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EXHIBIT 10(iii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is entered into as of
September 1, 1999, by and between Commercial Metals Company, a Delaware
corporation (the "COMPANY"), and Xxxxxx X. XxXxxxx (the "EXECUTIVE").
RECITALS:
WHEREAS, the Executive has been employed by direct or indirect
wholly-owned subsidiaries of the Company since 1985 in various capacities, most
recently as a Vice President and President of the International Division of the
Company's Marketing and Trading segment with the Executive's principal office
and residence near Sydney, Australia; and
WHEREAS, the Company desires to employ the Executive as a Vice
President and President of the Marketing and Trading segment which will require
the Executive to relocate his office and residence to the Company's corporate
headquarters in Dallas, Texas; and
WHEREAS, the Executive desires to accept the promotion and employment
by the Company;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Company and Executive agree as follows:
ARTICLE I
1.1 Employment. The Company hereby agrees to employ the Executive and
the Executive hereby accepts employment by the Company for the period and upon
the terms and conditions contained in this Agreement. The Executive hereby
represents and warrants to the Company that the execution of this Agreement by
the Executive and the Executive's performance of his duties hereunder will not
conflict with, cause a default under, or give any party a right to damages under
any other agreement to which the Executive is a party or is bound.
1.2 Office and Duties.
(a) Position. The Executive shall have the responsibility and
authority to carry out the duties as a Vice President of the Company and
President of the Marketing and Trading segment of the Company as described in
Exhibit "A" attached hereto and as may be further authorized and directed from
time to time by the President and Chief Executive Officer of the Company.
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(b) Relocation of Office and Residence. On or before the 1st
day of September, 2000, Executive shall relocate his principal office and shall
perform his duties primarily from and based out of an office located at the
Company's headquarters offices in Dallas, Texas. On or before the 1st day of
January, 2001, Executive shall relocate his principal residence and cause his
immediate family to move from their current residence in the vicinity of Sydney,
Australia, to a residence in the vicinity of Dallas, Texas.
(c) Commitment. Throughout the Initial Term and any Renewal
Term (both as hereinafter defined) of this Agreement, the Executive shall devote
substantially all of his time, energy, skill and professional efforts to the
performance of his duties hereunder in a manner that will faithfully and
diligently further the business and interests of Company and its subsidiaries.
1.3 Initial Term and Renewal Term. The INITIAL TERM of this Agreement
shall mean the period commencing September 1, 1999, and ending on August 31,
2002, unless earlier terminated in accordance with the terms of this Agreement
(in which case "Initial Term" shall refer to such shorter period). In the event
neither party has delivered a Notice of Termination (as herein defined) to the
other Party on or before the last day of the Initial Term this Agreement shall
be automatically extended for a one-year period commencing on September 1, 2002
and ending on Xxxxxx 00, 0000 (x "XXXXXXX XXXX") and shall continue to be
automatically extended upon expiration of the first Renewal Term for two
consecutive one-year periods thereafter (each subsequent one-year period a
"Renewal Term") unless the Company or the Executive delivers a Notice of
Termination as defined in Section 1.05(d). The parties may in their discretion
thereafter extend this Agreement on mutually satisfactory terms although neither
party shall have any obligation to do so.
1.4 Compensation.
(a) Base Salary. The Company shall pay the Executive as
compensation a salary of Three Hundred Thousand Dollars ($300,000) per year, or
such greater amount as may be approved by the Company's Board of Directors,
payable in accordance with Company's policies and practices applicable to
non-exempt employees.
(b) Discretionary Bonus Payment. The Company may, in its sole
discretion and subject to approval of the Company's Board of Directors, pay the
Executive a discretionary annual bonus for each fiscal year beginning September
1 and ending August 31 during the term of this Agreement.
(c) Payment and Reimbursement of Expenses. During the Initial
Term and any Renewal Term, the Company shall pay or reimburse the Executive for
all reasonable travel and other expenses incurred by the Executive in performing
his obligations under this Agreement in accordance with the policies and
procedures of the
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Company for its employees, provided that the Executive properly accounts
therefor in accordance with the policies and procedures of the Company.
