EXHIBIT 2.2
THIS WARRANT AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAW. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH (I) THE EXPRESS TERMS HEREOF AND (II) THAT CERTAIN AGREEMENT BY
AND BETWEEN HOLDER (AS DEFINED BELOW) AND THE COMPANY (AS DEFINED BELOW) DATED
AS OF THE DATE HEREOF, AND THEN ONLY PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATES' SECURITIES
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR LAWS.
THIS WARRANT IS SUBJECT TO THAT CERTAIN AGREEMENT DATED AS OF THE DATE HEREOF BY
AND BETWEEN HOLDER (AS DEFINED BELOW) AND THE COMPANY (AS DEFINED BELOW) WHICH
CONTAINS PROVISIONS RESTRICTING THE TRANSFERABILITY OF THE WARRANTS TO CERTAIN
PERSONS OR ENTITIES AND PROVIDES THE COMPANY WITH A RIGHT OF FIRST REFUSAL TO
ACQUIRE THE WARRANTS UPON CERTAIN PROPOSED TRANSFERS BY HOLDER.
IMCO RECYCLING INC.
COMMON STOCK PURCHASE WARRANT
-----------------------------
July 21, 1998 Certificate No. ____
Void on July 21, 2002
This Common Stock Purchase Warrant (the "Warrant") is issued as of the 21st
day of July, 1998, by IMCO Recycling Inc., a Delaware corporation (the
"Company"), to _______________________ (the "Holder").
WHEREAS, the Company and the Holder are parties to that certain Memorandum
of Purchase and Sale Agreement dated as of July 21, 1998 (the "Agreement")
pursuant to which the Company purchased all of the outstanding capital stock of
U.S. Zinc Corporation; and
WHEREAS, the Company and the Holder have agreed under the Agreement that
the Company will issue this Warrant under the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Holder agree
as follows.
Part 1. Issuance and Sale of Warrant.
Subject to the terms and conditions hereof, the Company hereby grants to
the Holder the right to purchase from the Company in the manner prescribed
herein an aggregate of ____________ shares of the Company's Common Stock, par
value $0.10 per share (the "Common Stock") at an exercise price of $19.04 per
share. The amount and kind of securities
purchasable pursuant to the rights granted hereunder and the exercise price for
such securities are subject to adjustment pursuant to the provisions contained
in this Warrant.
Capitalized terms not defined herein shall have such meaning as defined in
the Agreement.
Part 2. Exercise of Warrant.
2A. Exercise Period. The Holder may exercise, in whole or in part (but
not as to a fractional share of Common Stock), the purchase rights
represented by this Warrant at any time and from time to time in
the following cumulative installments of shares of Common Stock,
but, subject to the provisions of paragraph 2F hereof, no sooner
than as follows:
Number of
Exercise Date Purchase Rights
------------- ---------------
1. On and after January 1, 1999 Up to 25% of the total shares
purchasable under this Warrant.
2. On and after January 1, 2000 Up to an additional 25% of the
total shares purchasable under
this Warrant.
3. On and after January 1, 2001 Up to an additional 25% of the
total shares purchasable under
this Warrant.
4. On and after January 1, 2002 Up to an additional 25% of the
total shares purchasable under
this Warrant.
The purchase rights represented by this Warrant may be exercised
at any time and from time to time as set forth above up to and
including July 21, 2002, which is the fourth anniversary of the
Closing Date (the "Exercise Termination Date"), after which date
this Warrant shall terminate and no longer be exercisable.
2B. Exercise Procedure.
(i) This Warrant will be deemed to have been exercised when the
Company has received all of the following items (the
"Exercise Time"):
(a) a completed Exercise Agreement, as described in
paragraph 2C below, executed by the Holder, exercising
all or part of the shares then vested pursuant to
paragraph 2A above (the "Purchaser");
(b) this Warrant; and
(c) a cashier's check payable to the Company in an amount in
U.S. dollars equal to the Exercise Price (as such term
is defined in
Part 3 hereof) multiplied by the number of shares of
Common Stock being purchased upon such exercise. In lieu
of the payment required by this paragraph 2B(i)(c),
Holder may exercise the Conversion Right set forth in
paragraph 2E hereof.
