<PAGE>
As filed with the Securities and Exchange Commission on June 30, 1999.
Registration No. _________
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 jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5215 North O'Connor Blvd., Suite 940
Central Tower at Williams Square
Irving, Texas 75039
(972) 401-7200
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
IMCO RECYCLING INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
Paul V. Dufour
Executive Vice President, Chief Financial Officer and Secretary
IMCO Recycling Inc.
5215 North O'Connor Blvd., Suite 940
Central Tower at Williams Square
Irving, Texas 75039
(972) 401-7200
(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 Proposed
Maximum Maximum Amount of
Title of Amount to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered(1)(2) Per Share(2) Price(2) Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par $0.10 per share 800,000 $ 15.5625 $ 12,450,000 $ 3,462
===========================================================================================================
</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 IMCO Recycling Inc. Employee Stock Purchase Plan (the
"Plan"). In addition, pursuant to Rule 416(c), under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) The 800,000 shares registered hereby represent shares issuable pursuant to
the 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 June 24, 1999, as reported on the New York Stock Exchange
composite tape ($15.5625 per share).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The contents of the following documents filed by IMCO Recycling Inc. a
Delaware corporation (the "Company"), and the Plan with the Securities and
Exchange Commission (the "Commission") are incorporated into this registration
statement ("Registration Statement") by reference:
(a) The Company's Annual Report, dated March 25, 1999, as filed with the
Commission on Form 10-K, File No. 001-07170, for the fiscal year ended December
31, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 1998; and
(c) The description of the Company's common stock, par value $.10 per
share (the "Common Stock"), set forth under the caption "Description of Capital
Stock -- Common Stock" in the Company's registration statement on Form S-2,
dated June 11, 1992, Registration No. 33-48571.
All documents filed by the Company and the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the filing date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all 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 such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a corporation
to 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, administrative or investigative, 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, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees, actually
and reasonably incurred in connection with the defense or settlement of such
action, and the corporation may not indemnify for amounts paid in satisfaction
of a judgment or in settlement of the claim. In any such action, no
indemnification may be paid in respect of any claim, issue or matter as to which
such person shall have been adjudged liable to the corporation except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
<PAGE>
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith and in a manner be reasonably believed
to be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. The statute contains additional limitations
applicable to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote of
the disinterested directors, even though less than a quorum, (2) by a committee
of such directors designated by majority vote of such directors, even though
less than a quorum, (3) if there are no disinterested directors or if the
disinterested directors so direct, by independent legal counsel in a written
opinion, or (4) by the stockholders.
The Company's Bylaws require the Company to indemnify its directors,
officers, employees, and agents to the fullest extent permitted under Delaware
law. The company's Certificate of Incorporation also requires the Company to
indemnify its directors and officers to the fullest extent permitted under
Delaware law. The Company's Certificate of Incorporation provides that a
director of the corporation shall not be held personally liable to the
corporation or its shareholders for monetary damages for breach of a director's
fiduciary duty of care, except that a director shall continue to be held
personally liable for (i) breach of the duty of loyalty, (ii) failure to act in
good faith, (iii) engaging in intentional misconduct or knowingly violating a
law, (iv) paying a dividend or approving a stock repurchase which was illegal
under Delaware law, or (v) obtaining an improper personal benefit.
The Company has purchased insurance on behalf of its directors and officers
against certain liabilities that may be asserted against, or incurred by, such
persons in their capacities as directors or officers of the registrant, or that
may arise out of their status as directors or officers of the registrant,
including liabilities under the federal and state securities laws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description
- ------- -----------
4.1 Specimen certificate for shares of the Company's common stock, par
value $.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 Certificate of Incorporation of IMCO Recycling Inc., as amended May
13, 1998, filed as Exhibit 3.1 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1998, and
incorporated herein by reference.
4.3 Bylaws of IMCO Recycling Inc., as amended, effective as of February
25, 1997, filed as Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, and incorporated
herein by reference.
