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EXHIBIT 10.1
September 15, 1997
Mr. and Xxx. Xxxxxxx Xxxxxxxxx
Alchem Aluminum, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Xxxx and Xxxxxx:
This letter will confirm the understandings of IMCO Recycling Inc.
("IMCO") and each of you (the "Sellers") with respect to IMCO's purchase of all
of the outstanding shares of capital stock of Alchem Aluminum, Inc. ("Alchem").
The material terms of the proposed transaction are as follows:
1. Purchase of Stock. IMCO will purchase all of the outstanding capital
stock of Alchem (the 'Stock"), all of which is owned by the Sellers. At
closing, the Sellers will deliver the Stock to IMCO free and clear of all liens
and encumbrances.
2. Purchase Price. The total purchase price for the Stock will be
$49,250,000, less the amount of Alchem's obligations for borrowed money as of
the closing. The purchase price will be paid in shares of IMCO common stock.
The average closing price of IMCO common stock for the 20 trading days
preceding the date of this letter will be utilized to determine the number of
shares of IMCO common stock to be issued at closing.
3. Registration Rights. The IMCO common stock to be issued at closing
will consist of newly issued shares not registered with the Securities and
Exchange Commission. In order to provide liquidity, IMCO will provide the
Sellers with "piggy back" registration rights beginning in 1998, and with one
demand registration right beginning three years after closing. The specific
terms of such registration rights will be mutually agreed upon.
4. Transfer Restrictions. All shares of IMCO common stock issued at
closing will be restricted from resale. However, up to 350,000 of the shares
may be freely transferred after one year, up to an additional 350,000 shares
may be transferred after two years, and all the remaining shares may be
transferred after three years.
5. Escrow. An aggregate of 150,000 shares of the IMCO common stock
issued at closing will be held in escrow for a period of three years in order
to assure IMCO an adequate remedy against potential breaches of the Sellers'
representation and warranties set forth in the definitive purchase agreement.
6. Employment Agreements. Key employees of Alchem will enter into
employment agreements, which will include non-competition provisions.
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7. Definitive Purchase Agreement. The parties intend to negotiate and
execute a definitive purchase agreement (which will set forth the definitive
terms of the transaction) as soon as is practicable. In the definitive purchase
agreement, Alchem and the Sellers will make standard representations and
warranties concerning title to the Alchem stock, the absence of material
litigation, the absence of environmental liabilities, the financial condition
of Alchem, and other standard representations and warranties which are
customary in a transaction of this nature.
8. No Other Negotiations. Until October 31, 1997, neither Alchem nor
any of the Sellers will enter into discussions or negotiations with any
individual or firm (other than IMCO) relating to the sale of all or
substantially all of the stock of Alchem, the sale of all or substantially all
of its assets, a merger or consolidation, the issuance of capital stock of
Alchem, or any other form of business combination or capital transaction with
Alchem. The Sellers will immediately terminate any other existing discussions
or negotiations with respect to any of the foregoing.
9. No Disclosure. All parties will hold this letter and its contents
in strict confidence, and will not disclose this letter or its contents without
the prior written authorization of the other parties, subject to the
requirements of applicable law.
10. Operations of Alchem. From the date of this letter until the
closing of the transaction, the Sellers will cause the operations of Alchem to
be conducted in the ordinary course, consistent with past practice.
11. Expenses. The Sellers (on the one hand) and IMCO (on the other
hand) will each pay all of their respective expenses in connection with the
transaction. However, IMCO will pay the filing fee in connection with the
initial filings of the parties under the Xxxx-Xxxxx- Xxxxxx Antitrust
Improvements Act of 1976.
12. Conditions. The transaction described above will be subject to,
among other conditions, the following:
(a) Execution and delivery of a definitive purchase agreement
setting forth the terms and conditions of the transaction,
and containing usual and customary representations and
warranties, covenants, indemnities and closing conditions;
(b) Approval of the Board of Directors of IMCO;
(c) Satisfactory "due diligence" examination by IMCO of all
aspects of the proposed transaction;
(d) Compliance with the Xxxx-Xxxxx Xxxxxx Antitrust Improvements
Act of 1976;
(e) There must be no material change in the financial condition
or operations of Alchem from that reflected in Alchem's
financial statements dated June 30, 1997; and
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(f) Receipt of a satisfactory Phase 1 environmental report.
No provision of this letter will constitute a legally binding
obligation of any party unless included in the definitive purchase agreement
contemplated hereby (except with respect to items 8 and 9, which are intended
to be legally binding).
If the foregoing terms correctly set forth our understandings, please
so indicate by executing the enclosed copy of this letter and returning the
copy to the undersigned.
Very truly yours,
IMCO RECYCLING INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chairman of the Board and CEO
AGREED TO AND ACCEPTED:
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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