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EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("AGREEMENT") is made and entered
into as of November 14, 1997, by and between IMCO Recycling Inc., a Delaware
corporation (the "COMPANY"), and the Purchasers (as defined below).
Recitals
WHEREAS, the Company, the Purchasers, IMCO Recycling of Coldwater
Inc., a Delaware corporation ("IMCO RECYCLING OF COLDWATER"), and Alchem
Aluminum, Inc., an Indiana corporation ("ALCHEM"), have entered into an
Agreement and Plan of Merger dated as of the date hereof (the "MERGER
AGREEMENT"), pursuant to which the Company has acquired all of the issued and
outstanding capital stock of Alchem; and
WHEREAS, pursuant to the Merger Agreement, each of the Purchasers has
acquired shares (collectively, the "SHARES") of the Company's common stock,
$0.10 par value per share ("COMMON STOCK"); and
WHEREAS, the Company wishes to grant each of the Purchasers certain
registration rights with respect to the Shares;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"PURCHASERS" shall mean the owners of Common Stock identified on the
signature page hereof, each of whom is referred to individually herein as a
"PURCHASER" and a transferee of Registrable Securities from a Purchaser,
provided such transfer complies with Section 3.2 of this Agreement.
"REGISTRABLE SECURITIES" shall mean (i) the Shares and any and all
shares of Common Stock issued or issuable at any time or from time to time in
respect of which the Company has previously or may in the future grant in
writing registration rights (collectively, the "REGISTRABLE COMMON"); and (ii)
any Common Stock issued or issuable at any time or from time to time in respect
of the Shares or the Registrable Common upon a stock split, stock dividend,
recapitalization or other similar event involving the Company.
The terms "REGISTER," "REGISTERED", and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering by the
Commission of the effectiveness of such registration statement.
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"REGISTRATION EXPENSES" shall mean all expenses, other than Selling
Expenses (as defined below), incurred by the Company in complying with Sections
2.1 and 2.2 hereof, including, without limitation, all registration,
qualification and filing fees, exchange listing fees, printing expenses, escrow
fees, fees and disbursements of counsel for the Company and one counsel for all
holders of Registrable Securities (in an amount not to exceed $5,000), blue sky
fees and expenses and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees
of the Company which shall be paid in any event by the Company).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean only the underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
a Purchaser.
"UNDERWRITTEN PUBLIC OFFERING" shall mean a public offering in which
the Common Stock is offered and sold on a firm commitment basis through one or
more underwriters, all pursuant to an underwriting agreement between the
Company and such underwriter(s).
2. Registration Rights.
2.1 Requested Registration.
(a) Request for Registration. Subject to the terms hereof
(and except as otherwise provided in Section 3.2), if at any time
after the third anniversary of the date of this Agreement, any
Purchaser(s) who collectively own at least a majority of the
Registrable Securities then owned by the Purchasers makes a
written request that the Company register under the Securities Act all
or any portion (provided that such portion will have an
aggregate offering price of at least $5,000,000) of the Registrable
Securities, the Company shall:
(i) promptly give written notice of the proposed
registration to all other Purchasers; and
(ii) as soon as practicable, use commercially
reasonable efforts to effect such a registration statement
(including, without limitation, filing post-effective
amendments, appropriate qualifications under applicable blue
sky laws or other compliance), and will also include in such
registration all Registrable Securities of other Purchasers
with respect to which the Company has received written
requests for inclusion therein within 20 days after the
receipt of the Company's notice. The Company shall be
obligated to register Registrable Securities for the
Purchasers pursuant to this Section 2.1 on one occasion only,
unless solely because of the rights of the Existing Holders
(as defined in Section 2.4) the Purchasers are not able to
include at least 90% of the Registrable Securities they wish
to include in such registration, in which case such
registration shall not count under this Section 2.1.