4.4 The Company's Employee Stock Purchase Plan.
5.1 Opinion of Haynes and Boone, L.L.P.
<PAGE>
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).
Item 9. Undertakings.
A. Undertaking to Update
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;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
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.
B. Undertaking With Respect to Documents Incorporated by Reference
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 and each filing
of the Plan's annual report pursuant to 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 herein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>
C. Undertaking With Respect to Indemnification
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 foregoing
provisions, 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.
<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 June 29, 1999.
IMCO RECYCLING INC.
By: /S/ PAUL V. DUFOUR
---------------------------------------
Paul V. Dufour
Executive Vice President - Finance and
Administration,
Chief Financial Officer and Secretary
(Principal Financial Officer)
POWER OF ATTORNEY
Each of the undersigned hereby appoints Don V. Ingram 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 June 29, 1999.
Signature Title
--------- -----
/S/ DON V. INGRAM Director, Chairman of the Board of Directors and
- ------------------------- Chief Executive Officer
Don V. Ingram (Principal Executive Officer)
/S/ PAUL V. DUFOUR Executive Vice President-Finance and
- ------------------------- Administration, Chief Financial Officer and Secretary
Paul V. Dufour (Principal Financial Officer)
/S/ ROBERT R. HOLIAN Vice President and Controller
- ------------------------- (Principal Accounting Officer)
Robert R. Holian
/S/ JEB HENSARLING Director
- -------------------------
Jeb Hensarling
Director
- -------------------------
John J. Fleming
/S/ STEVE BARTLETT Director
- -------------------------
Steve Bartlett
/S/ DON NAVARRO Director
- -------------------------
Don Navarro
/S/ WILLIAM WARSHAUER Director
- -------------------------
William Warshauer
Director
- ------------------------
Hugh G. Robinson
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the IMCO
Recycling Inc. Employee Stock Purchase Plan Committee, the administrator of the
Plan, 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 June 29, 1999.
IMCO RECYCLING INC. EMPLOYEE STOCK PURCHASE PLAN
By: IMCO Recycling Inc. Employee Stock Purchase
Plan Committee
/s/ JAMES B. WALBURG
------------------------------
James B. Walburg
Member of Plan Committee
/s/ ROBERT R. HOLIAN
------------------------------
Robert R. Holian
Member of Plan Committee
/s/ JAMES A. MADDEN
------------------------------
James A. Madden
Member of Plan Committee
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
------- -----------
4.1 Specimen certificate for shares of the Company's common stock,
par value $.10 per share. Exhibit 4.1 to the Company's
Registration Statement on Form S-2 ("No. 33-48571"), is
incorporated herein by reference.
4.2 Certificate of Incorporation of IMCO Recycling Inc., as
amended May 13, 1998, filed as Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1998, and incorporated herein by reference.
4.3 Bylaws of IMCO Recycling Inc., as amended, effective as of
February 25, 1997, filed as Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1997, and incorporated herein by reference.
4.4 The Company's Employee Stock Purchase Plan.
5.1 Opinion of Haynes and Boone, L.L.P.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Haynes and Boone, L.L.P. (included in Exhibit 5.1
opinion).
24.1 Power of Attorney (included on the signature page hereto).
<PAGE>
EXHIBIT 4.4
IMCO RECYCLING INC.
EMPLOYEE STOCK PURCHASE PLAN
This Plan is intended to advance the long-range interests of IMCO Recycling
Inc., a Delaware corporation (the "Company"), by encouraging the acquisition and
ownership of capital stock of the Company ("Common Stock"), upon the terms
herein set forth, by employees of the Company and certain of its subsidiaries,
in order that their proprietary interest in the Company's long-term performance
and success, and their continuance as employees of the Company, may be enhanced.
The Plan is also intended to provide employees with an opportunity to acquire a
proprietary interest in the Company through the purchase of shares of the Common
Stock of the Company. This Plan shall be known as the "IMCO Recycling Inc.