(ii) Certificates for shares of Common Stock purchased upon
exercise of this Warrant will be delivered by the Company to
the Purchaser within three (3) business days after the date
of the Exercise Time. Unless this Warrant has expired or all
of the purchase rights represented hereby have been
exercised, the Company will prepare a new Warrant,
substantially identical hereto, representing the rights,
formerly represented by this Warrant, which have not expired
or been exercised and will, within such three-day period,
deliver such new Warrant to the Holder.
(iii) The Common Stock issuable upon the exercise of this Warrant
will be deemed to have been issued to the Purchaser at the
Exercise Time, and the Purchaser will be deemed for all
purposes to have become the record holder of such Common
Stock at the Exercise Time.
(iv) The Company will pay all taxes (other than any income taxes
or other similar taxes), if any, attributable to the initial
issuance of the Warrant and the issuance of the shares of
Common Stock upon the exercise of the Warrant, provided,
however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of the issuance
or delivery of any Warrant, or the transfer thereof, and no
such issuance, delivery or transfer shall be made unless and
until the person requesting such issuance or transfer has
paid to the Company the amount of any such tax, or has
established, to the satisfaction of the Company, that no
such tax is payable or such tax has been paid. Each share of
Common Stock issuable upon exercise of this Warrant will,
upon payment of the Exercise Price therefor, be fully paid
and nonassessable and free from all liens and charges with
respect to the issuance thereof.
(v) The Company will not close its books against the transfer of
this Warrant or of any share of Common Stock issued or
issuable upon the exercise of this Warrant in any manner
which interferes with the timely exercise of this Warrant.
The Company will from time to time take all such action as
may be necessary to assure that the par value per share of
the unissued Common Stock acquirable upon exercise of this
Warrant is at all times equal to or less than the Exercise
Price then in effect.
2C. Exercise Agreement. Upon any exercise of this Warrant, the
Exercise Agreement, substantially in the form set forth in Exhibit
I hereto, will be completed and executed, and if the number of
shares of Common Stock to be issued does not include all the
shares of Common Stock purchasable hereunder, a new Warrant for
the unexercised portion of the purchase rights hereunder shall be
delivered to the Holder. Such Exercise Agreement will be dated the
actual date of execution thereof.
2D. Fractional Shares. If a fractional share of Common Stock would,
but for the provisions of paragraph 2A, be issuable upon exercise
of the rights represented by this Warrant, the Company will,
within seven (7) days after the date of the Exercise Time, deliver
to the Purchaser a check payable to the Purchaser in lieu of such
fractional share in an amount equal to the difference between
Market Price (as defined hereinbelow) of such fractional share as
of the date of the Exercise Time and the Exercise Price with
respect to such fractional share.
"Market Price" means as to any security the average of the closing
prices of such security's sales on all domestic national
securities exchanges on which such security may at the time be
listed, or, if there have been no sales on all such exchanges on
any day, the average of the closing bid and asked prices on all
such exchanges at the end of such day, or, if on any day such
security is not so listed, the closing sale price on such day in
the Nasdaq Stock Market, or if there is no closing sale price the
average of the representative bid and asked prices quoted in the
Nasdaq Stock Market as of 4:00 P.M., New York time, on such day,
or, if on any day such security is not quoted in the Nasdaq Stock
Market, the average of the highest bid and lowest asked prices in
the domestic over-the-counter market as reported by the OTC
Bulletin Board, in each such case averaged over a period of
twenty-one (21) days consisting of the day as of which Market
Price is being determined and the twenty (20) consecutive business
days prior to such day; provided that if such security is listed
on any domestic national securities exchange, the term "business
days" as used in this sentence means business days on which such
exchange is open for trading. If at any time such security is not
listed on any domestic national securities exchange or quoted in
the Nasdaq Stock Market or the domestic over-the-counter market,
the Market Price will be the fair value thereof determined jointly
by the Company and the Holder; provided that if such parties are
unable to reach agreement within a reasonable time, such fair
value will be determined in good faith by the Company as of the
Exercise Time.
2E. Right to Convert Warrants.
