-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, J3qXDkcnPRVpidJGQpbwU4q417NwcFn+7bX8bMu6y/FrgGvwGju6BWsZ7q5sw+A/ iQiv/p+7tex6IQwizW3iGA== 0000934747-04-000040.txt : 20040614 0000934747-04-000040.hdr.sgml : 20040611 20040614094707 ACCESSION NUMBER: 0000934747-04-000040 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20040614 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20040614 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMMONWEALTH INDUSTRIES INC/DE/ CENTRAL INDEX KEY: 0000934747 STANDARD INDUSTRIAL CLASSIFICATION: ROLLING DRAWING & EXTRUDING OF NONFERROUS METALS [3350] IRS NUMBER: 133245741 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-25642 FILM NUMBER: 04859877 BUSINESS ADDRESS: STREET 1: 500 WEST JEFFERSON STREET STREET 2: PNC PLAZA - 19TH FLOOR CITY: LOUISVILLE STATE: KY ZIP: 40202-2823 BUSINESS PHONE: 502-589-8100 MAIL ADDRESS: STREET 1: 500 WEST JEFFERSON STREET STREET 2: PNC PLAZA - 19TH FLOOR CITY: LOUISVILLE STATE: KY ZIP: 40202-2823 FORMER COMPANY: FORMER CONFORMED NAME: COMMONWEALTH ALUMINUM CORP DATE OF NAME CHANGE: 19941228 8-K 1 jb8k61404.txt FORM 8-K FILED JUNE 14, 2004 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): June 10, 2004 COMMONWEALTH INDUSTRIES, INC. (Exact name of registrant as specified in its charter) Delaware 13-3245741 (State of incorporation) (I.R.S. Employer Identification No.) 500 West Jefferson Street PNC Plaza-19th Floor Louisville, Kentucky 40202-2823 (Address of principal executive office) (Zip Code) Registrant's telephone number, including area code: (502) 589-8100 ================================================================================ Item 5. Other Events. On June 10, 2004, the Board of Directors of Commonwealth Industries, Inc. (the "Company") accepted the resignation of Mr. Mark V. Kaminski as a member of the Board of Directors, President and Chief Executive Officer. In connection with Mr. Kaminski's resignation, the Company and Mr. Kaminski entered into a separation agreement, a copy of which is attached hereto as Exhibit 99.1. Mr. Steven J. Demetriou has accepted the position of President and Chief Executive Officer, effective June 11, 2004. The accepted CEO offer letter including term sheet outlining the terms of Mr. Demetriou's employment by the Company is attached hereto as Exhibit 99.2 and the severance agreement between Mr. Demetriou and the Company is attached hereto as Exhibit 99.3. The Company's related press release is attached hereto as Exhibit 99.4, and is incorporated herein by reference. Item 7. Financial Statements and Exhibits (c) Exhibits 99.1 Separation Agreement, dated June 10, 2004, between Commonwealth Industries, Inc. and Mark V. Kaminski. 99.2 CEO offer letter dated June 10, 2004 including term sheet outlining the terms of Steven J. Demetriou's employment by Commonwealth Industries, Inc. 99.3 Severance Agreement, dated June 10, 2004, between Commonwealth Industries, Inc. and Steven J. Demetriou. 99.4 Press Release of Commonwealth Industries, Inc., dated June 11, 2004. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. COMMONWEALTH INDUSTRIES, INC. By /s/ Henry Del Castillo --------------------------------------- Henry Del Castillo Vice President Finance Date: June 14, 2004 Exhibit Index ------------- Exhibit Number Description - ------- ------------------------------------------------------------------ 99.1 Separation Agreement, dated June 10, 2004, between Commonwealth Industries, Inc. and Mark V. Kaminski. 99.2 CEO offer letter dated June 10, 2004 including term sheet outlining the terms of Steven J. Demetriou's employment by Commonwealth Industries, Inc. 99.3 Severance Agreement, dated June 10, 2004, between Commonwealth Industries, Inc. and Steven J. Demetriou. 99.4 Press Release of Commonwealth Industries, Inc., dated June 11, 2004. EX-99 2 jb8k61404ex991.txt EXHIBIT 99.1 Exhibit 99.1 ------------ SEPARATION AGREEMENT This Agreement dated as of June 10, 2004 is by and between Commonwealth Industries, Inc., a Delaware corporation (the "Company"), and Mark V. Kaminski (the "Executive"). IT IS HEREBY AGREED AS FOLLOWS: 1. The payments and benefits under this Separation Agreement are in consideration of the Executive's waiver and release in Section 10 hereof and covenants in Section 13 hereof. 2. The Executive and the Company agree that the Executive's last day of employment with the Company will be on June 11, 2004 (the "Date of Termination"). 3. The Company will pay the Executive a lump sum in cash, on the first business day following the expiration of the Revocation Period (as defined in Section 16, the following amounts, reduced by applicable tax withholding: a. the Executive will be paid his current annual base salary that was earned but unpaid through the Date of Termination; b. any accrued and unpaid vacation pay, the Executive will be paid an amount equal to $ 93,591.40; and c. an additional amount equal to $4,281,981.51(the "Severance Benefit"). 4. The Executive and Executive's dependents, shall receive continued coverage medical, dental, accident, disability and life insurance benefits, subject to the terms and conditions of the applicable plan (and at the same employee costs) in effect for active employees from time to time (or a benefit of substantially equivalent value, if the Executive cannot continue as a participant in the Company's plans), for a three year period following the Date of Termination. Such period shall run concurrently with the period for COBRA continuation coverage. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, then the benefits described above shall be secondary to such benefits during the period of Executive's eligibility. 5. All unvested Company stock options and any other equity awards, if any, shall vest on the Date of Termination. 6. The executive agrees to provide consulting services to the Company at a rate of $500 per hour plus usual and customary business expenses by mutual agreement between the parties. 7. The Company and the Executive agree that as of the Date of Termination there are no other amounts or benefits due to the Executive through such date or thereafter from or under any other plan, program, policy or agreement of the Company, other than tax qualified retirement plans maintained by the Company. The Severance Agreement between an affiliate of the Company and Executive, dated as of Februrary 1, 1996, is cancelled and terminated effective the date hereof, as well as any other individual employment agreement with the Executive. 8. Effective as of the Date of Termination, the Executive hereby resigns as a member of the board of directors of the Company and of all other subsidiaries or affiliates of the Company as well as any other positions held with such subsidiaries or affiliates effective as of the Date of Termination and agrees to execute such other documents as may be requested by the Company to implement such resignations. 9. The Company shall indemnify the Executive to the extent provided pursuant to Section 6.4 of the Company's By-Laws, as in effect on the Date of Termination, and the Executive shall not be entitled to any other rights to indemnification by the Company other than as set forth therein. 