Employee Stock Purchase Plan." The Plan is intended to qualify as an "employee
stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as
amended (the "Code"). The provisions of the Plan shall be construed in a manner
consistent with requirements of Section 423 of the Code.
1. Shares Offered. The total number of shares of Common Stock ($.10 par
value) available for purchase by Participants under all Offerings (defined in
Section 3 below) is 800,000 shares, which are either authorized but unissued
Common Stock or Common Stock held by the Company in its treasury. If any
Offering shall expire without all shares available under such Offering having
been purchased, such unpurchased shares shall be added to the shares otherwise
available for future Offerings.
2. Administration. The Plan shall be administered by a committee (the "Plan
Committee") appointed by the compensation committee of the Board of Directors
(the "Compensation Committee"), which Plan Committee shall consist of not less
than three members. Subject to the express provisions of the Plan, the Plan
Committee shall have authority, in its discretion, to interpret and construe any
and all provisions of the Plan, to adopt rules and regulations for administering
the Plan, and to make all other determinations necessary or advisable for
administering the Plan. The Plan Committee's determination on the foregoing
matters shall be conclusive. The Plan Committee shall have the power to appoint
and remove an independent third party (which may, but need not, be a bank or
trust company) to act as administrator of the Plan and custodian of all stock
certificates issued under the Plan, and to provide such other services as the
Plan Committee may determine (the "Administrator"), and the Plan Committee is
authorized to enter into an agreement with the Administrator concerning its
duties under the Plan.
The Compensation Committee may from time to time appoint members of the Plan
Committee in substitution for or in addition to members previously appointed,
and may fill vacancies, however caused, in the Plan Committee. The Plan
Committee may select one of its members as its Chairman and shall hold its
meetings at such times and places as it shall deem advisable, and may hold
telephonic meetings. A majority of its members shall constitute a quorum. All
determinations of the Plan Committee shall be made by a majority of its
members. The Plan Committee may correct any defect or omission, or reconcile
any inconsistency in the Plan, in the manner and to the extent it shall deem
desirable. Any decision or determination reduced to writing and signed by a
majority of the members of the Plan Committee shall be as fully effective as if
it had been made by a majority vote at a meeting duly called and held. The
<PAGE>
Plan Committee may appoint a secretary and shall make such rules and regulations
for the conduct of its business as it shall deem advisable.
3. Offerings. The Plan Committee shall make an offering to Eligible
Employees (defined in Section 4 below) to purchase Common Stock under the Plan
(each an "Offering") during the six-month periods from January 1 through June 30
and from July 1 through December 31, until the Plan terminates; each such six-
month offering period during which any such Offering is open is referred to
herein as an "Offering Period." The January 1 or July 1 which is the first day
of an Offering Period is the "Offering Date" for such Offering Period. For each
Offering Period, payroll deductions of Participants for all payroll periods
which end during the Offering Period (including a payroll period which ends on
the last day of an Offering Period) shall be considered Payroll Deductions
during such Offering Period and shall be used to purchase Common Stock at the
end of the Offering Period in accordance with Section 7 below. Unless otherwise
specified by the Plan Committee, the number of shares of Common Stock that may
be purchased under an Offering shall be the balance of the 800,000 shares
authorized in Section 1 above which have not been previously purchased under the
terms of this Plan.
4. Eligibility. The Compensation Committee shall designate the subsidiaries
of the Company whose employees are eligible to participate in the Plan
("Participating Subsidiaries").
