TERMS AND CONDITIONS OF STOCK AWARD, EMPLOYMENT AND SEPARATION
Exhibit 10(iii)(w)
TERMS AND CONDITIONS OF STOCK AWARD, EMPLOYMENT AND SEPARATION
These Terms and Conditions of Stock Award, Employment and Separation (the “Agreement”) is
entered into this 1st day of June, 2010 by and between COMMERCIAL METALS INTERNATIONAL AG (the
“Employer” or the “Company”), a Swiss corporation that is a wholly-owned subsidiary of Commercial
Metals Company, a Delaware corporation (“CMC”), and XX. XXXXX X. XXXXXXXX (the “Executive”). The
Employer and Executive are collectively referred to as the “Parties,” and individually as a
“Party.”
R E C I T A L S:
WHEREAS, the Executive and the Employer are parties to an employment agreement (the
“Employment Agreement”) entered into on January 2, 1998, that both Parties desire to amend and
restate with this Agreement as a condition to eligibility for stock awards and for consistency in
form to employment agreements being entered into by the executive management team in 2010.
WHEREAS, Executive desires to be employed by Employer in this position pursuant to all of the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed as
follows:
1. PURPOSE. The purpose of this Agreement is to amend and restate the Employment
Agreement in its entirety and to formalize the terms and conditions of Executive’s employment with
Employer as Executive Vice President Commercial Metals Company and President CMC International
Division. This Agreement may only be amended by a writing signed by both Parties.
2. DEFINITIONS. For the purposes of this Agreement, the following words and terms
shall have the following meanings:
a. “AFFILIATE” or “AFFILIATES” shall mean any corporation, parent corporation, sister
corporation, partnership, joint venture, association, unincorporated organization or any other
legal entity that, directly or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Employer.
b. “CAUSE” shall mean (i) Executive’s commission of theft, embezzlement, fraud, financial
impropriety, any other act of dishonesty relating to his employment with the Company, or any
willful violation of Company or CMC policies (including the Company’s and CMC’s ethics policies) or
lawful directives of the Company or CMC, or any law, rules, or regulations applicable to the
Company or CMC, including, but not limited to, those established by the Securities and Exchange
Commission, or any self-regulatory organization having
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jurisdiction or authority over Executive, the Company or CMC or any willful failure by
Executive to inform the Company and CMC of any violation of any law, rule or regulation by the
Company, CMC or one of their direct or indirect subsidiaries, provided, however, that Cause shall
not include any act or omission of Executive that the Executive reasonably believes is not a
violation of any such policies, directives, law, rules or regulations based on the advice of legal
counsel for CMC; (ii) Executive’s willful commission of acts that would support the finding of a
felony or any lesser crime having as its predicate element fraud, dishonesty, misappropriation, or
moral turpitude; (iii) Executive’s failure to perform his duties and obligations under this
Agreement (other than during any period of disability) which failure to perform is not remedied
within thirty (30) days after written notice thereof to the Executive by the Chief Executive
Officer of CMC; or (iv) Executive’s commission of an act or acts in the performance of his duties
under this Agreement amounting to gross negligence or willful misconduct, including, but not
limited to, any breach of Section 9 of this Agreement.
c. CONFIDENTIAL INFORMATION. During the course of his employment, Executive will receive
Confidential Information of Employer, CMC and their Affiliates. Confidential Information means
information (1) disclosed to or known by Executive as a consequence of or through his employment
with Employer, CMC or their Affiliates; and (2) which relates to any aspect of Employer’s, CMC’s or
their Affiliate’s business, research, or development. “Confidential Information” includes, but is
not limited to, Employer’s, CMC’s and their Affiliate’s trade secrets, proprietary information,
business plans, marketing plans, financial information, employee performance, compensation and
benefit information, cost and pricing information, identity and information pertaining to
customers, suppliers and vendors, and their purchasing history with Employer, CMC and any of their
Affiliates, any business or technical information, design, process, procedure, formula,
improvement, or any portion or phase thereof, that is owned by or has, at the time of termination,
been used by the Employer, CMC or their Affiliates, any information related to the development of
products and production processes, any information concerning proposed new products and production
processes, any information concerning marketing processes, market feasibility studies, cost data,
profit plans, capital plans and proposed or existing marketing techniques or plans, financial
information, including, without limitation, information set forth in internal records, files and
ledgers, or incorporated in profit and loss statements, fiscal reports, business plans or other
financial or business reports, and information provided to Employer, CMC or their Affiliate by a
third party under restrictions against disclosure or use by Employer or others.