10. In consideration of the Severance Benefits, the Executive on behalf of himself and his heirs and assigns, hereby settles, waives, releases and discharges any and all claims, including unemployment for the duration of the severance term, demands, actions or causes of action, known or unknown, which he has or may have against the Company, its affiliates, subsidiaries, parents, joint ventures, and its and their officers, directors, shareholders, employees, predecessors, and partners, and its and their respective successors and assigns, heirs, executors, and administrators (collectively, "Released Parties") including, but not limited to, claims arising from or during his employment with Commonwealth, including any of its predecessors in interest, the terms and conditions of that employment, his separation from that employment, any employment or severance agreement, or any other event, transaction or communication between the Executive and the Released Parties. The Executive recognizes that by signing this Agreement, he may be giving up some claim, demand or cause of action, which he now may have, whether known or unknown. 11. This Agreement includes but is not limited to, the release of any and all claims or charges of discrimination filed, or which could have been filed, against the Released Parties by the Executive with the United States Equal Employment Opportunity Commission, the United States Department of Labor, the Kentucky Bureau of Employment Services, the Kentucky Civil Rights Commission, the Kentucky Department of Labor, or any other state or local civil rights agency; claims arising under the Fair Labor Standards Act of 1938, 29 U.S.C.ss.201, et seq.; Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C.ss.2000e-5, et seq.; the Americans with Disabilities Act of 1990, 42 U.S.C.ss.12101, et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C.ss.2601, et seq.; the The Executive Retirement Income Security Act of 1974, 29 U.S.C.ss.1001, et seq.; the Federal Rehabilitation Act of 1973, 29 U.S.C.ss.701, et seq.; the Equal Pay Act of 1963, as amended, 29 U.S.C.ss.ss.206(d) and 216(b); the Civil Rights Act of 1866, 42 U.S.C.ss.1981; the Civil Rights Act of 1871, 42 U.S.C.ss. 1983; the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C.ss.4301, et seq.; the National Labor Relations Act, 29 U.S.C.ss.151 et seq.; the Labor Management Relations Act, 29 U.S.C.ss.141 et seq.; the Kentucky Civil Rights Act, KRS 344.010 et seq.; the Kentucky Equal Opportunities Act, KRS 207.140 et seq.; the Kentucky Wages and Hours Act, KRS 337.010 et seq.; KRS 342.197 (Workers' Compensation Retaliation); the Kentucky Labor Code; KRS 446.070; federal, state and local Occupational Safety and Health Laws; and any other claims of employment discrimination arising under any state statute or local ordinance, and any other claim of employment discrimination, retaliation, infliction of emotional distress, defamation, invasion of privacy, tortious interference with contractual relations, wrongful termination, outrage, promissory estoppel, claims or demands arising under express or implied contract, breach of contract, tort, public policy, the common law or any federal, state or local statute (including state and local anti-discrimination statutes), ordinance, regulation or constitutional provisions, or other liabilities, suits, debts, claims for back pay, front pay, compensatory or punitive damages, injunctive relief, severance pay, costs, reinstatement, attorneys' fees, business expenses, commissions, bonuses, incentive compensation plans, or payment or reimbursement under any health insurance or other employee benefit plan, insurance premiums or other sums of money, grievances, expenses, demands, controversies of every kind and description, whether liquidated or unliquidated, known or unknown, contingent or otherwise and whether specifically mentioned or not, that exist or might be claimed to exist at or prior to the date of this Agreement. 12. The Executive agrees that in exchange for a portion of the Severance Benefits (which the Executive agrees constitutes consideration for all commitments made herein in addition to anything of value to which he is already entitled), that this Agreement constitutes a knowing and voluntary release and waiver of all rights or claims he may have against the Released Parties including, but not limited to, all rights or claims arising under the Age Discrimination in Employment Act of 1967, 29 U.S.C. ss.ss. 621-634, as amended by the Older Workers' Benefit Protection Act, P.L. 101-433 ("ADEA"), including, but not limited to, all claims of age discrimination in employment and all claims of retaliation in violation of the ADEA and any state statute or local ordinance barring age discrimination. 13. Commonwealth and the Executive agree that, by entering into this Agreement, the Executive does not waive rights or claims that may arise after the date this Agreement is executed. 14. In consideration of the Severance Benefits, the Executive agrees to the following covenants: a. Non-Compete. For a 24 month period after the Date of Termination, the Executive shall not directly or indirectly (without the prior written consent of the Company): i. hold a 5% or greater equity (including stock options whether or not exercisable), voting or profit participation interest in a Competitive Enterprise, or ii. associate (including as an officer, employee, partner, consultant, agent or advisor) with a Competitive Enterprise and in connection with the Executive's association engage, or directly or indirectly manage or supervise personnel engaged, in any activity: (A) that is substantially related to any activity that the Executive was engaged in with the Company or its affiliates during the 12 months prior to the Date of Termination, (excluding as a director) (B) that is substantially related to any activity for which the Executive had direct or indirect managerial or supervisory responsibility with the Company or its affiliates during the 12 months prior to the Date of Termination, or (C) that calls for the application of specialized knowledge or skills substantially related to those used by the Executive in his activities with the Company or its affiliates during the 12 months prior to the Date of Termination. For purposes of this Agreement, "Competitive Enterprise" means any business enterprise anywhere in the United States that either (A) engages in the manufacture and sale of aluminum sheet from recycled aluminum for distributors and transportation, construction and consumer durables end-use markets or (B) holds a 5% or greater equity, voting or profit participation interest in any enterprise that engages in such a competitive activity. b. Non-Solicit. For a 24 month period after the Date of Termination, the Executive shall not, in any manner, directly or indirectly (without the prior written consent of the Company): (i) Solicit any Client to transact business with a Competitive Enterprise or to reduce or refrain from doing any business with the Company, (ii) transact business with any Client that would