An "Eligible Employee" is a person who (i) is actively employed by the
Company or one of the Participating Subsidiaries, (ii) is actively employed on
the first day of the calendar month prior to an Offering Period, and (iii) is
not excluded pursuant to the following sentence. The following persons shall not
be Eligible Employees: (1) employees whose customary employment with the
Company and all Participating Subsidiaries is twenty (20) hours or less per
week, (2) employees who have not been employed by the Company or a Participating
Subsidiary for at least six (6) consecutive months, and (3) an employee who owns
capital stock of the Company (including all capital stock which may be purchased
under outstanding Offerings under the Plan or outstanding options under any
stock plan of the Company) possessing 5% or more of the total combined voting
power or value of all classes of capital stock of the Company or of its
subsidiary corporations (for the foregoing purposes, the rules of Section 424(d)
of the Code shall apply in determining stock ownership), as provided in Code
Section 423(b)(3). All Eligible Employees may participate in the Plan. A
person shall be considered actively employed when the person is presently
performing his/her regular duties with the Company or a Participating
Subsidiary. A person's period of employment with a company acquired by the
Company or by one of its subsidiaries shall be included in determining an
employee's length of employment for the purpose of this paragraph, provided that
such acquired company is a Participating Subsidiary on the Offering Date. A
person who is a director but not an employee shall not be eligible under the
Plan.
5. Offering Rights. With respect to each Offering, each Eligible Employee
may elect to participate by having a portion of his Compensation (defined in
Section 6 below) withheld and applied to the purchase of shares of Common Stock
at the end of the Offering Period. The amount withheld from each paycheck
issued to the Eligible Employee during the Offering Period
<PAGE>
is the Participant's "Payroll Deduction" (in accordance with Section 6 below),
and the Plan Committee shall apply such Payroll Deductions during an Offering
Period to the purchase of the Company's Common Stock at the end of the Offering
Period in accordance with Section 7 below. In no event may the number of shares
of Common Stock which may be purchased by all Participants for an Offering
exceed the number of shares available during the Offering Period (as determined
in accordance with Section 3 above).
6. Participation; Payroll Deductions. An Eligible Employee who completes
and delivers an authorization for Payroll Deduction on the form provided by the
Plan Committee ("Payroll Deduction Authorization Form") shall become a
participant in the Plan ("Participant"). A Participant may deliver a Payroll
Deduction Authorization Form to the Chief Financial Officer of the Company prior
to the Offering Date of an Offering Period, and in accordance with the rules
developed by the Plan Committee. On his Payroll Deduction Authorization Form,
the Participant shall elect to have deductions made on each payday which may be
any whole percentage from 1% up to and including 15% of the Participant's
Compensation in effect at the beginning of the Offering Period. "Compensation"
shall mean W-2 compensation, including overtime but excluding commissions,
bonuses and other special payments. A Participant who elects to participate for
an Offering Period through Payroll Deduction shall be deemed to have elected to
participate in the Plan on the same basis for each successive Offering Period
until such Participant changes his Payroll Deduction in accordance with Section
8 below or withdraws (or is deemed to withdraw) from an Offering pursuant to
Section 12 below. A Participant shall not be required to file additional
Payroll Deduction Authorization Forms for successive Offering Periods in order
to continue participation in the Plan.
7. Participants' Plan Accounts. The Plan Committee will maintain, or cause
to have maintained, a Plan Account in the name of each Participant. On each
payday, a Participant's Payroll Deduction shall be withheld and credited to such
Participant's Plan Account. As of the last day of the Offering Period or such
other date as designated by the Plan Committee if required for proper
administration of the Plan ("Purchase Date"), the amount then in such
Participant's Plan Account shall be applied to the purchase of shares in
accordance with Section 10 below; provided, however, that the first Purchase
Date after the adoption of the Plan may be delayed pursuant to Section 27 below.
The purchase of shares shall be made solely from amounts credited to the
Participants' Plan Accounts.
8. Payroll Deduction Changes. Except in the case of a withdrawal under
Section 12 below, a Participant may not change his Payroll Deduction during an
Offering Period. A Participant may, however, decrease or increase his Payroll
Deduction for a subsequent Offering Period prior to the commencement of the next
Offering Period, by filing a new Payroll Deduction Authorization Form with the
Chief Financial Officer of the Company during the time specified by the Plan
Committee.
9. No Interest. The Plan Committee shall not credit a Participant's Plan
---
Account with interest on any Payroll Deduction, except as provided in Section 27
below.