d. “CONFLICT OF INTEREST” means any situation in which the Executive has two or more duties or
interests that are mutually incompatible and may tend to conflict with the proper and impartial
discharge of the Executive’s duties, responsibilities or obligations to Employer, including but not
limited to those described in CMC’s Code of Conduct (the “Code”) that Executive has either not
disclosed to Employer or has disclosed and not been granted a waiver by the Audit Committee of the
Board of Directors of CMC under the provisions of such Code.
e. “GOOD REASON” shall mean the occurrence, without Executive’s written consent, of any of the
following events (i) a breach of any material provision of this Agreement by Employer; or (ii) a
significant reduction in the authorities, duties, responsibilities, compensation, and/or title of
the Executive as set forth in this Agreement.
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Executive shall give Employer and CMC written notice of an intent to terminate this Agreement
for “Good Reason” as defined in this Agreement, and (except as set forth above) provide Employer
with thirty (30) business days after receipt of such written notice from Executive to remedy the
alleged Good Reason.
3. DURATION. This Agreement shall, unless terminated as hereinafter provided (see
section 7, termination with a three months notice period), continue through August 31, 2012.
Unless Executive or Employer gives written notice of his or its intent not to renew this Agreement
no later than thirty (30) days prior to its expiration, this Agreement shall automatically continue
in effect for successive additional one (1) year terms subject to all other terms and conditions
contained herein (including section 7, termination with a three months notice period).
4. AGE 65 MANDATORY RETIREMENT. Executive understands and agrees that he is employed
in a bona fide executive and high policy-making position, and that the position of Executive Vice
President Commercial Metals Company and President CMC International Division is subject to a
mandatory retirement age of sixty five (65).
5. DUTIES AND RESPONSIBILITIES. Upon execution of this Agreement, Executive shall
diligently render his services to Employer as Executive Vice President Commercial Metals Company
and President CMC International Division in accordance with Employer’s directives, and shall use
his best efforts and good faith in accomplishing such directives. Executive shall report to either
the Chairman of the Board of Directors of CMC, the Chief Executive Officer, the President, or the
Chief Operating Officer of CMC as approved from time to time by the Board of Directors of CMC.
Executive agrees to devote his full-time efforts, abilities, and attention (defined to mean not
normally less than forty (40) hours/week) to the business of Employer, and shall not engage in any
activities which will interfere with such efforts.
6. COMPENSATION AND BENEFITS. In return for the services to be provided by Executive
pursuant to this Agreement, Employer agrees to pay Executive as follows:
a. SALARY. Executive shall receive an annual base salary of not less than Five Hundred
Thirty-Five Thousand Swiss Francs (CHF 535,000.00) during the term of this Agreement. This salary
may be increased at the sole discretion of Employer, and may not be decreased without Executive’s
written consent. Notwithstanding the foregoing, the Executive may voluntarily decrease his salary
at any time. The salary includes all compensation for overtime. The Executive and the Company
shall each pay half of the contributions for AHV (Old Age and Survivors’ Insurance), IV (Invalidity
Insurance), EO (Loss of Earnings) and ALV (Unemployment Insurance). The Employee’s contributions
are deducted by the Company from his gross salary. The Employee shall be entitled to participate
in the Company’s pension plan. The contributions and the benefits are determined by the rules and
regulations of the pension plan.
b. BONUS. Executive shall be eligible to receive a bonus (the “Bonus”) for each of the
Company’s fiscal years ending August 31 during the term of this Agreement pursuant to CMC’s 2006
Cash Incentive Plan, CMC’s discretionary incentive plan, and any other short or long-term incentive
plans as may be applicable to executives of similar level in the Company. The amount of any annual
or long-term bonus shall be determined by, and in the sole discretion of, CMC’s Board of Directors.
