S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on February 21, 2001. 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 1500 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. 2000 RESTRICTED STOCK 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 1500 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
Proposed Maximum Proposed Maximum Title of Amount to be Offering Price Per Aggregate Offering Amount of Securities to be Registered Registered(1)(2) Share (2) Price(2) Registration Fee ------------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.10 per share 300,000 $6.16 $1,849,500 $463.00 ===============================================================================================================================
(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. 2000 Restricted Stock Plan (the "Plan"). (2) The 300,000 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 February 16, 2001, as reported on the New York Stock Exchange composite tape ($6.16 per share). 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") 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 14, 2000, as filed with the Commission on Form 10-K, File No. 001-07170, for the fiscal year ended December 31, 1999; (b) The Company's Quarterly Reports, dated May 15, 2000, August 17, 2000 (Notification of late filing - August 15, 2000), and November 14, 2000, as filed with the Commission on Form 10-Q, File No. 001-07170. (c) 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, 1999; and (d) The description of the Company's common stock, par value $0.10 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 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 (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding. 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 -2- 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. 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 $0.10 per share. Exhibit 4.1 to the Company's Registration Statement on Form S-2, 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 March 24, 1999, filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1999, and incorporated herein by reference. 4.4 The Company's 2000 Restricted Stock Plan. 5.1 Opinion of Haynes and Boone, L.L.P. -3- Exhibit Description ------- ----------- 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 -4- offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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. -5- 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 February 20, 2001. 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 February 20, 2001. 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, Paul V. Dufour Chief Financial Officer and Secretary (Principal Financial Officer) /s/ Robert R. Holian Vice President and Controller ------------------------ (Principal Accounting Officer) Robert R. Holian /s/ Jeb Hensarling Director ------------------------ Jeb Hensarling /s/ John J. Fleming Director ------------------------ John J. Fleming /s/ Steve Bartlett Director ------------------------ Steve Bartlett /s/ Don Navarro Director ----------------------- Don Navarro /s/ William Warshauer Director ------------------------ William Warshauer /s/ Hugh G. Robinson Director ------------------------ Hugh G. Robinson 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, 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 March 24, 1999, filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 1999, and incorporated herein by reference. 4.4 The Company's 2000 Restricted Stock 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).