<PAGE>
10. Purchase Price and Purchase of Shares. Subject to Section 28 below, the
purchase price for a share of Common Stock under any Offering will be the lesser
of:
(a) 85% of the closing sale price for shares of Common Stock as reported
by the composite transaction reporting system for securities listed on the
New York Stock Exchange (or such other principal national securities exchange
or the inter-dealer quotation system on which the stock is then traded or
quoted) on the Offering Date for such Offering or on the most recently
preceding date on which there was such a sale (the "Initial Offering Price");
or
(b) 85% of the closing sale price for shares of Common Stock as reported
by the composite transaction reporting system for securities listed on the
New York Stock Exchange (or such other principal national securities exchange
or the inter-dealer quotation system on which the stock is then traded or
quoted) on the last day of the Offering Period or on the most recently
preceding date on which there was such a sale (the "Alternate Offering
Price").
As of the Purchase Date, the Alternate Offering Price shall be ascertained.
The Plan Committee will then apply all funds credited to the Participants' Plan
Accounts to purchase shares of Common Stock available under the Offering.
Unless a Participant has withdrawn prior to the Purchase Date pursuant to
Section 12, and subject to the provisions of Sections 25 and 28, a Participant
shall be deemed to have elected to purchase the maximum number of whole shares
of Common Stock which may be purchased with the amount credited to his Plan
Account as of the Purchase Date at the lower of the Initial Offering Price or
the Alternate Offering Price. Fractional shares will not be issued under the
Plan and any funds in a Participant's Plan Account which would have been used to
purchase fractional shares shall be retained in such Plan Account for the next
Offering Period.
11. Termination of Employment; Termination of Eligibility. In the event of a
Participant's termination of employment for any reason (including death or
disability), the Participant's participation in the Plan shall immediately
terminate without notice to the Participant, and all Payroll Deductions credited
to such Participant's Plan Account shall be returned to such Participant in
cash, without interest.
An Eligible Employee of a company included in the Plan which ceases to be a
Participating Subsidiary shall be deemed to have terminated employment for
purposes of this Section as of the date such company ceases to be a
Participating Subsidiary unless, as of such date, the Participant shall become
an Eligible Employee of the Company or of any Participating Subsidiary then
included in the Plan.
12. Withdrawal from Offering. Each Participant shall have the right, at any
time prior to the Purchase Date, to withdraw from an Offering by providing
fifteen (15) days' prior written notice to the Chief Financial Officer of the
Company revoking his Payroll Deduction. A Participant who elects to cease
participation in the Plan by revoking his Payroll Deduction may
<PAGE>
not resume participation in the Plan until after the expiration of one full
Offering Period following the Offering Period in which he withdraws and ceases
participation. As promptly as practicable after the receipt of a revocation
notice, all Payroll Deductions credited to such Participant's Plan Account shall
be returned to such Participant in cash, without interest.
13. Stock Certificates. As promptly as practicable after the Purchase Date
of each Offering, the Plan Committee will deliver to the Administrator all
shares of Common Stock purchased with the funds credited to the Plan Accounts.
The Administrator will hold the shares of Common Stock of all Participants in
its name or in the name of its nominee evidenced by as many or as few
certificates as the Administrator determines. No certificate representing
shares of Common Stock purchased for a Participant's Plan Account will be issued
to the Participant unless he or she makes a request in writing or until his or
her Plan Account is terminated, or such Participant withdraws from an Offering.
So long as the stock credited to a Participant's Plan Account is held by the
Administrator, all rights accruing to an owner of record of such stock,
including, without limitation, voting rights and rights of disposal, shall
belong to the Participant for whose account such stock is held.
A Participant may elect, at any time and from time to time, to receive a
stock certificate for shares credited to his Plan Account after the purchase
price for such shares has been paid in full. In such event, certificates for
shares of Common Stock shall be issued only in the name of the Participant
unless the Participant or the Participant's designee (in the event the
Participant has died) elects otherwise by written notice to the Plan Committee
and the Plan Committee gives prior written consent to such election.