(b) Postponed Registration. Notwithstanding anything to
the contrary contained herein, the Company may delay the filing or
effectiveness of a registration statement under this Section 2.1 after
receipt of a request under this Section 2.1
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(i) during the period commencing 60 days prior to the Company's
estimated filing date of, and ending on a date 90 days after the
effective date of, a registration statement filed by the Company
relating to an Underwritten Public Offering for which the Company has
delivered the notice to Purchasers required in Section 2.2 or
(ii) for a period of up to 180 days if at the time of such request,
the Board of Directors of the Company determines in its reasonable
judgment and in good faith that the filing of such registration
statement or the making of any required disclosure in connection
therewith would have a material adverse effect on the Company or
substantially interfere with a significant transaction in which the
Company is then engaged.
2.2 Company Registration.
(a) Notice of Registration. Subject to the terms hereof,
beginning on January 1, 1998, if at any time or from time to time
(except as otherwise provided in Section 3.2), the Company shall
determine to register any of its Common Stock for its own account
relating to an Underwritten Public Offering, the Company shall:
(i) promptly, but in any event at least 30 days
before the Company files a registration statement pursuant to
an Underwritten Public Offering, give to each Purchaser
written notice thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
the underwriting involved therein, such Registrable Securities
as each Purchaser may request in a writing delivered to the
Company within 20 days after each Purchaser's receipt of the
Company's written notice delivered pursuant to Section
2.2(a)(i) above.
(b) Right to Terminate Registration. The Company shall
have the right to terminate or withdraw any registration initiated by
it under this Section 2.2 prior to the effectiveness of such
registration whether or not any Purchaser has elected to include its
Registrable Securities in such registration, provided, however, that
in such event, the Company shall promptly pay all reasonable
out-of-pocket costs and expenses of the Purchasers (including, without
limitation, all reasonable fees and disbursements of one law firm
chosen to represent the Purchasers) incurred in connection with such
terminated registration.
2.3 Underwriting. The right of each Purchaser to
registration pursuant to Sections 2.1 and 2.2 shall be conditioned
upon such Purchaser's participation in such underwriting, and the
inclusion of Registrable Securities in the underwriting shall be
limited to the extent provided herein. Each Purchaser and all other
stockholders proposing to distribute their securities through such
underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company. Subject to the
provisions of Section 2.4 below, if the managing underwriter
determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit some
or all of the Registrable Securities that may be included in the
registration and underwriting as follows: the number of Registrable
Securities that may be included in the registration and underwriting
by each Purchaser shall be determined by multiplying the number of
shares of Registrable Securities of all selling stockholders of the
Company which the managing underwriter
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is willing to include in such registration and underwriting, times a
fraction, the numerator of which is the number of Registrable
Securities requested to be included in such registration and
underwriting by each Purchaser, and the denominator of which is the
total number of Registrable Securities which all selling stockholders
of the Company have requested to have included in such registration
and underwriting. To facilitate the allocation of shares in
accordance with the above provisions, the Company may round the number
of shares allocable to any such person to the nearest 100 shares. If
any Purchaser disapproves of the terms of any such underwriting, it
may elect to withdraw therefrom by written notice to the Company and
the managing underwriter, delivered not less than seven days before
the effective date.
2.4 Subordination of Registration Rights.
Notwithstanding any other provision of this Agreement to the contrary,
the registration rights granted pursuant to Sections 2.1 and 2.2 are
expressly subordinate in all respects to the registration rights
previously granted by the Company to each of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Interfunding Inc., a Delaware corporation, ▇▇▇ ▇. ▇▇▇▇▇▇, a resident
of Dallas County, Texas, and PTX Partners, a Texas limited partnership
(collectively, the "EXISTING HOLDERS"), pursuant to that certain
Amended and Restated Registration Agreement, dated September 30, 1988
(the "1988 AGREEMENT"). In the event that the managing underwriter of
any underwriting shall inform the Company of its intention to limit
the number of Registrable Securities to be included in any
registration and underwriting pursuant to Section 2.3 above, all
Registrable Securities held by the Existing Holders who have notified
the Company of their intent to include their Registrable Securities in
such registration and underwriting shall be included in such
registration and underwriting (subject to the terms of the 1988
Agreement), before the Purchasers shall be permitted to include any of
their Shares in such registration and underwriting. In the event that
additional Registrable Securities are available for inclusion in such
registration and underwriting after the inclusion of the Existing
Holders' Registrable Securities, then the number of Registrable
Securities to be included in such registration and underwriting by the
Purchasers shall be determined by multiplying the number of shares of
Registrable Securities remaining after the inclusion of the Existing
Holders' Registrable Securities which the managing underwriter is
willing to include in such registration and underwriting, times a
fraction, the numerator of which is the number of Registrable
Securities requested to be included in such registration and
underwriting by each Purchaser, and the denominator of which is the
total number of Registrable Securities which all Purchasers have
requested to have included in such registration and underwriting.