cause the Executive to be a Competitive Enterprise, (iii) interfere with or damage any relationship between the Company and a Client or (iv) Solicit anyone who is then an employee of the Company to resign from the Company or to apply for or accept employment with any other business or enterprise. For purposes of this Agreement, a "Client" means any client or prospective client of the Company or its affiliates to whom the Executive provided services, or for whom the Executive transacted business, or whose identity became known to the Executive in connection with his relationship with or employment by the Company or its affiliates, and "Solicit" means any direct or indirect communication of any kind, regardless of who initiates it, that in any way invites, advises, encourages or requests any person to take or refrain from taking any action. c. Confidential Information. The Executive hereby acknowledges that, as an employee of the Company, he will be making use of, acquiring and adding to confidential information of a special and unique nature and value relating to the Company and its strategic plan and financial operations. The Executive further recognizes and acknowledges that all confidential information is the exclusive property of the Company, is material and confidential, and is critical to the successful conduct of the business of the Company. Accordingly, the Executive hereby covenants and agrees that he will use confidential information for the benefit of the Company only and shall not at any time, directly or indirectly, during the term of this Agreement and thereafter divulge, reveal or communicate any confidential information to any person, firm, corporation or entity whatsoever, or use any confidential information for his own benefit or for the benefit of others. Notwithstanding the foregoing, the Executive shall be authorized to disclose confidential information (i) as may be required by law or legal process after providing the Company with prior written notice and an opportunity to respond to such disclosure (unless such notice is prohibited by law), (ii) in any criminal proceeding against him after providing the Company with prior written notice [and an opportunity to seek protection for such confidential information] and (iii) with the prior written consent of the Company. d. Survival. Any termination of this Agreement (or breach of this Agreement by the Executive or the Company) shall have no effect on the continuing operation of this Section 13. e. Validity. The terms and provisions of this Section 14 are intended to be separate and divisible provisions and if, for any reason, any one or more of them is held to be invalid or unenforceable, neither the validity nor the enforceability of any other provision of this Agreement shall thereby be affected. The parties hereto acknowledge that the potential restrictions on the Executive's future employment imposed by this Section 14 are reasonable in both duration and geographic scope and in all other respects. If for any reason any court of competent jurisdiction shall find any provisions of this Section 14 unreasonable in duration or geographic scope or otherwise, the Executive and the Company agree that the restrictions and prohibitions contained herein shall be effective to the fullest extent allowed under applicable law in such jurisdiction. f. Consideration. The parties acknowledge that this Agreement would not have been entered into and the benefits described in Section 3 or 4 would not have been promised in the absence of the Executive's promises under this Section 14. 15. The Executive represents and warrants that Commonwealth advised him in writing to consult with an attorney prior to executing this Agreement and that he was given the opportunity to consult with an attorney. The Executive further represents and warrants that Commonwealth provided him a period of at least twenty one (21) days in which to consider this Agreement before executing this Agreement, and that Commonwealth apprised him of eligibility factors for receiving the Severance Benefits and any applicable time limits. 16. Commonwealth and the Executive agree that, for a period of seven (7) days following the execution of this Agreement, the Executive has the right to revoke this Agreement, and Commonwealth and the Executive further agree that this Agreement shall not become effective or enforceable until the revocation period of seven (7) days has expired. 17. The Executive agrees that if he executes this Agreement at any time prior to the end of the period that Commonwealth provided him in which to consider this Agreement, such early execution was a knowing and voluntary waiver of his right to consider this Agreement for at least twenty one (21) days, and was due to his desire to immediately receive consideration provided hereunder and his belief that he had ample time in which to consider and understand this Agreement, and in which to review this Agreement with an attorney. 18. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contemporaneous, oral or written agreements or understandings between the parties. No representation, promise, inducement or statement of intention has been made by the Released Parties that is not embodied in this Agreement. No party shall be bound by or liable for any alleged representation, promise, inducement, or statement of intention not contained in this Agreement. This Agreement cannot be amended, modified, or supplemented in any respect except by subsequent written agreement signed by all parties hereto. 19. Employee agrees to indemnify and hold the Released Parties harmless from and against any and all loss, cost, damage, or expense, including, but not limited to, reasonable attorneys' fees, incurred by the Released Parties arising out of any action at law or equity, or any other proceeding, they find necessary to enforce any of the terms, covenants or conditions of the Agreement or due to a breach of this Agreement by Employee. In the event a court determines that Employee has breached this Agreement, specifically including (but not limited to) reinstating or instituting any legal or administrative proceeding against the Released Parties in violation of any provision of this Agreement (other than proceedings brought pursuant to the ADEA), Employee specifically acknowledges that he will return to Commonwealth: (i) the Severance Benefit, less $500; and (ii) any recovery Employee obtains as a result of legal or administrative proceedings brought against the Released Parties in violation of this Agreement. 20. The Released Parties will have all of the rights and remedies available at law and equity to enforce their rights under this Agreement. Should it be held at any time by a court of competent jurisdiction that any of the obligations, covenants or agreements set forth in this Agreement are illegal, invalid or unenforceable, the validity of the remaining parts, terms, or provisions shall not be affected thereby and any illegal, invalid or unenforceable parts, terms or provisions shall be deemed not to be a part of this Agreement. 21. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Kentucky. Employee consents to the exclusive jurisdiction of courts located in Kentucky, agreeing to waive any argument of lack of personal jurisdiction or forum non-conveniens with respect to any claim or controversy arising out of or relating to this Agreement, Employee's employment with the Company, Employee's separation from that employment, and any other contact or communication involving Employee and the Company. 22. Unless the context otherwise requires, when used in this Agreement, the singular shall include the plural, the plural shall include the singular, and all nouns, pronouns and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, as the identity of the person or persons may require. PLEASE READ CAREFULLY I, MARK V. KAMINSKI, EXPRESSLY ACKNOWLEDGE, REPRESENT AND WARRANT THAT I HAVE CAREFULLY REVIEWED THIS AGREEMENT; THAT I FULLY UNDERSTAND THE TERMS, CONDITIONS AND SIGNIFICANCE OF THIS AGREEMENT; THAT I HAVE HAD AMPLE TIME TO CONSIDER THIS AGREEMENT; THAT THE COMPANY HAS ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT I HAVE HAD A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT WITH AN ATTORNEY AND HAVE DONE SO OR HAVE DECLINED TO DO SO; AND THAT I HAVE EXECUTED THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND WITH SUCH ADVICE FROM AN ATTORNEY AS I DEEMED APPROPRIATE. IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused this Agreement to be executed in its name and on its behalf, all as of the date first written above. EXECUTIVE /s/ Mark V. Kaminski --------------------------------- Mark V. Kaminski Commonwealth Industries, Inc. By: /s/ Lenna Ruth Macdonald Name: Lenna Ruth Macdonald Title: Vice President, General Counsel and Secretary EX-99 3 jb8k61404ex992.txt EXHIBIT 99.2 Exhibit 99.2 ------------ June 10, 2004 Mr. Steven J, Demetriou 8950 Antelope Run Russell, OH 44072 Dear Steve: On behalf of Commonwealth Industries, Inc. ("CII"), I am pleased to confirm our offer to you of the position of President and Chief Executive Officer of Commonwealth Industries, Inc., effective as of June 11, 2004, on the terms outlined on the attached compensation proposal. We are very pleased you will be joining CII and will participate in our very exciting future developments. CII will issue a press release regarding your election as of June 11, 2004 (a copy of which is attached). Steve, I am very happy you have told me that you will accept our offer. Please sign below to acknowledge your understanding and acceptance of the attached compensation proposal and sign the attached severance agreement. Please keep a copy of each document for yourself and return the originals to Lenna Ruth Macdonald. If you have questions please contact either one of us. Sincerely, /s/ Paul E. Lego ------------------------ Chairman of the Board of Directors of Commonwealth Industries, Inc. /s/ Catherine G. Burke ----------------------- Chairman of the MD&C Committee of the Board of Directors Accepted this 11 day of June, 2004. /s/ Steven J. Demetriou - ----------------------- Commonwealth Industries, Inc. President and Chief Executive Officer Compensation Proposal June 10, 2004 Position o Appointed President and Chief Executive Officer of Commonwealth Industries, Inc. (together with its successors, including if applicable any successor by merger or parent company, "CII" or the "Company"). o Duties commensurate with such position. Base Salary o Initially, $800,000 per annum (payable according to the Company's normal payroll practices. o Subject to review by the MD&C Committee in the first quarter of 2005 and annually thereafter. o Review to be based on metrics and goals defined by the MD&C as part of the annual business planning process. Bonus Opportunity o Target bonus of 100% of base salary. o Maximum bonus of 200% of base salary. o Bonus opportunity for 2004 based on achievement of a short list of critical performance metrics defined by the Board of Directors including development of a team of "A" rated talent, identifying and implementing a plan for growth and improving underlying profitability, and solidifying the organization. o Earned bonus for calendar 2004 to be pro-rated for the period extending from initial hiring to 12/31/04 subject to the MD&C Committee evaluation of performance. President and Chief Executive Officer Compensation Proposal June 11, 2004 Page Two Equity Participation o Eligible for grants on same basis as other senior executives as part of stock option program to be developed by the MD&C Committee and the Board of Directors and submitted for shareholder approval. o Initial grant of 200,000 CII stock options to be granted upon joining CII as President and Chief Executive Officer, subject to customary vesting (three-year cliff vesting from date of grant). o Initial grant of 50,000 restricted shares of CII, to vest one-third (rounded down) on first anniversary of employment, one-third on second anniversary, and the remainder on the third anniversary. o Initial grant of 50,000 restricted shares of CII with vesting conditioned upon achieving agreed upon performance goals determined by the Board of Directors to the extent goals are achieved at the end of the period ending 12/31/06. o Board-approved ownership guidelines to be developed. o Company will provide information on how to exercise options and will withhold applicable taxes at the minimum required rate. Severance Agreement o Upon termination of employment by the Company without Cause (absent a "change-in-control") eligible for two times base salary and target bonus then in effect, plus two years of continued health coverage (COBRA period to run concurrently). "Cause means (1) willful and continuing failure to perform duties of employment (2) gross misconduct, fraud or dishonesty involving the Company (3) breach of duty of loyalty to the Company, (4) impeding a Board of Directors investigation or (5) conviction of a felony. o Upon termination of employment by the Company after a change-in-control occurs, eligible for payment and benefits as provided for in the attached Severance Agreement, in lieu of the above, in addition to the other rights and obligations outlined therein. Perquisites o Perquisite program to be approved by the MD&C Committee. o Participation in all CII benefit programs initiated with full waiver of any and all required waiting periods. o Reimbursement of reasonable travel to and from Cleveland and reasonable living away from Cleveland until relocation occurs; in accordance with Company policy. o Relocation to be subject to a relocation package to be developed and approved by the MD&C committee, including home resale benefit if required (CII will offer to purchase home at its market value, as determined by a real estate appraiser selected by the Company. The Company's offer will remain open for 60 days). President and Chief Executive Officer Compensation Proposal June 11, 2004 Page Three o Payment of premiums, on an after tax basis, for those insurance policies listed on the attached schedule at the current levels (subject to such arrangement not constituting a prohibited loan under law or regulation). o Reimbursement of financial planning