If a Participant withdraws from an Offering, terminates employment for any
reason, or elects to terminate participation in the Plan, the Administrator will
transfer to the Participant a stock certificate for whole shares credited to his
Plan Account (and for which the purchase price has been paid in full), unless
the Participant elects to sell all or part of the Participant's shares in
accordance with Section 14 below.
14. Sale of Shares of Common Stock. A Participant may request that the
Administrator sell all or any part of the shares of Common Stock credited to
such Participant's Plan Account. Upon receipt of a written request from a
Participant, the Administrator, as the Participant's agent, will sell the number
of shares of Common Stock specified in the Participant's request within five
business days of receipt by the Administrator of instructions to sell the shares
of Common Stock, and will deliver to the Participant the proceeds of the sale,
less a handling charge, brokerage commissions, and other costs of sale. Whole
and fractional shares may be aggregated and sold with those of other
Participants, in which case the proceeds for each Participant will be based on
the average sales price of all shares aggregated and sold. Any sale may, but
need not, be made by purchase for other Plan Accounts, subject to and in
accordance with the terms of the Plan, in which case the price will be the
closing sale price of Common Stock as reported by the principal securities
exchange or the inter-dealer quotation system on which the stock is traded or
quoted on the date of receipt by the Administrator of the notice of the
Participant's desire to sell shares of Common Stock or, if the stock is not
traded on the date
<PAGE>
of receipt, the mean on the next prior date that it was so traded. No sales of
any fractional shares shall be permitted.
15. Voting of Shares of Common Stock. The Administrator will vote a
Participant's shares of Common Stock as instructed by the Participant on a form
to be furnished by and returned to the Administrator at least ten days (or such
shorter period as the law may require) before the meeting at which such shares
of Common Stock are to be voted. The Administrator will not vote shares of
Common Stock for which no instructions are received.
16. Tender or Exchange Offer. If a tender offer or exchange offer is
commenced for shares of Common Stock, the Administrator, upon receipt of
information with respect thereto as the holder of record of the shares of Common
Stock, will either (i) forward, or arrange for the forwarding of, information
provided by the offeror to holders of record of Common Stock to each Participant
or (ii) provide to the offeror the name and mailing address of each Participant
as reflected on the records of the Administrator with instructions to mail such
material to each Participant. The Administrator will tender all or part of a
Participant's shares of Common Stock in response to written instructions from
the Participant in such form as the Administrator may reasonably require and
only if such instructions are received by the Administrator at least five days
(or such shorter period as may be required by law) prior to the termination of
the offer. Unless the Administrator has received instructions in accordance
with the previous sentence, it will not tender a Participant's shares of Common
Stock. Except to the extent disclosure is required to tender shares of Common
Stock pursuant to proper written instructions, the Administrator will maintain
the confidentiality of a Participant's election to tender or not tender shares
of Common Stock.
17. Cash Dividends, Stock Dividends and Splits. Any cash dividends paid on
shares credited to a Participant's Plan Account will, when received by the
Administrator, be credited to the Participant's Plan Account and used to
purchase additional shares on the next Purchase Date. Any stock dividends and
any shares received as a result of a stock split on any shares of Common Stock
credited to a Participant's Plan Account will, when received by the
Administrator, be credited to the Participant's Plan Account.
18. Statements. As soon as practicable after the cash credited to the
Participant's Plan Account has been applied to the purchase of shares of Common
Stock (but in no event later than 20 calendar days after the purchase) the
Administrator will mail a statement to the Participant summarizing the
transactions in the Participant's Plan Account since the last statement.
19. No Rights as a Stockholder. None of the rights or privileges of a
stockholder of the Company shall exist with respect to shares of Common Stock
purchased under this Plan until a certificate representing such shares is
issued.