2.5 Expenses of Registration. All Registration Expenses
incurred in connection with all registrations pursuant to Sections 2.1
and 2.2 shall be borne by the Company. Unless otherwise stated
herein, all Selling Expenses relating to securities registered on
behalf of any Purchaser shall be borne by such Purchaser.
2.6 Registration Procedures. In the case of each
registration, qualification or compliance effected by the Company
pursuant to this Agreement, the Company will keep each Purchaser
advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. At its
expense, the Company will:
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(a) Prepare and file with the Commission a registration
statement with respect to such securities and use commercially
reasonable efforts to cause such registration statement to become and
remain effective with respect to a registration statement filed
regarding an Underwritten Public Offering, for the lesser of (i) 90
days or (ii) until the distribution described in such registration
statement has been completed; and
(b) Furnish to each underwriter such number of copies of
a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents as
such underwriter may reasonably request in order to facilitate the
public sale of the shares by such underwriter, and promptly furnish to
each underwriter and Purchaser notice of any stop-order or similar
notice issued by the Commission or any state agency charged with the
regulation of securities, and notice of NYSE or any other securities
exchange listing; and
(c) Furnish prospectuses, including preliminary
prospectuses and amendments and supplements thereto, to the Purchasers
electing to sell any of their Registrable Securities pursuant to
Sections 2.1 and 2.2 hereof, all in accordance with applicable
securities laws; and
(d) Notify the Purchasers in the event that the Company
becomes aware that a prospectus relating to the Registrable Securities
contains a materially untrue statement or omits to state a material
fact; and
(e) Apply to register or otherwise qualify the
Registrable Securities offered by the Purchasers or any of them under
all applicable blue sky laws of any state.
2.7 Indemnification.
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Purchaser, each of its officers and
directors and partners, and each person controlling each Purchaser
within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or compliance has been effected
pursuant to this Agreement, against all expenses, claims, losses,
damages or liabilities (or actions in respect thereof) to the extent
to which such person or entity is subject, including any of the
foregoing incurred in settlement of any litigation, commenced or
threatened, to the extent such expenses, claims, losses, damages or
liabilities (or proceedings in respect thereof) arise out of or are
based on any untrue statement (or alleged untrue statement) of a
material fact contained in any registration statement, prospectus,
offering circular or other document, or any amendment or supplement
thereto, incident to any such registration, qualification or
compliance, or arise out of or are based on any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or any
violation by the Company of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or
compliance, and the Company will reimburse each Purchaser, each of its
officers and directors and partners, and each person controlling each
Purchaser for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim,
loss, damage, liability or action, provided, however, that the
indemnity contained herein shall not apply to amounts
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paid in settlement of any claim, loss, damage, liability or expense if
settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); provided, further, that
the Company will not be liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement
or omission, made in reliance upon and in conformity with information
furnished to the Company expressly for inclusion in such registration
by such Purchaser or such controlling person specifically for use
therein. Notwithstanding the foregoing, insofar as the foregoing
indemnity relates to any such untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in the preliminary
prospectus but eliminated or remedied in the amended prospectus on
file with the Commission at the time the registration statement
becomes effective or in the final prospectus filed with the Commission
pursuant to the applicable rules of the Commission or in any
supplement or addendum thereto, the indemnity agreement herein shall
not inure to the benefit of any underwriter or (if there is no
underwriter) any Purchaser if a copy of the final prospectus filed
pursuant to such rules, together with all supplements and addenda
thereto, was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act.