services up to $15,000 per year on an after-tax basis. General o Bonus and equity awards to be designed in a manner that is deductible under Section 162(m) of Internal Revenue Code and pursuant to a plan subject to shareholder approval. o Any successor to CII will assume the terms and conditions hereof. Attachment 1 EXECUTIVE INSURANCE DEMETRIOU Policy Face Annual Last Payment Number Value Premium Payment Due -------- ----------- --------- --------- ---------- First Colony Life Insurance 5799761 $1,200,000 $698.00 6/10/2003 6/28/2004 Guardian Life Insurance 4039656 $600,000 $4,181.00 9/17/2003 10/1/2004 Guardian Life Insurance 5090331 $1,200,000 $8,377.40 7/10/2003 7/13/2004 Transamerica Occidental Life Ins. 41681412 $600,000 $538.00 9/12/2003 10/9/2004 Chubb Group Excess Liability 11819881-07 $5,000,000 $628.00 11/5/2003 10/31/2004 EX-99 4 jb8k61404ex993.txt EXHIBIT 99.3 Exhibit 99.3 ------------ SEVERANCE AGREEMENT THIS AGREEMENT is entered into as of the 10th day of June, 2004 by and between Commonwealth Industries, Inc., a Delaware corporation (the "Company"), and Steven J. Demetriou ("Executive"). W I T N E S S E T H WHEREAS, Executive has recently been hired as Chief Executive Officer of the Company and his services and knowledge are valuable to the Company in connection with the management of the Company. WHEREAS, the Board (as defined in Section 1) has determined that it is in the best interests of the Company and its stockholders to secure Executive's continued services and to ensure Executive's continued and undivided dedication in the event of any threat or occurrence of, or negotiation or other action that could lead to, or create the possibility of, a Change in Control (as defined in Section 1) of the Company, the Board has authorized the Company to enter into this Agreement. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements herein contained, the Company and Executive hereby agree as follows: 1. Definitions. As used in this Agreement, the following terms shall have the respective meanings set forth below: (a) "Board" means the Board of Directors of the Company. (b) "Cause" means (1) a material breach by Executive of the duties and responsibilities of Executive (other than as a result of incapacity due to physical or mental illness) which is (x) demonstrably willful and deliberate on Executive's part, (y) committed in bad faith or without reasonable belief that such breach is in the best interests of the Company and (z) not remedied in a reasonable period of time after receipt of written notice from the Company specifying such breach or (2) the Executive's conviction of, or plea of nolo contendere to, a felony involving moral turpitude. Cause shall not exist unless and until the Company has delivered to Executive a copy of a resolution duly adopted by a majority of the entire Board at any duly called meeting of the Board (after reasonable notice to Executive and an opportunity for Executive, together with counsel, to be heard before the Board), finding that in the good faith opinion of the Board an event set forth in clauses (1) or (2) has occurred and specifying the particulars thereof in detail. The Company must notify Executive of any event constituting Cause within ninety (90) days following the Board's knowledge of its existence or such event shall not constitute Cause under this Agreement. (c) "Change in Control" means the occurrence of any one of the following events: (i) any "person" (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange Act") and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company's then outstanding securities eligible to vote for the election of the Board (the "Company Voting Securities"); provided, however, that the event described in this paragraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (A) by the Company or any Subsidiary, (B) by any employee benefit plan sponsored or maintained by the Company or any Subsidiary, (C) by any underwriter temporarily holding securities pursuant to an offering of such securities, (D) pursuant to a Non-Control Transaction (as defined in paragraph (iii)), (E) pursuant to any acquisition by Executive or any group of persons including Executive; or (F) a transaction (other than one described in (iii) below) in which Company Voting Securities are acquired from the Company, if a majority of the Incumbent Board (as defined below) approves a resolution providing expressly that the acquisition pursuant to this clause (F) does not constitute a Change in Control under this paragraph (i); (ii) individuals who, on January 25, 1996, constitute the Board (the "Incumbent Board") cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to January 25, 1996, whose election or nomination for election was approved by a vote of at least two-thirds of the directors comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without objection to such nomination) shall be considered a member of the Incumbent Board; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest with respect to directors or any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board of Directors shall be deemed to be a member of the Incumbent Board; (iii) the consummation of a merger, consolidation, share exchange or similar form of corporate reorganization of the Company or any such type of transaction involving the Company or any of its Subsidiaries that requires the approval of the Company's stockholders (whether for such transaction or the issuance of securities in the transaction or otherwise), or the consummation of the direct or indirect sale or other disposition of all or substantially all of the assets, of the Company and its Subsidiaries (a "Business Combination"), unless immediately following such Business Combination: (A) more than 60% of the total voting power of the publicly traded corporation resulting from such Business Combination (including, without limitation, any corporation which directly or indirectly has beneficial ownership of 100% of the Company Voting Securities or all or substantially all of the assets of the Company and its Subsidiaries) eligible to elect directors of such corporation is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such voting power is in substantially the same proportion as the voting power of such Company Voting Securities immediately prior to the Business Combination, (B) no person (other than any publicly traded holding company resulting from such Business Combination, any employee benefit plan sponsored or maintained by the Company (or the corporation resulting from such Business Combination), or any person which beneficially owned, immediately prior to such Business Combination, directly or indirectly, 20% or more of the Company Voting Securities (a "Company 20% Stockholder")) becomes the beneficial owner, directly or indirectly, of 20% or more of the total voting power of the outstanding voting securities eligible to elect directors of the corporation resulting from such Business Combination and no Company 20% Stockholder increases its percentage of such total voting power, and (C) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the