20. Rights not Transferable. Except as hereinafter set forth and unless
otherwise provided by law, no Participant shall have the right to sell, assign,
transfer, pledge, or otherwise dispose of or encumber either the right to
participate in the Plan or any interest in the
<PAGE>
Participant's Plan Account, and such right and interest shall not be liable for
or subject to the debts, contracts, or liabilities of such Participant. If any
such action is taken by the Participant, or any claim asserted by another party
in respect of such right and interest, such action or claim will be treated as
notice of cancellation, and except as may otherwise be required by law, such
event shall be deemed to be a withdrawal from the Plan and the Participant's
Plan Account shall be repaid to him as provided in Section 12.
Provided, however, that a Participant may designate in writing (on a form
provided by the Plan Committee) the person who shall have the right to receive
the Participant's Plan Account in the event of the Participant's death. In the
event of death, if a Participant has not designated a person to receive the
Participant's Plan Account, such Participant's Plan Account shall be distributed
to the Participant's estate.
21. Application of Funds. All funds received or withheld by the Plan
Committee under this Plan as Payroll Deductions shall be held by the Company
without segregation and may be used for any general corporate purpose without
restriction.
22. Adjustments upon Changes in Capitalization. Notwithstanding any other
provision of the Plan, in the event of any change in the outstanding Common
Stock by reason of a stock dividend, recapitalization, merger, consolidation,
split-up, combination or exchange of shares, or the like, the aggregate number
and class of shares available under the Plan, the number and class of shares
subject to outstanding Offerings, the maximum number of shares which an
individual Eligible Employee may purchase, and the Initial Offering Price shall
be proportionately adjusted, and such other adjustments shall be made as may be
deemed equitable, by the Plan Committee, whose determinations shall be
conclusive.
23. Amendments of the Plan. Except as provided below, the Compensation
Committee may at any time, and from time to time, make such changes in and
additions to the Plan as the Compensation Committee deems advisable. However,
the following amendments may only be made by the Board of Directors with
approval by vote of the holders of a majority of shares of Common Stock voted at
a properly convened meeting at which a quorum is present: (a) increase the
maximum number of shares which may be purchased under the Plan, (b) reduce the
purchase price per share, or (c) amend the requirements for an Eligible
Employee. No amendment of the Plan may, without the consent of the Participant
with respect to any outstanding Offering, materially and adversely affect the
Eligible Employee's rights with respect to such Offering.
24. Termination of the Plan. This Plan shall terminate (a) on the date that
all of the shares authorized for sale under the Plan have been purchased, except
as otherwise extended by authorizing additional shares, or (b) at any time, at
the discretion of the Board of Directors of the Company; provided, however, that
no termination shall affect outstanding Offerings.
Upon termination of the Plan and the exercise or lapse of all Offering rights
hereunder, all remaining amounts credited to Plan Accounts of Participants shall
be returned to such Participants in cash, without interest.
<PAGE>
25. Allocation of Shares if Exceed Maximum Offered. If the total number of
shares which would otherwise be purchased by Participants through Payroll
Deductions under any Offering exceeds the shares available for purchase under
the Offering, the Plan Committee may allocate the available shares among the
Participants on any basis consistent with the terms of the Plan, and any
remaining funds credited to a Participant's Plan Account on the Purchase Date
shall be returned to the Participant in cash, without interest.
26. Governmental and Other Regulations. The obligation of the Company to
issue or transfer and deliver shares under this Plan shall be subject to (a)
compliance with all applicable laws, governmental rules and regulations and
administrative action, (b) the effectiveness of a Registration Statement under
the Securities Act of 1933, as amended, with respect to such issue or transfer,
if deemed necessary or appropriate by counsel for the Company, and (c) the
condition that the shares of Common Stock reserved for issuance upon the
purchase of shares subject to Offering under the Plan shall have been listed (or
authorized for listing upon official notice of issuance) upon each securities
exchange on which outstanding shares of the same class are then listed, or
authorized for quotation on the inter-dealer quotation system on which the
shares are then quoted.
