AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 8, 1997
REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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COMMONWEALTH ALUMINUM CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3245741
(State or other (I.R.S. Employer
jurisdiction of Identification Number)
incorporation or
organization)
1200 MEIDINGER TOWER
LOUISVILLE, KENTUCKY 40202
(502) 589-8100
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
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1995 STOCK INCENTIVE PLAN
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Mark V. Kaminski
President and Chief Executive Officer
Commonwealth Aluminum Corporation
1200 Meidinger Tower
Louisville, Kentucky 40202
(502) 589-8100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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copy to:
John Merow
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of each class offering aggregate Amount of
of securities Amount to be price per offering registration
to be registered registered unit(1) price(1) fee
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Common Stock, $0.01 500,000 shares $15.438 $7,718,750 $2,340
par value
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
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<PAGE>
This is a registration of additional securities of the same class as
other securities for which a registration statement filed on this form relating
to an employee benefit plan has become effective. The contents of the earlier
registration statement, File No. 33-91364, are incorporated herein by reference.
EXHIBITS
Exhibit No. Description
5 Opinion and consent of Sullivan & Cromwell regarding the
validity of the securities registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (set forth on the signature page of the
registration statement).
99.1 Commonwealth Aluminum Corporation 1995 Stock Option Plan
as Amended and Restated on October 21, 1996.
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<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Louisville, Kentucky on December 9, 1996.
Commonwealth Aluminum Corporation
By: /s/ Mark V. Kaminski
Mark V. Kaminski
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark V. Kaminski and Donald L. Marsh, Jr.
his true and lawful attorney-in-fact and agents, each acting alone, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments to this
Registration Statement, including post- effective amendments, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, and hereby ratifies and confirms
all his said attorneys-in-fact and agents, each acting alone, or his substitute
or substitutes may lawfully do or cause to be done by virtue thereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on December 9, 1996.
SIGNATURE TITLE
/s/ Mark V. Kaminski President, Chief Executive
Mark V. Kaminski Officer and Director
(Principal Executive Officer)
/s/ Paul E. Lego Chairman of the Board
Paul E. Lego
/s/ Donald L. Marsh, Jr. Executive Vice President, Chief
Donald L. Marsh, Jr. Financial Officer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Catherine G. Burke Director
Catherine G. Burke
/s/ Victor Torasso Director
Victor Torasso
/s/ John Merow Director
John Merow
_______________________ Director
Fred C. Fetterolf
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<PAGE>
Index to Exhibits
Exhibit No. Description Sequentially
Numbered Page
5 Opinion and consent of Sullivan & Cromwell
regarding the validity of the securities
registered.......................................
23.1 Consent of Coopers & Lybrand L.L.P...............
23.2 Consent of Ernst & Young LLP.....................
24 Powers of Attorney (set forth on signature
page of this Registration Statement).............
99.1 Commonwealth Aluminum Corporation 1995
Stock Incentive Plan As Amended and Restated
on October 21, 1996..............................
SULLIVAN & CROMWELL
125 Broad Street
New York, NY 10004-2498
Telephone: (212) 558-4000
Telex: 62694
Facsimile: (212) 558-3588
(212) 514-5706
January 7, 1997
Commonwealth Aluminum Corporation,
1200 Meidinger Tower,
Louisville, Kentucky 40202.
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of 500,000 shares (the "Securities") of Common Stock, par value $.01
per share, of Commonwealth Aluminum Corporation, a Delaware corporation (the
"Company") offered or to be offered to certain officers and directors pursuant
to the Company's 1995 Stock Incentive Plan, we, as your counsel, have examined
such corporate records, certificates and other documents, and such questions of
law, as we have considered necessary or appropriate for the purposes of this
opinion. Upon the basis of such examination, we advise you that, in our opinion:
When the Registration Statement on Form S-8 (the "Registration
Statement") has become effective under the Act and the Securities to be sold by
the Company have been duly issued and sold as contemplated by the Registration
Statement, the Securities being sold by the Company will be validly issued,
fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of the
State of Delaware, and we are expressing no opinion as to the effect of the laws
of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
Sullivan & Cromwell
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration Statement of
Commonwealth Aluminum Corporation on Form S-8 of our report dated January 16,
1996, on our audits of the consolidated financial statements and the financial
statement schedule of Commonwealth Aluminum Corporation as of December 31, 1995
and 1994 and for the years ended December 31, 1995, 1994 and 1993.
COOPERS & LYBRAND L.L.P.