(b) To the extent permitted by law, each Purchaser will,
severally but not jointly, if shares held by such Purchaser are
included in the shares as to which such registration, qualification or
compliance is being effected pursuant to the terms hereof, indemnify
and hold harmless the Company, each of its directors and officers,
each person who controls the Company within the meaning of Section 15
of the Securities Act, and each other person selling the Company's
shares covered by such registration statement, each of such person's
officers and directors and each person controlling such persons within
the meaning of Section 15 of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) to the
extent to which such person or entity is subject, arising out of or
based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement,
prospectus, offering circular or other document, or arising out of or
based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or any violation by such Purchaser
of any rule or regulation promulgated under the Securities Act
applicable to such Purchaser and relating to action or inaction
required of such Purchaser in connection with any such registration,
qualification or compliance, and will reimburse the Company, such
other persons, such directors, officers, persons or control persons
for any legal or other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with
information furnished to the Company by such Purchaser expressly for
inclusion in such registration; provided, however, that the indemnity
contained herein shall not apply to amounts paid in settlement of any
claim, loss, damage, liability or expense if settlement is effected
without the consent of the Purchaser (which consent shall not be
unreasonably withheld); and provided, further, that the maximum
liability of any Purchaser under this Section 2.7(b) shall be limited
to the aggregate amount of all sales proceeds actually received by
such Purchaser upon the sale of such Purchaser's Registrable
Securities in connection with such
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registration. Notwithstanding the foregoing, insofar as the foregoing
indemnity relates to any such untrue statement (or alleged untrue
statement) or omission (or alleged omission) made in the preliminary
prospectus but eliminated or remedied in the amended prospectus on
file with the Commission at the time the registration statement
becomes effective or in the final prospectus filed pursuant to
applicable rules of the Commission or in any supplement or addendum
thereto, the indemnity agreement herein shall not inure to the benefit
of the Company, any underwriter or any other person if a copy of the
final prospectus filed pursuant to such rules, together with all
supplements and addenda thereto, was not furnished to the person or
entity asserting the loss, liability, claim or damage at or prior to
the time such furnishing is required by the Securities Act.
(c) Each party entitled to indemnification under this
Section 2.7 (the "INDEMNIFIED PARTY") shall give notice to the party
required to provide indemnification (the "INDEMNIFYING PARTY")
promptly after such Indemnified Party has actual knowledge of any
action or proceeding commenced against, or written demand made on any
such party in respect of which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement unless the failure to give such
notice is materially prejudicial to an Indemnifying Party's ability to
defend such action and provided further, that the Indemnifying Party
shall not assume the defense for matters as to which there is a
conflict of interest or as to which the Indemnifying Party is
asserting separate or different defenses, which defenses are
inconsistent with the defenses of the Indemnified Party. No
Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. No Indemnified Party shall
consent to entry of any judgment or enter into any settlement without
the consent of each Indemnifying Party.
(d) If the indemnification provided for in this Section
2.7 is unavailable to an Indemnified Party in respect of any losses,
claims, damages or liabilities referred to therein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and all stockholders offering
shares in the offering (the "SELLING STOCKHOLDERS") on the other from
the offering of the Company's shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and the Selling Stockholders on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Selling Stockholders on the other
shall be the net proceeds from the offering (before deducting
expenses) received by the Company on the one hand and the Selling
Stockholders on the other. The relative fault of the Company on the
one hand
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and the Selling Stockholders on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company
or by the Selling Stockholders and the parties' relevant intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Selling Stockholders
agree that it would not be just and equitable if contribution pursuant
to this Section 2.7(d) were based solely upon the number of entities
from whom contribution was requested or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this Section 2.7(d). The amount paid or payable
by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to above in this Section 2.7(d) shall be deemed
to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
such action or claim, subject to the provisions of Section 2.7(c)
hereof. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act).