(i) The Holder shall have the right to convert this Warrant (the
"Conversion Right") at any time and from time to time to the
extent the purchase rights with respect to the shares
hereunder have vested pursuant to paragraph 2A (or earlier
if the exercisability of this Warrant is accelerated
pursuant to paragraph 2F) and prior to the expiration of the
Exercise Termination Date, into shares of Common Stock as
provided for in this paragraph 2E. Upon exercise of the
Conversion Right, the Company shall deliver to the Holder
(without payment by the Holder of any Exercise Price) that
number of shares of Common Stock equal to the quotient
obtained by dividing (a) the value of the purchase rights
with respect to the vested shares under this Warrant to be
converted at the time the Conversion Right is exercised
(determined by subtracting the aggregate Exercise Price for
such shares to be converted in effect immediately prior to
the exercise of the Conversion Right from the product
obtained by multiplying such number of shares of Common
Stock to be converted by the Market Price per share of
Common Stock determined as of the immediately preceding
business day) by (b) the
Market Price per share of Common Stock determined as of the
immediately preceding business day.
(ii) The Conversion Right may be exercised by the Holder at any
time prior to its expiration on any business day by
delivering a written notice in the form attached hereto as
Exhibit II (the "Conversion Notice") to the Company,
exercising the Conversion Right and specifying (a) the total
estimated number of shares of Common Stock the Holder
proposes to acquire pursuant to such conversion and (b) a
place and date not less than one nor more than 20 business
days from the date of the Conversion Notice for the closing
of such purchase. Following receipt of the Conversion
Notice, the Company shall notify Holder of the Company's
calculation of the Market Price and, if sufficient vested
shares are available to Holder to acquire the number of
shares of Common Stock specified in the Conversion Notice,
shall notify Holder that such exercise of the Conversion
Right has been accepted.
(iii) At any closing under paragraph 2E(ii) hereof, (a) the Holder
will surrender this Warrant and (b) the Company will deliver
to the Holder a certificate or certificates for the number
of shares of Common Stock issuable upon such conversion,
together with cash in lieu of any fractional share, as
provided in paragraph 2D above. In the event and to the
extent that this Warrant has not been converted in full,
then the Company shall prepare and deliver a new Warrant
evidencing the rights hereunder which have not previously
expired, been exercised or converted, in accordance with
paragraph 2B(ii) hereof or this paragraph 2E.
0X. Xxxxxxxxxxxx on Change in Control. In the event of a Change in
Control, then notwithstanding any other provision in this Warrant
to the contrary, all outstanding and unexercised purchase rights
and conversion rights represented by this Warrant shall thereupon
automatically be accelerated and exercisable in full.
For purposes of this Warrant, "Change in Control" shall mean the
occurrence of any of the following events: (i) there shall be
consummated any merger or consolidation pursuant to which shares
of Common Stock would be converted into cash, securities or other
property, or any sale, lease, exchange or other disposition
(excluding disposition by way of mortgage, pledge or
hypothecation), in one transaction or a series of related
transactions, of all or substantially all of the assets of the
Company (a "Business Combination"), in each case unless, following
such Business Combination, all or substantially all of the holders
of the outstanding Common Stock immediately prior to such Business
Combination beneficially own, directly or indirectly, more than
50.1% of the outstanding common stock or equivalent entity
interests of the corporation or entity resulting from such
Business Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the outstanding Common Stock, (ii) the
stockholders of the Company approve any plan or proposal for the
complete liquidation or dissolution of the Company, (iii) any
"person" (as such term is described in Section 3(a)(9) or Section
13(d)(3) under the Securities Exchange Act of 1934) or any "group"
(as such term is used in Rule 13d-5 promulgated under the
Securities Exchange Act of 1934), 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 Securities Exchange Act of 1934,
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 of directors of the
Company, 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 a majority of the directors
then still in office who were directors at the beginning of the
period.
Part 3. Adjustment of Exercise Price and Number of Shares. The initial
Exercise Price as set forth in Part 1 shall be subject to adjustment from time
to time as provided in this Part 3 (such price or such price as last adjusted
pursuant to the terms hereof, as the case may be, is herein called the "Exercise
Price"), and the number of shares of Common Stock obtainable upon exercise of
this Warrant shall be subject to adjustment from time to time as provided in
this Part 3.