The Bonus, if any, shall be paid in a lump sum, as soon as
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practicable following the end of the Employer’s fiscal year to which the Bonus relates, but in
no event later than November 1 following the end of such fiscal year.
c. PAYMENT AND REIMBURSEMENT OF EXPENSES. Employer shall pay or reimburse the Executive for
all reasonable travel and other expenses incurred by Executive in performing his obligations under
this Agreement in accordance with the policies and procedures of Employer and CMC.
d. OTHER INSURANCE, FRINGE BENEFITS AND PERQUISITES. Executive shall be entitled to
participate in or receive insurance and any other benefits under any plan or arrangement generally
made available to the employees or executive officers of Employer, including short and long-term
plans for grants of equity, short and long-term bonus and incentive plans, health and welfare
benefit plans, life insurance coverage, disability insurance, and hospital, surgical, medical, and
dental benefits for Executive and his qualified dependents, (to the extent Executive elects to
participate in such coverage where optional), and fringe benefit plans or arrangements, all subject
to and on a basis consistent with the terms, conditions, and overall administration by Employer
and/or CMC of such plans and arrangements.
e. VACATION. In accordance with the policies of Employer and CMC, Executive shall be entitled
at least to the number of paid vacation days in each employment year determined by Employer from
time to time for its employees generally, but not fewer than twenty (20) business days in any
employment year (prorated based on start date of employment in any year in which Executive is
employed hereunder for less than the entire year in accordance with the number of days in such year
during which Executive is so employed).
f. EXECUTIVE EMPLOYEE CONTINUITY AGREEMENT. Executive and CMC are party to a separate
agreement known as The Executive Employee Continuity Agreement (the “EECA”). The EECA remains in
effect and is not superseded by this Agreement. Except as to restrictive covenants, to the extent
that there are conflicts between this Agreement and the EECA, terms of the EECA shall control. As
to restrictive covenants, terms of this Agreement shall control over any conflict in terms.
7. TERMINATION. In addition to Paragraph 3 above, the following applies with respect
to termination of this Agreement whereas any termination will also serve as termination of any and
all offices, positions and directorships held by Executive with the Employer, CMC and any of their
subsidiaries and Affiliates. Executive undertakes to sign any respective resignation letter that
is necessary for his deletion from the Commercial Register:
a. Both Parties may mutually agree to terminate this Agreement with a three month
notice period as per the end of each month.
b. Executive’s employment will terminate upon his death (Art. 338 CO).
c. Both Parties may mutually agree to terminate this Agreement with immediate effect for
important reasons in the sense of Art. 337 CO.
d. In case of Executives disability, the Company may terminate the Executive’s employment with
the contractual notice period of three months if the Company respects the time limits as set out in
Art. 336c let. b CO, according to which a termination following a disability of an employee is null
and void if it is issued (i) within the first 30 days
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starting from the first day of disability in the first year of employment, or (ii) within 90
days from the second to the fifth year of employment, or (iii) within 180 days starting from the
fifths year of employment.
Executive may terminate this Agreement for Good Reason in accordance with the provisions of
Paragraph 2(e) herein.
8. SEVERANCE. Except in the event of a Qualified Termination within twenty-four (24)
months following a Change in Control, as both are defined in the Executive Employment Continuity
Agreement, and which are governed exclusively by the EECA, Executive shall be entitled to the
following compensation, in addition to any accrued but unpaid salary, in the event that this
Agreement and his employment are terminated under the following conditions, which are the exclusive
compensation and remedies for termination of this Agreement and the employment relationship:
a. TERMINATION RESULTING FROM DEATH OR AFTER DISABILITY. Subject to the provisions of Section
8(d) below, in the event Executive’s employment is terminated as a result of his death or is issued
by the Employer following a certain time period of disability, Executive or his estate shall be
entitled to (i) such life insurance or disability benefits as Executive may be entitled to pursuant
to any life or disability insurance then maintained by the Employer for the benefit of its
employees and executive officers, if any, and; (ii) a pro-rata share of the Bonus in an amount as
determined by CMC’s Board of Directors in their sole discretion, payable no later than November 30
following the end of Employer’s fiscal year during which such termination occurs; (iii) pursuant to
the terms and conditions of CMC’s 2006 Employee Cash Incentive Plan, payment, at such time as all
other participants in that plan receive payment, of any cash incentive attributable to periods
during which Executive was employed; and (iv) to the extent permitted by the terms and conditions
of CMC’s 2006 Long-Term Equity Incentive Plan or other applicable equity incentive plan(s) and to
the extent authorized by the terms of each of Executive’s outstanding award or grant agreements
entered into pursuant to such plan(s), immediate vesting of all stock appreciation rights,
restricted stock, and/or stock options previously awarded Executive. Except as otherwise provided
by this Section 8(a) or Section 8(d) below, any amount payable pursuant to this Section 8(a) shall
be paid on the 60th day following Executive’s termination due to Executive’s death.