Louisville, Kentucky
January 7, 1997
We consent to the incorporation by reference in the Registration Statement (Form
S-8, No. 333-________) pertaining to the 1995 Stock Incentive Plan of
Commonwealth Aluminum Corporation of our report dated May 10, 1996, with respect
to the consolidated financial statements of CasTech Aluminum Group Inc. included
in the Current Report (Form 8-K) of Commonwealth Aluminum Corporation filed
September 26, 1996 with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Akron, Ohio
January 6, 1997
COMMONWEALTH ALUMINUM CORPORATION
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1995 Stock Incentive Plan
As Amended and Restated on October 21, 1996
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1. General. Pursuant to the terms and conditions of the Commonwealth
Aluminum Corporation 1995 Stock Incentive Plan (the "Plan") hereinafter set
forth, the Committee specified in Section 2 from time to time may grant or award
to eligible employees (a) options to purchase shares of the Common Stock, par
value $.01 per share ("Common Stock"), of Commonwealth Aluminum Corporation (the
"Corporation") and (b) restricted Common Stock. Options to purchase Common Stock
may also be granted to non-employee directors of the Corporation in accordance
with Section 16 of the Plan.
The purpose of the Plan is to enhance the ability of the Corporation
and its subsidiaries to attract and retain employees and directors of
outstanding ability and to provide employees and directors with an interest in
the Corporation parallel to that of the Corporation's stockholders.
2. Administration. The Plan shall be administered by the Management
Development and Compensation Committee of the Board of Directors (the "Board")
of the Corporation, or any successor committee appointed by the Board (the
"Committee"); which Committee shall at all times consist of two or more
directors, each of whom is a "Non-Employee Director" within the meaning of Rule
16b-3 under the Securities Exchange Act of 1934 (the "Exchange Act").
The Committee shall have full and final authority, in each case subject
to and consistent with the provisions of the Plan, to select employees of the
Corporation or its subsidiaries who are to receive grants or awards
<PAGE>
("Participants"), to make grants and awards, to determine the type, number and
other terms and conditions of, and all matters relating to, grants and awards,
to prescribe grant and award agreements and rules and regulations for the
administration of the Plan and such agreements, to construe and interpret the
Plan and grant and award agreements and to correct defects, supply omissions or
reconcile inconsistencies therein, and to make all other decisions and
determinations as the Committee may deem necessary or advisable for the
administration of the Plan.
Any action of the Committee shall be final, conclusive and binding on
all persons, including the Corporation and its subsidiaries and stockholders,
Participants and persons claiming rights from or through a Participant.
The Committee may delegate to officers or managers of the Corporation
or any subsidiary, or committees thereof, and to service providers, the
authority, subject to such terms as the Committee shall determine, to perform
administrative functions with respect to the Plan and grant and award
agreements.
The Committee and each member thereof shall be entitled to, in good
faith, rely or act upon any report or other information furnished to the
Committee by any officer or employee of the Corporation or a subsidiary, the
Corporation's independent public accountants or any other adviser, consultant or
service provider assisting in the administration of the Plan. Members of the
Committee and any officer or employee of the Corporation or a subsidiary acting
at the direction of, or on behalf of, the Committee shall not be personally
liable for any action or determination taken or made in good faith with respect
to the Plan, and shall, to the extent permitted by law, be
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<PAGE>
fully indemnified by the Corporation with respect to any such action or
determination.
3. Eligibility. Individuals eligible to receive awards under the Plan
shall be the officers and other key employees of the Corporation and its
subsidiaries selected by the Committee and all non-employee directors. However,
except as provided in Section 16 hereof, no grant or award shall be made to a
director who is not an employee of the Corporation or its subsidiaries.
4. Shares Subject to the Plan. The total of the number of shares of
Common Stock which may be acquired upon the exercise of options granted under
the Plan and the number of shares of Common Stock awarded as restricted Common
Stock under the Plan shall not exceed 600,000; provided, that for purposes of
this limitation any option which is cancelled or expires without exercise, and
any restricted Common Stock which is forfeited to the Corporation pursuant to
the terms of the award thereof, shall thereafter be deemed not to have been
granted or awarded. No employee shall be granted in any calendar year options to
purchase more than 100,000 shares of Common Stock. Shares of Common Stock
available for issue or distribution under the Plan shall be authorized and
unissued shares or shares acquired by the Corporation and held in treasury.
5. Stock Options. The Committee from time to time may grant options
under the Plan to eligible employees. The options may be either incentive stock
options within the meaning of Section 422 of the Internal Revenue Code of 1986,
or nonqualified stock options.
