Exhibit 99.1
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SEPARATION AGREEMENT
This Agreement dated as of June 10, 2004 is by and between Commonwealth
Industries, Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxx
(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 X.X.X.xx. 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. xx.xx. 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, XXXX X. XXXXXXXX, 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/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Commonwealth Industries, Inc.
By: /s/ Xxxxx Xxxx Xxxxxxxxx
Name: Xxxxx Xxxx Xxxxxxxxx
Title: Vice President, General
Counsel and Secretary