b. TERMINATION WITHOUT CAUSE BY EMPLOYER, NON-RENEWAL BY EMPLOYER, OR FOR GOOD REASON BY
EXECUTIVE. Except in the event of a Constructive Termination related to a Change of Control (as
both terms are defined in the Executive Employment Continuity Agreement between the Executive and
CMC), in the event Executive’s employment is terminated without Cause (as defined in Paragraph
2(b)) by the Employer, or for Good Reason (as defined in Paragraph 2(e)) by the Executive, or the
Employer elects not to renew the Agreement pursuant to Paragraph 3 either at the end of the initial
term or any successive one-year extension, subject to Executive’s execution of a general release
agreement in favor of Employer and CMC releasing all pending or potential claims, Executive shall
be entitled to an amount equal to two times the Executive’s then-current annual base salary. If
Executive elects not to renew this Agreement, except for Good Reason (as defined in Paragraph
2(e)), then he shall be entitled only to any accrued but unpaid salary through the date of such
termination. Except as otherwise provided by Section 8(d) below, any amount payable pursuant to
this Section 8(b) shall be paid on the 60th day following Executive’s termination.
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c. TERMINATION FOR CAUSE. In the event Executive’s employment is terminated for Cause (as
defined in Paragraph 2(b)) by Employer or without Good Reason (as defined in Paragraph 2(e)) by
Executive, the Executive shall only be entitled to accrued but unpaid salary through the date of
his termination and will not be entitled to any additional compensation or benefits except as
expressly required by applicable law concerning compensation and benefits upon termination of
employment.
9. NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY. Employer and Executive
acknowledge and agree that while Executive is employed pursuant to this Agreement, he will be
provided access to Confidential Information of Employer, CMC and their Affiliates, will be provided
with specialized training on how to perform his duties, and will be provided contact with
Employer’s, CMC’s and their Affiliates’ customers and potential customers throughout the world.
Executive further recognizes and agrees that (a) Employer, CMC and their Affiliates have devoted a
considerable amount of time, effort, and expense to develop their Confidential Information,
training, and business goodwill, all of which are valuable assets to the Employer, CMC and their
Affiliates; (b) that Executive will have broad responsibilities regarding the management and
operation of Employer’s, CMC’s and their Affiliates’ world-wide operations, as well as its
marketing and finances, its existing and future business plans, customers and technology; and (c)
disclosure or use of Employer’s, CMC’s or their Affiliates’ Confidential Information and additional
information described herein to which Executive will have access, would cause irreparable harm to
the Employer, CMC and their Affiliates. Therefore, in consideration of all of the foregoing,
Employer and Executive agree as follows:
a. NON-COMPETITION DURING AND AFTER EMPLOYMENT. As stated in Paragraph 2(c) herein, Executive
will receive Confidential Information and will particularly have access to all customer data by
virtue of his employment in an executive capacity with the Company. Accordingly, Executive agrees
that during his employment for the Company and for a period of eighteen (18) months after
termination of his employment for any reason, he will not compete with Employer, CMC or their
Affiliates in any location in the world in which Employer, CMC or their Affiliates have operations
as of the date of Executive’s termination, by engaging in the conception, design, development,
production, marketing, selling, sourcing or servicing of any product or providing of any service
that is substantially similar to the products or services that Employer, CMC or any of their
Affiliates provided during Executive’s employment or planned to provide during Executive’s
employment and of which Executive had knowledge, responsibility or authority, and that he will not
work for, assist, or become affiliated or connected with, as an owner, partner, consultant, or in
any other capacity, either directly or indirectly, any individual or business which offers or
performs services, or offers or provides products substantially similar to the services and
products provided by Employer, CMC or their Affiliates during Executive’s employment, or that were
planned to be provided during Executive’s employment and of which Executive had knowledge,
responsibility or authority. Additionally, during this period, Executive will not accept
employment with or provide services in any capacity to any individual, business entity, investor,
or investment fund that is actively involved in or assessing an acquisition of a controlling
interest in the Company, CMC or their Affiliates or purchase of substantially all assets of the
Company, CMC or their Affiliates. The restrictive covenants set forth in this Agreement are
reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other
business interests of the Company, CMC or their Affiliates.