27. Approval of Stockholders. The Plan has been adopted by the Board of
Directors of the Company, subject to the approval of the stockholders of the
Company. If the stockholders have not approved the Plan by a vote of the
holders of a majority of shares of Common Stock voted at a properly convened
meeting at which a quorum is present within twelve (12) months after the date of
adoption of the Plan by the Board of Directors, the Plan shall terminate on the
date which is twelve (12) months after the date of adoption of the Plan by the
Board, and all funds held in Participants' Plan Accounts shall be returned to
such Participants in cash, with interest at 5% per annum from the date of
transfer to such accounts to the date of refund. If the stockholders have not
approved the Plan by a vote of the holders of a majority of shares of Common
Stock voted at a properly convened meeting at which a quorum is present prior to
the last day of the first Offering Period, no funds in a Participant's Plan
Account may be used to purchase shares under Section 7 above until such
stockholder approval has been obtained; in that event, the first Purchase Date
shall be the fifth business day after the date of stockholder approval.
28. $25,000 Limitation. No Eligible Employee shall be included in an
Offering which permits him to purchase Common Stock under all employee stock
purchase plans of the Company and its subsidiaries to accrue (within the meaning
of Section 423(b)(8) of the Code) at a rate which exceeds $25,000 of fair market
value of such capital stock (determined at the Offering Date) for each calendar
year in which such Offering is outstanding at any time.
29. Indemnification. No current or previous member of the Board of
Directors, the Compensation Committee, or the Plan Committee, nor any officer or
employee of the Company acting on behalf of the Board of Directors, the
Compensation Committee, or the Plan Committee, shall be personally liable for
any action, determination, or interpretation taken or made in good
<PAGE>
faith with respect to the Plan, and all such members of the Board of Directors,
the Compensation Committee, or the Plan 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. The foregoing right of indemnification
shall not be exclusive of any other rights of indemnification to which such
individuals may be entitled under the Company's Certificate of Incorporation or
Bylaws, as a matter of law, or otherwise.
30. 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 rights to purchase Common Stock granted or
the shares of Common Stock to be purchased or transferred hereunder are being
acquired for investment and not with a view to their distribution.
31. No Right to Continue Employment. This Plan does not constitute a
contract of employment. Nothing in the Plan or in any related documentation
confers upon any employee the right to continue in the employ of the Company or
any of its subsidiaries or interferes with or restricts in any way the right of
the Company or any of its subsidiaries to discharge any employee at any time
(subject to any contract rights of such employee).
32. Governing Law. The law of the State of Delaware will govern all matters
relating to this Plan except to the extent it is superseded by the federal laws
of the United States of America.
33. Construction of Plan. The captions used in this Plan are for convenience
only and shall not be construed in interpreting the Plan. Whenever the context
so requires, the masculine shall include the feminine and neuter, and the
singular shall also include the plural, and conversely.
<PAGE>
Exhibit 5.1
HAYNES AND BOONE, L.L.P.
1000 Louisiana Street, Suite 4300
Houston, Texas 77002
(713) 547-2000
June 30, 1999
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 800,000 shares of Common Stock, par value $0.10 per share (the
"Common Stock"), of the Company that may be issued pursuant to the terms of the
Company's Employee Stock Purchase 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;
(iii) certificates of certain officers and directors of the Company; (iv) the
Plan; 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 prices paid
for shares of Common Stock 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 800,000 shares of Common Stock
covered by the Registration Statement, which may be issued from time to time
pursuant to the purchase of shares of Common Stock 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, will be validly
issued, fully paid and nonassessable.
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,
/s/ Haynes and Boone, L.L.P.
Haynes and Boone, L.L.P.
<PAGE>
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement (Form
S-8) pertaining to the IMCO Recycling Inc. Employee Stock Purchase Plan of our
report dated February 1, 1999, 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, 1998 filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Dallas, Texas
June 29, 1999