The Committee shall establish the option price at the time each option
is granted. The option price shall be not less than the fair market value of the
Common Stock on the date of grant.
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<PAGE>
Unless otherwise determined by the Committee, the fair market value of
the Common Stock, as used in this Section 5 and elsewhere in the Plan, as of any
given date shall be the mean between the highest and lowest reported sales
prices on that date of the Common Stock on the New York Stock Exchange Composite
Tape or, if not listed on such exchange, on any other national securities
exchange on which the Common Stock is listed or on NASDAQ, or, if no Common
Stock was traded on that date, on the next preceding day on which there was such
a trade.
Except as otherwise provided herein, options granted shall be
exercisable at such time or times and subject to such terms and conditions as
shall be determined by the Committee, but in no event may options be exercisable
for a period of more than 10 years after their date of grant. The Committee may
alter or waive, at any time, any term or condition of an option that is not
mandatory under the Plan.
The option price of each share as to which a stock option is exercised
shall be paid in full at the time of such exercise. The payment shall be made
(a) in cash, or (b) by surrender of shares of Common Stock owned by the holder
of the option for at least six months prior to exercise of the stock option
valued at fair market value as of the date of exercise, or (c) through
simultaneous sale through a broker of shares acquired on exercise, as permitted
under Regulation T of the Federal Reserve Board, or by a combination thereof.
No holder of an option granted under the Plan shall be entitled to any
of the rights of a shareholder of the Corporation in respect of any shares
covered by such
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<PAGE>
option until certificates representing such shares have been issued to such
holder.
No option may be transferred except by will or the laws of descent and
distribution, provided that the Committee may grant options that are
transferable by the optionee without payment of consideration to immediate
family members of the optionee or to trusts or partnerships for such family
members and may alter outstanding options to provide for such transferability.
Such transferees may transfer an option only by will or the laws of descent and
distribution. Options shall be exercisable only by the holders thereof.
6. Restricted Common Stock. The Committee from time to time may award
to eligible employees restricted Common Stock. The employment conditions and the
length of the period for vesting of restricted Common Stock shall be established
by the Committee at the time of award, except that each restriction period shall
not be less than 12 months.
Except as restricted under the terms of the Plan and any agreement
related to the restricted Common Stock, a Participant awarded restricted Common
Stock shall have all the rights of a stockholder including, without limitation,
the right to vote restricted Common Stock.
If a stock certificate is issued in respect of shares of restricted
Common Stock, the certificate shall be registered in the name of the Participant
but shall be held by the Corporation for the account of the employee until the
end of the restriction period.
7. Change in Control. In the event of a Change in Control, as hereafter
defined:
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<PAGE>
(a) Any option outstanding as of the date such Change in Control is
determined to have occurred and not then exercisable in full shall become fully
exercisable; and
(b) The restrictions applicable to all shares of restricted Common
Stock shall lapse and such shares shall be deemed fully vested.
A "Change in Control" shall mean the happening of any of the following
events:
(a) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of 20% or more of the then outstanding shares of Common Stock, other than any
acquisition directly from the Corporation, any acquisition by the Corporation, a
subsidiary of the Corporation or an employee benefit plan of the Corporation, or
any acquisition by any Person pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of clause (c) of this definition;
(b) A change in the composition of the Board such that during any
period of two consecutive years beginning after the effective date of the Plan,
individuals who at the beginning of such period constitute the Board together
with those individuals who first became directors during such period (other than
by reason of an agreement with the Corporation in settlement of a proxy contest
for the election of directors) and whose election or nomination for election to
the Board was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved (the
"Continuing Directors"), cease for any reason to constitute a majority of the
Board;
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<PAGE>
(c) The approval by the stockholders of the Corporation of a
reorganization, merger, consolidation, sale or disposition of all or
substantially all of the assets of the Corporation, or the consummation of any
such transaction if stockholder approval is not obtained, other than any such
transaction pursuant to which (i) the beneficial owners of the outstanding
Common Stock immediately prior to such transaction will beneficially own more
than 60% of the outstanding shares of common stock of the corporation resulting
from such transaction, (ii) no Person (other than the Corporation, a subsidiary
of the Corporation or an employee benefit plan of the Corporation) will
beneficially own more than 20% of the outstanding common stock of the
corporation resulting from such transaction except to the extent that such
ownership existed with respect to the Corporation prior to such transaction, and
(iii) individuals who are Continuing Directors will constitute at least a
majority of the members of the board of directors of the corporation resulting
from such transaction; or
(d) The approval by stockholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
8. Grant or Award Agreement. Each grant or award under the Plan shall
be evidenced by an agreement setting forth the terms and conditions, as
determined by the Committee, which shall apply to such grant or award, in
addition to the terms and conditions specified in the Plan.
