference between the net amount per share payable in such
transaction or as a result of such transaction, less the exercise
price of such Stock Options. In estimating the Spread, appropriate
adjustments to give effect to the existence of the Stock Options shall
be made, such as deeming the Stock Options to have been exercised,
with the Company receiving the exercise price payable thereunder, and
treating the shares receivable upon exercise of the Options as being
outstanding in determining the net amount per share. In cases where
the proposed transaction consists of the acquisition of assets of the
Company, the net amount per share shall be calculated on the basis of
the net amount receivable with respect to shares of Common Stock upon
a distribution and liquidation by the Company after giving effect to
expenses and charges, including but not limited to taxes, payable by
the Company before such liquidation could be completed.
(d) In the event of a Change in Control of the Company, then,
notwithstanding any other provision in the Plan to the contrary, all
unmatured installments of Stock Options outstanding shall thereupon
automatically be accelerated and exercisable in full.
(e) Notwithstanding sub-Section (c) above of this Article XIII, in
case the Company shall, at any time while any Stock Option under this Plan
shall be in force and remain unexpired, (i) sell all or substantially all
of its property or (ii) dissolve, liquidate, or wind up its affairs, then,
provided that the Board so determines in its sole discretion, each
Participant may thereafter receive upon exercise hereof (in lieu of each
share of Common Stock of the Company which such Participant would have been
entitled to receive) the same kind and amount of any securities or assets
as may be issuable, distributable or payable upon any such sale,
dissolution, liquidation, or winding up with respect to each share of
Common Stock of the Company. In the event that the Company shall, at any
time prior to the expiration of any Stock Option, make any partial
distribution of its assets in the nature of a partial liquidation, whether
payable in cash or in kind (but excluding the distribution of a cash
dividend payable out of retained earnings or earned surplus and designated
as such), then in such event the exercise prices then in effect with
respect to each option shall be reduced, as of the payment date of such
distribution, in proportion to the percentage reduction in the tangible
book value of the shares of the Company's
<PAGE>
Common Stock (determined in accordance with generally accepted accounting
principles) resulting by reason of such distribution; provided, that in no
event shall any adjustment of exercise prices in accordance with the terms
of the Plan result in any exercise prices being reduced below the par
value per share of the Common Stock.
(f) Upon the occurrence of each event requiring an adjustment of the
exercise price and/or the number of shares purchasable pursuant to Stock
Options granted pursuant to the terms of this Plan, the Company shall mail
forthwith to each Participant a copy of its computation of such adjustment
which shall be conclusive and shall be binding upon each such Participant,
except as to any Participant who contests such computation by written
notice to the Company within thirty (30) days after receipt thereof by such
Participant.
ARTICLE XIV
OPTIONS IN SUBSTITUTION FOR STOCK OPTIONS
GRANTED BY OTHER CORPORATIONS
Stock Options may be granted under the Plan from time to time in
substitution for such stock options held by employees of a corporation who
become or are about to become employees of the Company or a Subsidiary as the
result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by either of the foregoing of stock
of the employing corporation as the result of which it becomes a Subsidiary.
The terms and conditions of the substitute options so granted may vary from the
terms and conditions set forth in this Plan to such extent as the Committee at
the time of grant may deem appropriate to conform, in whole or in part, to the
provisions of the options in substitution for which they are granted.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 EXERCISE OF STOCK OPTIONS. Stock Options granted under the Plan may
be exercised during the option period, at such times and in such amounts, in
accordance with the terms and conditions and subject to such restrictions as are
set forth herein and in the applicable stock option agreements. Notwithstanding
anything to the contrary contained herein, Stock Options may not be exercised,
nor may shares be issued pursuant to a Stock Option if any necessary listing of
the shares on a stock exchange or any registration under state or federal
securities laws required under the circumstances has not been accomplished.
15.2 NON-ASSIGNABILITY. A Stock Option granted to a Participant may not be
transferred or assigned, other than (i) by will or the laws of descent and
distribution or (ii) pursuant to the terms of a qualified domestic relations
order (as defined in Section 401(a)(13) of the Code or Section 206(d)(3) of the
Employee Retirement Income Security Act of 1974, as amended), provided, that in
the case of an Incentive
<PAGE>
Stock Option, such transfer or assignment may occur only to the extent it
will not result in disqualifying such option as an incentive stock option
under Section 422 of the Code, or any successor provision. Subject to the
foregoing, during a Participant's lifetime, Stock Options granted to a
Participant may be exercised only by the Participant or, provided the
particular stock option agreement so provides, by the Participant's guardian
or legal representative.
15.3 INVESTMENT INTENT. The Company may require that there be presented to
and filed with it by any Participant(s) under the Plan, such evidence as it may
deem necessary to establish that the Stock Options granted or the shares of
Common Stock to be purchased or transferred are being acquired for investment
and not with a view to their distribution.
15.4 ALLOTMENT OF SHARES. Except as otherwise set forth in Article IV, the
Committee shall determine the number of shares of Common Stock to be offered
from time to time by grant of Stock Options to Participants under the Plan. The
grant of a Stock Option to a Participant shall not, by itself, be deemed either
to entitle the Participant to, or to disqualify the Participant from,
participation in any other grant of Stock Options under the Plan.
15.5 NO RIGHT TO CONTINUE EMPLOYMENT. Nothing in the Plan or in any Stock
Option confers upon any employee the right to continue in the employ of the
Company or interferes with or restricts in any way the right of the Company to
discharge any employee at any time (subject to any contract rights of such
employee).
15.6 STOCKHOLDERS' RIGHTS. The holder of a Stock Option shall have none of
the rights or privileges of a stockholder except with respect to shares which
have been actually issued.