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b. CONFLICTS OF INTEREST. Executive agrees that for the duration of Executive’s employment, he
will not engage, either directly or indirectly, in any Conflict of Interest, and that Executive
will promptly inform the General Counsel of CMC as to each offer received by Executive to engage in
any such activity. Executive further agrees to disclose to Employer and CMC any other facts of
which Executive becomes aware which might involve or give rise to a Conflict of Interest or
potential Conflict of Interest.
c. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES. Executive further agrees that for a period of
two (2) years after the termination of his employment for any reason he will not either directly or
indirectly, on his own behalf or on behalf of others (i) solicit or accept any business from any
customer or supplier or prospective customer or supplier with whom Executive personally dealt or
solicited or had contact with at any time during Executive’s employment, (ii), solicit, recruit or
otherwise attempt to hire, or personally cause to hire any of the then current employees or
consultants of Employer, CMC or any of their Affiliates, or who were former employees or
consultants of Employer, CMC or any of their Affiliates during the preceding twelve (12) months, to
work or perform services for Executive or for any other entity, firm, corporation, or individual;
or (iii) solicit or attempt to influence any of Employer’s, CMC’s or any of their Affiliates’ then
current customers or clients to purchase any products or services substantially similar to the
products or services provided by Employer, CMC or their Affiliates during Executive’s employment
(or that were planned to be provided during Executive’s employment) from any business that offers
or performs services or products substantially similar to the services or products provided by
Employer, CMC or their Affiliates.
d. NON-DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION.
(i) Executive further agrees that during the term of his employment and thereafter he will
not, except as Employer, through its parent company, CMC, may otherwise consent or direct in
writing, reveal or disclose, sell, use, lecture upon, publish, or otherwise disclose to any third
party any Confidential Information or proprietary information of Employer, CMC or their Affiliates,
or authorize anyone else to do these things at any time either during or subsequent to his
employment with Employer. If Executive becomes legally compelled by deposition, subpoena or other
court or governmental action to disclose any Confidential Information, then the Executive shall
give Employer and CMC prompt notice to that effect, and will cooperate with Employer and CMC if
Employer seeks to obtain a protective order concerning the Confidential Information. Executive will
disclose only such Confidential Information as his legal counsel shall advise is legally required.
(ii) Executive agrees to deliver to Employer and CMC, at any time Employer or CMC may request,
all documents, memoranda, notes, plans, records, reports, and other documentation, models,
components, devices, or computer software, whether embodied in electronic format on a computer hard
drive, disk or in other form (and all copies of all of the foregoing), relating to the businesses,
operations or affairs of Employer, CMC or any of their Affiliates and any other Confidential
Information that Executive may then possess or have under his control.
(iii) This section shall continue in full force and effect after termination of Executive’s
employment and after the termination of this Agreement for any reason, including
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expiration of this Agreement. Executive’s obligations under this section of this Agreement
with respect to any specific Confidential Information and proprietary information shall cease when
that specific portion of Confidential Information and proprietary information becomes publicly
known, in its entirety and without combining portions of such information obtained separately and
without breach by Executive of his obligations under this Agreement. It is understood that such
Confidential Information and proprietary information of Employer, CMC and their Affiliates includes
matters that Executive conceives or develops during his employment, as well as matters Executive
learns from other employees of Employer, CMC or their Affiliates.
e. SURVIVAL OF RESTRICTIVE COVENANTS. All restrictive covenants herein shall survive
termination of this Agreement and Executive’s employment, regardless of reason, including
expiration of the Agreement by passage of time and non-renewal.
10. REMEDIES / PENALTY. Executive acknowledges that the restrictions contained in
Paragraph 9, in view of the nature of the Employer’s, CMC’s and their Affiliates’ global business
and Executive’s global position with the Employer, are reasonable and necessary to protect the
Employer’s, CMC’s and their Affiliates’ legitimate business interests, including their Confidential
Information, training and business goodwill, and that any violation of this Agreement would result
in irreparable injury to the Employer, CMC and their Affiliates. In the event of a breach by the
Executive of any provision of Paragraph 9, the Employer shall be entitled, in addition to claim an
indemnity for its damage or any other remedies that may be available, to claim a penalty from the
Executive in the amount of six (6) month’s salary for each violation of Paragraph 9 above. In
addition, the Employer has the right to request the termination of any of the Employee’s activities
which violate Paragraph 9 above. The existence of any claim or cause of action by Executive
against the Employer, CMC and their Affiliates whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Employer of the restrictive covenants
contained in Paragraph 9.