Board's approval of the execution of the initial agreement providing for such Business Combination (a "Non-Control Transaction"); or (iv) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership of more than 20% of the Company Voting Securities as a result of the acquisition of Company Voting Securities by the Company which, by reducing the number of Company Voting Securities outstanding, increases the percentage of shares beneficially owned by such person; provided, that if a Change in Control of the Company would occur as a result of such an acquisition by the Company (if not for the operation of this sentence), and after the Company's acquisition such person becomes the beneficial owner of additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, then a Change in Control of the Company shall occur. Notwithstanding anything in this Agreement to the contrary, (1) if Executive's employment is terminated prior to a Change in Control, and Executive reasonably demonstrates that such termination was at the request of a third party who has indicated an intention or taken steps reasonably calculated to effect a Change in Control (a "Third Party") and who effectuates a Change in Control, then for all purposes of this Agreement, the date of a Change in Control shall mean the date immediately prior to the date of such termination of employment and (2) the Executive and the Company may agree in writing that a particular corporate transaction shall not constitute a Change in Control for purposes of this Agreement. (d) "Date of Termination" means (1) the effective date on which Executive's employment by the Company terminates as specified in a prior written notice by the Company or Executive, as the case may be, to the other, delivered pursuant to Section 10 or (2) if Executive's employment by the Company terminates by reason of death, the date of death of Executive. (e) "Good Reason" means, without Executive's express written consent, the occurrence of any of the following events after a Change in Control: (1) (i) the assignment to Executive of any duties or responsibilities inconsistent in any adverse respect with Executive's position(s), duties, responsibilities or status with the Company immediately prior to such Change in Control (including any dimunition of such duties or responsibilities) or (ii) an adverse change in Executive's reporting responsibilities, titles or offices with the Company as in effect immediately prior to such Change in Control; (2) a reduction by the Company in Executive's rate of annual base salary or annual target bonus opportunity (including any adverse change in the formula for such annual bonus target) as in effect immediately prior to such Change in Control or as the same may be increased from time to time thereafter; (3) the failure of the Company to (i) continue in effect any employee benefit plan or compensation plan in which Executive is participating immediately prior to such Change in Control, unless Executive is permitted to participate in other plans providing Executive with substantially comparable benefits, or the taking of any action by the Company which would adversely affect Executive's participation in or reduce Executive's benefits under any such plan, (ii) provide Executive and Executive's dependents with welfare benefits in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for Executive and Executive's dependents immediately prior to such Change in Control or provide substantially comparable benefits at a substantially comparable cost to Executive, (iii) provide fringe benefits in accordance with the most favorable plans, practices, programs and policies of the Company and its affiliated companies in effect for Executive immediately prior to such Change in Control, or provide substantially comparable fringe benefits, or (iv) provide Executive with paid vacation in accordance with the most favorable plans, policies, programs and practices of the Company and its affiliated companies as in effect for Executive immediately prior to such Change in Control; (4) the failure of the Company to obtain the assumption agreement from any successor as contemplated in Section 9(b); or (5) termination by Executive for any reason during the "Window Period" (as defined below). Any event described in this Section 1(e)(1) through (4) which occurs prior to a Change in Control, but was at the request of a Third Party who effectuates a Change in Control, shall constitute Good Reason following a Change in Control for purposes of this Agreement (treating the date of such event as the date of the Change in Control) notwithstanding that it occurred prior to the Change in Control. For purposes of this Agreement, any good faith determination of Good Reason made by Executive shall be conclusive; provided, however, that an isolated, insubstantial and inadvertent action taken in good faith and which is remedied by the Company promptly after receipt of notice thereof given by Executive shall not constitute Good Reason. Executive must provide notice of termination of employment within ninety (90) days of Executive's knowledge of an event constituting Good Reason or such event shall not constitute Good Reason under this Agreement. (f) "Nonqualifying Termination" means a termination of Executive's employment (1) by the Company for Cause, (2) by Executive for any reason other than Good Reason, (3) as a result of Executive's death, (4) by the Company due to Executive's absence from Executive's duties with the Company on a full-time basis for at least one hundred eighty (180) consecutive days as a result of Executive's incapacity due to physical or mental illness or (5) as a result of Executive's retirement (not including any early retirement) in accordance with the Company's retirement policy generally applicable to its salaried employees, as in effect immediately prior to the Change in Control, or in accordance with any retirement arrangement established with respect to Executive with Executive's written consent. (g) "Subsidiary" means any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total combined voting power of the then outstanding securities of such corporation or other entity entitled to vote generally in the election of directors or in which the Company has the right to receive 50% or more of the distribution of profits or 50% of the assets or liquidation or dissolution. (h) "Termination Period" means the period of time beginning with a Change in Control and ending two (2) years following such Change in Control. (i) "Window Period" means the 30-day period commencing one (1) year after the date of a Change in Control. 2. Obligations of Executive. Executive agrees that if a Change in Control shall occur, Executive shall not voluntarily leave the employ of the Company without Good Reason until ninety (90) days following such Change in Control. 