15.7 TAX REQUIREMENTS. Any employee who exercises any Stock Option shall
be required to pay the Company the amount of all taxes which the Company is
required to withhold as a result of the exercise of the Stock Option. With
respect to an Incentive Stock Option, in the event of a subsequent disqualifying
disposition of Common Stock within the meaning of Section 422 of the Code, such
payment of taxes may be made in cash, by check or through the delivery of shares
of Common Stock which the employee then owns, which shares have an aggregate
Fair Market Value equal to the required withholding payment, or any combination
thereof. With respect to the exercise of a Nonqualified Stock Option by a
Participant who is an officer, director or 10% stockholder of the Company (as
determined by reference to Section 16(b) of the 1934 Act and the rules
promulgated thereunder), any obligation of such Participant to pay such taxes
shall only be satisfied by the Company's withholding of that number of whole
shares of Common Stock otherwise issuable upon such exercise which have an
aggregate Fair Market Value which equals or exceeds (if necessary to avoid the
issuance of fractional shares) the required tax withholding payment. With
respect to the exercise of a Nonqualified Stock Option by any Participant who is
not such an officer, director or 10% stockholder of the Company,
<PAGE>
such Participant's obligation to pay such taxes may be satisfied by the
following, or any combination thereof: (i) the delivery of cash to the
Company in an amount necessary to satisfy the required tax withholding
obligation of the Company and/or (ii) the actual delivery by the exercising
Participant to the Company of shares of Common Stock which the Participant
owns and/or the Company's withholding of a number of shares to be delivered
upon the exercise of the Stock Option), which shares so delivered or withheld
have an aggregate Fair Market Value which equals or exceeds (if necessary to
avoid the issuance of fractional shares) the required tax withholding
payment. Any such withholding payments with respect to the exercise of a
Nonqualified Stock Option made by a Participant in cash or by actual delivery
of shares of Common Stock shall be required to be made within thirty (30)
days after the delivery to the Participant of any certificate representing
the shares of Common Stock acquired upon exercise of the Stock Option.
15.8 INDEMNIFICATION OF BOARD AND COMMITTEE. No member of the Board or the
Committee, nor any officer or employee of the Company acting on behalf of the
Board or the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to the
Plan, and all members of the Board or the Committee and each and any officer or
employee of the Company acting on their behalf shall, to the extent permitted by
law, be fully indemnified and protected by the Company in respect of any such
action, determination or interpretation.
ARTICLE XVI
EFFECTIVE DATE
The effective date of the Plan shall be December 15, 1992, that is, the
date on which it was first approved and adopted by the Board. Notwithstanding
the amendment of this Plan effective as of December 15, 1994, neither the terms
of the Stock Options outstanding as of such date nor the Agreements entered into
by and between the Company and such relevant Participant in respect of such
Stock Options, shall be deemed to be amended in any way.
* * * * * * * * *
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
as of the 15th day of December, 1994 by its Chief Executive Officer pursuant to
prior action taken by the Board.
IMCO RECYCLING INC.
By: /S/ FRANK ROMANELLI
-----------------------------------
Chief Executive Officer
Attest:
/S/ PAUL V. DUFOUR
- -----------------------------
Secretary
<PAGE>
EXHIBIT 5.1
HAYNES AND BOONE, L.L.P.
1000 Louisiana Street, Suite 4300
Houston, Texas 77002
(713) 547-2000
January 4, 1996
IMCO Recycling Inc.
5215 North O'Connor Blvd.
Suite 940
Central Tower at Williams Square
Irving, Texas 75039
Gentlemen:
We have acted as counsel to IMCO Recycling Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to the registration of 550,000 shares of Common Stock, par value $0.10 per share
(the "Common Stock"), of the Company that may be issued pursuant to the IMCO
Recycling Inc. 1992 Stock Option Plan (the "Plan").
In connection therewith, we have examined (i) the Certificate of
Incorporation and the Bylaws of the Company, each as amended; (ii) minutes and
records of the corporate proceedings of the Company with respect to the adoption
of the Plan and the granting of stock options thereunder; (iii) certificates of
certain officers and directors of the Company; (iv) the Plan and the forms of
stock option agreements pertaining thereto; and (v) such other documents as we
have deemed necessary for the expression of the opinions contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. Furthermore, we have assumed that all stock
option exercise prices will equal or exceed the par value per share of the
Common Stock. As to questions of fact material to this opinion, where such
facts have not been independently established, and as to the content and form of
the Certificate of Incorporation (as amended), Bylaws (as amended), minutes,
records, resolutions and other documents or writings of the Company, we have
relied, to the extent we deem reasonably appropriate, upon representations or
certificates of officers or directors of the Company and upon documents, records
and instruments furnished to us by the Company, without independent check or
verification of their accuracy.
Based upon the foregoing, and having due regard for such legal
considerations as we deem relevant, we are of the opinion that the 550,000
shares of Common Stock covered by the Registration Statement which may be issued
from time to time pursuant to the exercise of options duly granted or which may
be duly granted in accordance with the terms of the Plan have been duly
authorized for issuance by the Company, and, when so issued in accordance with
the terms and conditions of the Plan and the related option agreements upon the
valid exercise of options granted pursuant to the Plan, will be validly issued,
fully paid and nonassessable.
<PAGE>
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
Haynes and Boone, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the IMCO Recycling Inc. 1992 Stock Option Plan (as
amended December 15, 1994) of our report dated February 9, 1995, with respect
to the consolidated financial statements of IMCO Recycling Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1994, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
January 4, 1996