11. REFORMATION. The Executive and the Employer agree that all of the covenants
contained in Paragraph 9 shall survive the termination of Executive’s employment and/or termination
or expiration of this Agreement, and agree further that in the event any of the covenants contained
in Paragraph 9 shall be held by any court to be effective in any particular area or jurisdiction
only if said covenant is modified to limit in its duration or scope, then the court shall have such
authority to so reform the covenant and the Parties shall consider such covenant(s) and/or other
provisions of Paragraph 9 to be amended and modified with respect to that particular area or
jurisdiction so as to comply with the order of any such court and, as to all other jurisdictions,
the covenants contained herein shall remain in full force and effect as originally written. Should
any court hold that these covenants are void or otherwise unenforceable in any particular area or
jurisdiction, then the Employer may consider such covenant(s) and/or provisions of Paragraph 9 to
be amended and modified so as to eliminate therefrom the particular area or jurisdiction as to
which such covenants are so held void or otherwise unenforceable and, as to all other areas and
jurisdictions covered hereunder, the covenants contained herein shall remain in full force and
effect as originally written.
12. TOLLING. If the Executive violates any of the restrictions contained in this
agreement, the restrictive period will be continued and enlarged for such length of time as the
Employee is in violation of the restrictive covenant.
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13. NOTICE TO FUTURE EMPLOYERS. If Executive, in the future, seeks or is offered
employment, or any other position or capacity with another company or entity, the Executive agrees
to inform each new employer or entity, before accepting employment, of the existence of the
restrictions in Paragraph 9. Further, before taking any employment position with any company or
entity during the 18-month period described in Paragraph 9, the Executive agrees to give prior
written notice to the Employer via the General Counsel of CMC, including the name of such company
or entity and confirming in that notice that he has provided a copy of Paragraph 9 to such new
employer or entity.
14. INVENTIONS.
a. Executive acknowledges that during this Agreement, Executive may be involved in (1) the
conception or making of improvements, discoveries, inventions, designs or developments (whether or
not patentable and whether or not reduced to practice), (2) the production of original works of
authorship (whether or not registrable under copyright or similar statutes) or (3) the development
of trade secrets relating to Employer’s, CMC’s or any of their Affiliates’ business. The rights to
works of authorship (drafts, models, plans, drawings, texts) which the Executives creates while
performing his employment activity, whether during the performance of his contractual duties or
not, including the right to uses not yet known at this time, are transferred completely and
exclusively to CMC. Executive further acknowledges that all improvements, discoveries, inventions,
trade secrets, designs, developments or other form of intellectual property is the exclusive
property of Employer, CMC or any of their Affiliates.
b. Executive hereby waives any rights he may have in or to such intellectual property, and
Executive hereby assigns to Employer, CMC or any of their Affiliates all right, title and interest
in and to such intellectual property. At Employer’s, CMC’s or any of their Affiliates’ request and
at no expense to Executive, Executive shall execute and deliver all such papers, including any
assignment documents, and shall provide such cooperation as may be necessary or desirable, or as
Employer, CMC or any of their Affiliates may reasonably request, to enable Employer, CMC or any of
their Affiliates to secure and exercise its rights to such intellectual property.
c. Inventions and designs which the Executive makes or to which the Executive contributes
while performing his employment activity but not during the performance of his contractual duties
are assigned to the Company, without further formalities. The Executive shall inform the Company of
such inventions or designs. The Company shall inform the Executive in writing within six months
whether it wishes to keep the rights to the invention or the design or to release them to the
Employee. In case that the invention or the design is not released to the Employee, the Company
shall pay him a special appropriate compensation (Art. 332 para 4 CO).