3. Payments Upon Termination of Employment. (a) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, as compensation for services rendered to the Company: (1) a lump-sum cash amount equal to the sum of (i) Executive's base salary through the Date of Termination, to the extent not theretofore paid, (ii) a pro rata portion of Executive's annual bonus in an amount at least equal to (A) the greater of (1) Executive's target bonus for the fiscal year in which the Change in Control occurs and (2) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs, multiplied by (B) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. (2) a lump-sum cash amount equal to (i) three (3) times Executive's highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) three (3) times the greatest of (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs or (B) Executive's target bonus for the fiscal year in which the Change in Control occurs or (C) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs. Any amount paid pursuant to this Section 3(a)(2) shall reduce any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy or employment agreement of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of three (3) years following the Date of Termination, Executive (and Executive's dependents if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including cost of coverage to Executive) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. (c) If during the Termination Period the employment of Executive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination, a cash amount equal to the sum of (1) Executive's base salary through the Date of Termination, to the extent not theretofore paid, and (2) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. The Company may make such additional payments, and provide such additional benefits, to Executive as the Company and Executive may agree in writing. 4. Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company or its affiliated companies to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes) including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax, imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-up Payment is to be made and applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (b) Subject to the provisions of Section 4(a), all determinations required to be made under this Section 4, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment under this Section 4 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. 5. Withholding Taxes. The Company may withhold from all payments due to Executive (or his beneficiary or estate) hereunder all taxes which, by applicable federal, state, local or other law, the Company is required to withhold therefrom. 6. Reimbursement of Expenses. If any contest or dispute shall arise under this Agreement involving termination of Executive's employment with the Company or involving the failure or refusal of the Company to perform fully in accordance with the terms hereof, the Company shall reimburse Executive, on a current basis, for all legal fees and expenses, if any, incurred by Executive in connection with such contest or dispute (regardless of the result thereof), together with interest in an amount equal to the prime rate of Citibank N.A. from time to time in effect, but in no event higher than the maximum legal rate permissible under applicable law, such interest to accrue from the date the Company receives Executive's statement for such fees and expenses through the date of payment thereof. 7. Termination of Agreement. This Agreement shall be effective on the date hereof and shall terminate upon one year after the date of any written notification from the Company to Executive terminating this Agreement; provided, however, that this Agreement shall continue in effect following any Change in Control which occurs prior to such termination with respect to all rights and obligations accruing as a result of such Change in Control. 8. Scope of Agreement. Nothing in this Agreement shall be deemed to entitle Executive to continued employment with the Company or its Subsidiaries, and if Executive's employment with the Company shall terminate prior to a Change in Control or following the end of the Termination Period, Executive shall have no further rights under this Agreement. 9. Successors; Binding Agreement. (a) This Agreement shall not be terminated by any Business Combination. In the event of any Business Combination, the provisions of this Agreement shall be binding upon the surviving or resulting corporation or the person or entity to which such assets are transferred. (b) The Company agrees that concurrently with any Business Combination that does not constitute a Non-Control Transaction, it will cause any successor or transferee unconditionally to assume, by written instrument delivered to Executive (or his beneficiary or estate), all of the obligations of the Company hereunder. Failure of the Company to obtain such assumption prior to the effectiveness of any such Business Combination, shall be a breach of this Agreement and shall constitute Good Reason hereunder and shall entitle Executive to compensation and other benefits from the Company in the same amount and on the same terms as Executive would be entitled hereunder if Executive's employment were terminated following a Change in Control other than by reason of a Nonqualifying Termination. For purposes of implementing the foregoing, the date on which any such Business Combination becomes effective shall be deemed the date Good Reason occurs, and shall be the Date of Termination if requested by Executive. (c) This Agreement shall inure to the benefit of and be enforceable by Executive's personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If Executive shall die while any amounts would be payable to Executive hereunder had Executive continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person or persons appointed in writing by Executive to receive such amounts or, if no person is so appointed, to Executive's estate. 10. Notice. (a) For purposes of this Agreement, all notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered or five (5) days after deposit in the United States mail, certified and return receipt requested, postage prepaid, addressed as follows: If to the Executive: ___________________ ___________________ ___________________ If to the Company: Commonwealth Industries, Inc. PNC Building, 19th Floor 500 West Jefferson Street Louisville, KY 40202 Att: Corporate Secretary or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt. (b) A written notice of Executive's Date of Termination by the Company or Executive, as the case may be, to the other, shall (i) indicate the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Executive's employment under the provision so indicated and (iii) specify the termination date (which date shall be not less than fifteen (15) nor more than sixty (60) days after the giving of such notice). The failure by Executive or the Company to set forth in such notice any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Executive or the Company hereunder or preclude Executive or the Company from asserting such fact or circumstance in enforcing Executive's or the Company's rights hereunder. 