3A. Subdivision or Combination of Common Stock. If the Company
subdivides (by any stock split, stock dividend, recapitalization
or otherwise) its outstanding shares of Common Stock into a
greater number of shares, the number of shares of Common Stock
obtainable upon exercise of this Warrant will be proportionately
increased. If the Company at any time combines (by reverse stock
split or otherwise) its outstanding shares of Common Stock into a
smaller number of shares, the number of shares of Common Stock
obtainable upon exercise of this Warrant will be proportionately
decreased. In the event of any adjustment of the total number of
shares of Common Stock obtainable upon the exercise of the
unexercised portion of the Warrant pursuant to this paragraph 3A,
the Exercise Price shall be adjusted to be the amount resulting
from dividing the number of shares of Common Stock covered by the
Warrant immediately after such adjustment into the total amount
payable upon exercise of the Warrant in full immediately prior to
such adjustment. Such adjustment shall be made successively
whenever any event listed above shall occur.
3B. Reorganization, Reclassification, Consolidation, Merger or Sale.
Any capital reorganization, reclassification, statutory share
exchange, consolidation, merger or sale of all or substantially
all of the Company's assets, which is effected in such a way that
holders of Common Stock are entitled to receive (either directly
or upon subsequent liquidation) stock, securities or assets with
respect to or in exchange for Common Stock, is referred to herein
as an "Organic Change." Prior to the consummation of any Organic
Change, the Company will make appropriate provision such that the
Holder will thereafter have the right to acquire and receive in
lieu of or in addition to the shares of Common Stock immediately
theretofore acquirable and receivable upon the exercise of such
Holder's Warrant, such shares of stock, securities or assets as
may be issued or
payable with respect to or in exchange for the number of shares of
Common Stock immediately theretofore acquirable and receivable
upon exercise of such Holder's Warrant had such Organic Change not
taken place.
3C. Certain Events. If any event occurs of the type contemplated by
the provisions of this Part 3 but not expressly provided for by
such provisions, then the Company will make an appropriate
adjustment in the number of shares of Common Stock obtainable upon
exercise of this Warrant so as to protect the rights of the Holder
of the Warrant.
3D. Notices.
(i) Immediately upon any adjustment of the Exercise Price, the
Company will give written notice thereof to the Holder.
(ii) The Company will give written notice to the Holder at least
twenty (20) days prior to the date on which the Company
closes its books or takes a record (A) with respect to any
dividend or distribution on the Common Stock, (B) with
respect to any pro rata subscription offer to holders of
Common Stock or (C) for determining rights to vote with
respect to any Organic Change, dissolution or liquidation.
(iii) The Company will also give written notice to the Holder at
least twenty (20) days prior to the date on which any
Organic Change, dissolution or liquidation will take place.
Part 4. No Voting Rights; Limitations of Liability. This Warrant will not
entitle the Holder hereof to any voting rights or other rights as a stockholder
of the Company. No provision hereof, in the absence of affirmative action by
the Holder to purchase Common Stock, and no enumeration herein of the rights or
privileges of the Holder shall give rise to any liability of the Holder for the
Exercise Price of Common Stock acquirable by exercise hereof or as a stockholder
of the Company.
Part 5. Transfer of Warrants.
5A. Investment Purposes. By accepting this Warrant, the Holder hereby
agrees that such Warrant, and any shares of Common Stock issuable
hereunder, will be held for investment purposes only and not with
a view to resale. This paragraph 5A shall be binding upon the
Holder and his or her heirs, personal representatives, successors
and assigns.
5B. Transferability. The transferability of this Warrant is restricted
by the terms of that certain Agreement, dated as of July 21, 1998,
by and between Holder and the Company, except for assignments
occurring by operation of law. In case of any such transfer by
executors, administrators, guardians or other legal
representatives, duly authenticated evidence of their authority
shall be produced, and may be required to be deposited with the
Company in its discretion. Upon any registration of transfer, the
Company shall deliver a new Warrant or Warrants to the person so
entitled thereto. Notwithstanding the foregoing, the Company shall
have no obligation to cause a Warrant to be transferred on its
books to any person, unless (i) such Warrant and the shares of
Common Stock
issuable upon exercise of such Warrant are registered under a
valid and effective registration statement under the Securities
Act of 1933, as amended, and applicable state blue sky laws or
(ii) the Company receives a written opinion of counsel
satisfactory to the Company that registration is not required
under such act. Any shares of Common Stock issued pursuant to this
Warrant shall bear legends describing, among other things, such
restrictions on transfer, except to the extent such shares are
registered with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended, or at or following such
time as such shares are otherwise transferrable without
restriction pursuant to Rule 144(k) promulgated by the Securities
and Exchange Commission.