15. RETURN OF PROPERTY. All lists, records, designs, patents, plans, manuals,
memoranda and other property delivered to the Executive by or on behalf of Employer, CMC or any of
their Affiliates or by any of their clients or customers, and all records and emails compiled by
the Executive that pertain to the business of the Employer, CMC or any of their Affiliates (whether
or not confidential) shall be and remain the property of the Employer, CMC and their Affiliates and
be subject at all times to its discretion and control. Likewise, all correspondence and emails
with clients, customers or representatives, reports, research, records, charts, advertising
materials, and any data collected by the Executive, or by or on behalf of the
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Employer, CMC or any of their Affiliates or its representatives (whether or not confidential)
shall be delivered promptly to the Employer without request by it upon termination of Executive’s
employment.
16. ASSIGNMENT. This Agreement may be assigned by Employer, but cannot be assigned by
Executive.
17. BINDING AGREEMENT. Executive understands that his obligations under this Agreement
are binding upon Executive’s heirs, successors, personal representatives, and legal
representatives.
18. EXECUTIVE’S REPRESENTATIONS. Executive represents that his acceptance of
employment with Employer (a) will not result in a breach of any of Executive’s obligations and
agreements with any current or former employer, partnership or other person and (b) would not
otherwise result in any liability to Employer, CMC or any of their Affiliates. In addition,
Executive represents to Employer that he is not a party or subject to (i) any restrictive
covenants, including without limitation, relating to competition, solicitation or confidentiality
(other than general obligations to maintain confidentiality) that precludes or would materially
interfere with his employment with Employer as contemplated by, and as of the date of, this
Agreement, and/or (ii) any agreement with any other employer, partnership or other person that in
any way materially compromises, limits or restricts Executive’s ability to perform his duties for
Employer as contemplated by, and as of the date of, this Agreement.
19. NOTICES. All notices pursuant to this Agreement shall be in writing and sent
certified mail, return receipt requested, addressed as follows:
Executive:
|
Employer: | |
Xxxxx X. Xxxxxxxx
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Commercial Metals International XX | |
| Xxxxxx X. XxXxxxx Xxxxxxxxxxxxx 00 0000 Xxxx |
||
| and | ||
| Commercial Metals Company Attention: General Counsel 0000 Xxxxx XxxXxxxxx Xxxx., Xxxxx 000 Xxxxxx, Xxxxx 00000 Fax: 000-000-0000 |
20. WAIVER. No waiver by either Party to this Agreement of any right to enforce any
term or condition of this Agreement, or of any breach hereof, shall be deemed a waiver of such
right in the future or of any other right or remedy available under this Agreement.
21. SEVERABILITY. Subject to the provisions of Paragraph 11 herein, if any provision
of this Agreement is determined to be void, invalid, unenforceable, or against public
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policy, such provisions shall be deemed severable from the Agreement, and the remaining
provisions of the Agreement will remain unaffected and in full force and effect. Furthermore, any
breach by Employer of any provision of this Agreement shall not excuse Executive’s compliance with
the requirements of Paragraph 11.
22. ENTIRE AGREEMENT AND UNDERSTANDING. The terms and provisions contained herein
shall constitute the entire agreement between the Parties with respect to Executive’s employment
with Employer during the time period covered by this Agreement. The Parties represent and warrant
that they have read and understood each and every provision of this Agreement, and that they are
free to obtain advice from legal counsel of choice, if necessary and desired, in order to interpret
any and all provisions of this Agreement, and that both Parties have voluntarily entered into this
Agreement.
23. EFFECTIVE DATE. It is understood that this Agreement shall be effective as of June
1, 2010 and that the terms of this Agreement shall remain in full force and effect both during
Executive’s employment and where applicable thereafter.
24. NO CLAIMS UNDER FORMER EMPLOYMENT AGREEMENT. The Executive confirms that there are
no outstanding claims under the Employment Agreement entered into on January 2, 1998.
25. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by Swiss law. In
case of a dispute, the Courts in Switzerland at the domicile or seat of the defendant shall have
jurisdiction (Art. 24 para. 1 of the Federal Act on Jurisdiction, as of January 1, 2011 replaced by
Art. 34 para. 1 of the Federal Civil Procedure Act).
[Signature Page to Follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
| EXECUTIVE | EMPLOYER | |||||
| COMMERCIAL METALS INTERNATIONAL AG | ||||||
/s/ Xxxxx X. Xxxxxxxx
|
||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Title: Director | ||||||
| By: | /s/ Xxxx Xxxxxx | |||||
| Title: Director | ||||||
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