11. Full Settlement; Resolution of Disputes. The Company's obligation to make any payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which the Company may have against Executive or others. In no event shall Executive be obligated to seek other employment or take other action by way of mitigation of the amounts payable to Executive under any of the provisions of this Agreement and, except as provided in Section 3(b)(3), such amounts shall not be reduced whether or not Executive obtains other employment. 12. Employment with Subsidiaries. Employment with the Company for purposes of this Agreement shall include employment with any Subsidiary. 13. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE PRINCIPLE OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN FULL FORCE AND EFFECT. 14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. 15. Miscellaneous. No provision of this Agreement may be modified or waived unless such modification or waiver is agreed to in writing and signed by Executive and by a duly authorized officer of the Company. No waiver by either party hereto at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. Failure by Executive or the Company to insist upon strict compliance with any provision of this Agreement or to assert any right Executive or the Company may have hereunder, including without limitation, the right of Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such provision or right or any other provision or right of this Agreement. Except as otherwise specifically provided herein, the rights of, and benefits payable to, Executive, his estate or his beneficiaries pursuant to this Agreement are in addition to any rights of, or benefits payable to, Executive, his estate or his beneficiaries under any other employee benefit plan or compensation program of the Company. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly authorized officer of the Company and Executive has executed this Agreement as of the day and year first above written. COMMONWEALTH INDUSTRIES, INC. /s/ Lenna Ruth Macdonald -------------------- [COMPANY OFFICER] /s/ Steven J. Demetriou ------------------------ [EXECUTIVE] EX-99 5 jb8k61404ex994.txt EXHIBIT 99.4 Exhibit 99.4 ------------ Contact: Kim S. Knotts Director of Investor Relations (502) 588-8207 COMMONWEALTH INDUSTRIES' BOARD OF DIRECTORS APPOINTS NEW PRESIDENT AND CHIEF EXECUTIVE OFFICER LOUISVILLE, KENTUCKY (June 11, 2004) - Commonwealth Industries, Inc. (NASDAQ: CMIN) announced that its board of directors has elected Steven J. Demetriou as president and chief executive officer of the Company effective June 11, 2004. Mr. Demetriou, who currently serves on Commonwealth's board of directors, will succeed Mark V. Kaminski, the Company's current president and CEO. With a solid track record of successfully leading companies, Mr. Demetriou has been the president and CEO of Noveon, a leading global producer of advanced specialty chemicals for a broad range of consumer and industrial applications, since 2001. Previously, he was the executive vice president of IMC Global Inc. and president of IMC Crop Nutrients from 1999 to 2001. Mr. Demetriou also served in a number of leadership positions with Cytec Industries Inc. from 1997 to 1999. From 1981 to 1997, he held various positions with Exxon Corporation. "Steve's strong management experience will help shape Commonwealth as we continue to focus on our core competencies," said Chairman of the Board Paul E. Lego. "His vision for the future of the Company complements the efforts we have been making in defining a leadership position for Commonwealth in the materials recycling and aluminum sheet business. With continued emphasis on developing creative solutions and new products for our customers, I believe that Commonwealth will extend its strong market share and brand equity." Commenting on his election, Commonwealth's new president and CEO stated, "I am very excited about the opportunity to take a more active leadership role in the company. I believe that Commonwealth's competitive product portfolio, excellent customer base, efficient distribution channels and exceptional employees are all factors that will enable us to realize the value of the investments that have been made in the Company." Mark Kaminski said, "I have decided to explore other opportunities that will capitalize on my 30 years of business experience, 17 of which have been with CII, and will further my personal interests in charitable and academic endeavors. I thank Commonwealth's directors, management and employees for their efforts and contributions during my tenure here, and wish them continued success in the future." Chairman of the Board Paul Lego further commented, "The board of directors and Mark will ensure a smooth executive transition. We would like to acknowledge Mark's executive leadership over the past 17 years and wish him well in the future." Commonwealth Industries is one of North America's leading manufacturers of aluminum sheet for distributors and the transportation, construction, and consumer durables end-use markets. The Company has direct-chill casting facilities in Kentucky and continuous casting mini-mills in Ohio and California. Commonwealth also is a leading manufacturer of innovative electrical products through its Alflex operations in California and North Carolina. For more information about the Company, visit Commonwealth's website at www.ciionline.com. Certain statements set forth above may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. All statements regarding the consummation of the closing of the sale of Alflex and the Company's and its subsidiaries' expected future financial position, results of operations, cash flows, dividends, financing plans, business strategy, budgets, projected costs, capital expenditures, competitive position and growth opportunities are forward-looking statements. Such forward-looking statements are based on management's current expectations and include known and unknown risks, uncertainties and other factors, many of which the Company is unable to predict or control, that may cause the Company's actual results or performance to materially differ from any future results or performance expressed or implied by such statements. Such factors may include, without limitation, the ability to close the stock purchase agreement for the sale of Alflex while obtaining the approval of the regulatory agencies, the success of the implementation of the Company-wide information system, the effect of global economic conditions, the ability to achieve the level of cost savings or productivity improvements anticipated by management, the effect (including possible increases in the cost of doing business) resulting from war or terrorist activities or political uncertainties, the ability to successfully implement new marketing and sales strategies, the impact of competitive products and pricing, product development and commercialization, availability and cost of critical raw materials, the ability to effectively hedge the cost of raw materials, capacity and supply constraints or difficulties, the success of the Company in implementing its business strategy, and other risks as detailed in the Company's various filings with the Securities and Exchange Commission. -----END PRIVACY-ENHANCED MESSAGE-----