2.8 Holdback Agreements. Each Purchaser agrees not to
effect any public sale or distribution of Common Stock (or other
shares) of the Company, or any shares convertible into or exchangeable
or exercisable for such Common Stock (or other shares), during the 30
days prior to and the 180-day period beginning on the effective date
of any registration statement filed hereunder except as part of such
registration, unless the underwriters managing the registered public
offering otherwise agree.
2.9 Certain Information. Each Purchaser agrees, with
respect to any Registrable Securities included in any registration, to
furnish to the Company such information regarding such Purchaser, the
Registrable Securities and the distribution proposed by such Purchaser
as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or
compliance referred to in Sections 2.1 and 2.2.
2.10 Rule 144 Reporting. With a view to making available
the benefits of certain rules and regulations of the Commission which
may at any time permit the sale of the Restricted Securities (used
herein as defined in Rule 144 under the Securities Act) to the public
without registration, the Company agrees to use its best lawful
efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act,
at all times during which the Company is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT");
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act at all times during which the
Company is subject to such reporting requirements; and
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(c) So long as any Purchaser owns any Restricted
Securities, to furnish to such Purchaser forthwith upon request a
written statement by the Company as to its compliance with the
reporting requirements of said Rule 144 and with regard to the
Securities Act and the Exchange Act at all times during which the
Company is subject to such reporting requirements, a copy of the most
recent annual or quarterly report of the Company, and such other
non-confidential reports and documents of the Company and other
non-confidential information in the possession of or reasonably
obtainable by the Company as such Purchaser may reasonably request in
availing such Purchaser of any rule or regulation of the Commission
allowing Purchaser to sell any such shares without registration.
3. Miscellaneous.
3.1 Governing Law. This Agreement shall be governed in
all respects by the internal laws of the State of Texas.
3.2 No Transfer; Termination. The registration rights
contemplated herein are not transferable, except (i) by operation of
law and by the laws of descent and distribution; (ii) to any member of
a Purchaser's immediate family; or (iii) to any trust, partnership or
other entity as to which all of the beneficiaries or partners consist
of a Purchaser or members of such Purchaser's immediate family. The
registration rights granted herein shall terminate, and the
registration rights will not be exercisable by any Purchaser (or such
Purchaser's lawful transferees pursuant to this Section 3.2) at such
time as all shares of Registrable Securities held by such Purchaser
may immediately be sold under Rule 144 (as amended from time to time)
during any 90-day period.
3.3 Entire Agreement; Amendment. This Agreement
constitutes the full and entire understanding and agreement between
the parties with regard to the subject hereof. This Agreement, or any
provision hereof, may be amended, waived, discharged or terminated
only upon the written consent of the Company and those Purchasers who
are the record holders of at least majority of the Shares issued
pursuant to the Merger Agreement.
3.4 Notices. All notices, consents, waivers and other
communications under this Agreement must be in writing and will be
deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by telecopier (with written
confirmation of receipt), provided that a copy is mailed by registered
mail, return receipt requested or (c) when received by the addressee,
if sent by a nationally recognized overnight delivery service (receipt
requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate by notice to the other parties):
To the Purchasers:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
80 Lane ▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
80 Lane ▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
To the Company:
IMCO Recycling Inc.
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
Central Tower at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer and
Chief Financial Officer
with a copy to:
▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
3.5 Delays or Omissions. Except as expressly provided
herein, no delay or omission to exercise any right, power or remedy
accruing to any party to this Agreement shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any
waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of
any party of any breach or default under this Agreement, or any waiver
on the part of any party of any provisions or conditions of this
agreement, must be in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any party to
this Agreement, shall be cumulative and not alternative.
3.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which
together shall constitute one instrument.
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3.7 Severability. In the event that any provision of
this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision.
3.8 Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not considered
in construing or interpreting this Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have executed this agreement effective
upon the date first set forth above.
COMPANY:
IMCO RECYCLING INC.
By:
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Title:
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PURCHASERS:
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