9. Withholding Taxes. The Corporation shall have the right to deduct
from any payment to be made pursuant to the Plan, or to require prior to the
issuance or delivery of any shares of Common Stock or the payment of cash under
the Plan, any taxes required by law to be withheld therefrom. Such taxes may be
paid (a) in cash,
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<PAGE>
(b) by surrender of shares of Common Stock or (c) with shares of Common Stock
otherwise to be issued or delivered to the holder of the option or restricted
Common Stock, or by a combination thereof.
10. No Right to Employment. Nothing contained in the Plan or in any
grant of award under the Plan shall confer upon any employee any right with
respect to the continuation of employment with the Corporation or any of its
subsidiaries, or interfere in any way with the right of the Corporation to
terminate his or her employment at any time. Nor shall anything contained in the
Plan confer upon any employee or other person any claim or right to any grant or
award under the Plan.
11. Governmental Compliance. Each grant and award under the Plan shall
be subject to the requirement that if at any time the Committee shall determine
that the listing, registration or qualification of any shares issuable or
deliverable thereunder upon any securities exchange or under any federal or
state law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition thereof, or in connection therewith, no
such grant or award may be exercised or shares issued or delivered unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee.
12. Adjustments. In the event of any change in the outstanding shares
of Common Stock by reason of any stock dividend or split, recapitalization,
merger, consolidation, spinoff, combination or exchange of shares or other
corporate change, or any distribution to holders of Common Stock other than
regular cash dividends, the number or kind of shares available for options and
awards under the
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<PAGE>
Plan (including the calendar year limit on option grants) may be adjusted by the
Committee as it shall in its sole discretion deem equitable and the number and
kind of shares subject to any outstanding options granted under the Plan and the
purchase price thereof may be adjusted by the Committee as it shall in its sole
discretion deem equitable to preserve the value of such outstanding options.
13. Amendment. Subject to Section 16 hereof, the Board may amend,
suspend or terminate the Plan or any portion thereof at any time.
14. Governing Law. The Plan and any agreement evidencing a grant or
award shall be construed and its provisions enforced and administered in
accordance with the laws of the State of Delaware.
15. Effective Date. The Plan became effective on March 17, 1995.
Subject to earlier termination pursuant to Section 13, the Plan shall have a
term of 10 years from its effective date.
16. Director Stock Options. Nonqualified options to purchase 1,000
shares of Common Stock (2,500 shares in the case of a non-employee Chairman of
the Board) shall be granted automatically to each director of the Corporation
who is a director but is not an employee of the Corporation or its subsidiaries
on the date of grant (a) upon the date such director joins the Board or becomes
a non-employee director (or, in respect of the option for the additional 1,500
shares in the case of a non-employee Chairman of the Board, becomes the
Chairman) and (b) on each succeeding January 1. The option price for each option
shall be the fair market value of the Common Stock on the date of grant of that
option.
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<PAGE>
Each such option shall become exercisable one year from the date of the
grant thereof.
Each such option shall terminate 10 years from the date of grant unless
sooner terminated by reason of termination of service as a director.
In the event of termination of service as a director for any reason
other than death, an option granted pursuant to this Section 16 exercisable by
the director at the date of termination may be exercised at any time within 90
days after that termination, but not later than the date of expiration of the
option. The option shall expire upon the termination of service as a director to
the extent it was not then exercisable, and otherwise upon the earlier of the
expiration of the 90-day period or the date of expiration of the option.
In the event of the death of a director, any person or persons
(including the legal representative of the estate of the director) who is the
holder of an option granted pursuant to this Section 16 or to whom an option
granted pursuant to this Section 16 shall pass by will or by the laws of descent
and distribution may exercise such an option exercisable by the director at the
date of death at any time within one year after the date of death, but not later
than the date of expiration of the option. The option shall expire on the date
of death to the extent it was not then exercisable, and otherwise upon the
expiration of the earlier of the one-year period or the date of expiration of
the option.
Except as expressly provided in this Section, any option granted
hereunder shall be subject to the terms and conditions of the Plan as if the
grant were made pursuant to Section 5 hereof.
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In the event that the number of shares of Common Stock available for
future grant under the Plan is insufficient to make all automatic grants
required to be made on such date, then all non-employee directors entitled to a
grant on such date shall share ratably in the number of options on shares
available for grant under the Plan.
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