Part 6. Warrant Exchangeable for Different Denominations. This Warrant is
exchangeable, upon the surrender hereof by the Holder at the principal executive
offices of the Company, for new Warrants of like tenor representing in the
aggregate the purchase rights hereunder, and each of such new Warrants will
represent such portion of such rights as is designated by the Holder at the time
of such surrender. The date the Company initially issues this Warrant will be
deemed to be the date of issuance thereof regardless of the number of times new
certificates representing the unexpired and unexercised rights formerly
represented by this Warrant shall be issued. All such Warrants representing
portions of the rights hereunder are referred to herein as the "Warrants."
Part 7. Replacement. Upon receipt of evidence reasonably satisfactory to
the Company (an affidavit of the Holder being deemed satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company, or, in the
case of any such mutilation upon surrender of such certificate, the Company will
(at its expense) execute and deliver in lieu of such certificate a new
certificate of like kind representing the same rights represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
Part 8. Notices. Except as otherwise expressly provided herein, all
notices referred to in this Warrant will be in writing and will be delivered
personally or by registered or certified mail, return receipt requested, postage
prepaid and will be deemed to have been given when so delivered or mailed (i) to
the Company, at its principal executive offices, and (ii) to the Holder of this
Warrant, at such Holder's address as it appears in the records of the Company
(unless otherwise indicated by the Holder).
Part 9. Successors and Assigns. The terms, provisions and rights
evidenced by this Warrant shall inure to the benefit of, and be binding upon,
the Company and the Holder and their respective heirs, legal representatives,
successors and permitted assigns.
Part 10. Amendments and Waivers. Except for the number of shares of
Common Stock purchasable under this Warrant and except for the Exercise Price,
any term of this Warrant may be amended and the observance of any term of this
Warrant may be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and the
holders of sixty-six and two thirds (66 2/3%) of the total number of shares of
Common Stock issuable pursuant to this Warrant and other warrants of like tenor
and effect (except for variations necessary to express the name of the holder)
issued of even date herewith. Any waiver or amendment effected in accordance
with this Part 10 shall be binding upon each holder of any shares of Common
Stock purchased under this Warrant at the time outstanding
(including any
securities into which such shares have been converted or exchanged), each future
holder of all such shares of Common Stock, and the Company.
Part 11. Descriptive Headings; Governing Law. The descriptive headings of
the several parts and paragraphs of this Warrant are inserted for convenience
only and do not constitute a part of this Warrant. The construction, validity
and interpretation of this Warrant will be governed by the laws of the State of
Delaware.
* * *
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated as of the date first set forth above.
IMCO RECYCLING INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Corporate Seal]
Attest:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
EXHIBIT I
---------
EXERCISE AGREEMENT
------------------
To: Dated:
---------------------------------- -----------------------------
The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No. _____), hereby agrees to subscribe for and purchase
_______ shares of the Common Stock covered by such Warrant and makes payment
herewith in full therefor at the Exercise Price per share provided by such
Warrant.
Signature:
-------------------------------
Address:
---------------------------------
---------------------------------
EXHIBIT II
----------
CONVERSION NOTICE
-----------------
(To be executed upon conversion of Warrant.)
The undersigned hereby irrevocably elects to exercise the Conversion Right,
represented by this Warrant Certificate, to purchase ________ shares of Common
Stock and herewith tenders in payment for such shares this Warrant Certificate,
all in accordance with the terms hereof. The undersigned requests that a
certificate for such shares be registered in the name of _______ whose address
is ______________________________________________________ and that such
certificate (or any payment in lieu thereof) be delivered to
_____________________ whose address is ____________________________________.
Dated:
--------------------- -------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant.)