(d) Fringe Benefits and Perquisites. During the Initial Term
and any Renewal Term, the Executive shall be entitled to participate in or
receive benefits under any plan or arrangement generally made available to the
employees or executive officers of the Company, including periodic grants of
stock options, all subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements and as
approved by the Company's Board of Directors. To the extent permitted by law and
the terms of the Company's benefit plans, including the Company's Profit Sharing
and 401(k) Plan and Benefit Restoration Plan, prior service by the Executive
with a subsidiary of the Company shall be credited as service with the Company
for purposes of vesting of any benefit. The Company shall furnish Executive with
an automobile equipped with telephone consistent with the Company's policies on
automobiles furnished senior corporate executives during the Initial Term and
any Renewal Term.
(e) Vacations. During the Initial Term and any Renewal Term
and in accordance with the regular policies of the Company, the Executive shall
be entitled to the number of paid vacation days in each calendar year determined
by the Company from time to time for its employees generally, but not fewer than
twenty business days in any calendar year (prorated in any calendar year in
which the Executive is employed hereunder for less than the entire year in
accordance with the number of days in such calendar year during which the
Executive is so employed).
(f) Insurance. Commencing on the date the Executive completes
the relocation of his principal office to Company's headquarters office in
Dallas, Texas, pursuant to Section 1.2(b) and for the Initial Term and any
Renewal Term, the Company shall, to the extent the Executive is insurable under
the insurance policy or policies procured by the Company for its employees,
provide life insurance coverage, disability insurance and hospital, surgical,
medical and/or dental benefits for the Executive and his qualified dependents on
such terms as the Company normally provide such items for its salaried employees
and executive officers.
(g) Moving Expenses and Relocation Assistance. The Company
shall, subject to and on a basis consistent with the policies and procedures of
the Company, pay or reimburse the Executive for expenses arising from the
relocation of Executives' primary residence to the vicinity of Dallas, Texas,
including the cost of moving household goods, personal items, spouse and
dependent travel to Executive's new residence. In addition to payment or
reimbursement of customary moving expenses, the Company shall pay the Executive
Twenty-Five Thousand Dollars ($25,000) for miscellaneous costs and expenses not
subject to reimbursement which Executive may incur associated with the
relocation of his residence pursuant to Section 1.2(b). This payment shall be
made within ten (10) days following notice from Executive that he has completed
the relocation of his residence. All such reimbursement and payments
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by the Company, to the extent required by law, shall be considered compensation
to Executive and subject to any applicable tax withholding requirements.
(h) Personal Travel. Each twelve months during the Initial
Term or any Renewal Term, the Company shall provide Executive with four round
trip airplane tickets between Dallas, Texas and Sydney, Australia, for the
personal use of Executive and his family. Two of the tickets shall be Business
Class or equivalent and two shall be Tourist (Economy Class) or equivalent. The
cost of such tickets shall be paid by the Company and, to the extent required by
law, considered compensation to Executive and subject to any applicable tax
withholding requirements.
(i) Outstanding Loan. The outstanding loan from CMC
(Australia) Pty. Limited to the Executive in the unpaid principal amount of $A
150,000.00 as of October 13, 1999, and secured by real property located at 000
Xxxx Xxxxxxx Xxxx Xxxxx Xxxxx Xxx XXX Xxxxxxxxx, evidenced by a second mortgage
note dated the 6th day of June, 1994, shall, at the Executive's option, be
repaid from either (i) the proceeds of the sale of Executive's residence in
Australia or (ii) the proceeds of a new loan from the Company in the amount of
the unpaid principal and interest and upon terms and conditions satisfactory to
the Company and secured by a Deed of Trust lien in favor of the Company on
Executive's residence in the vicinity of Dallas, Texas, at the time Executive
completes relocation of his residence to Dallas, Texas.
(j) Payroll Transition. Until such time as Executive has
relocated his principal residence to Dallas, Texas pursuant to Section 1.2(b),
and, at such time, is transferred to the Company's payroll, the Company shall
cause CMC (Australia) Pty. Limited to pay Executive the base salary described in
Section 1.4(a) and to provide such benefits, insurance coverage and perquisites
as are provided other employees of CMC (Australia) Pty. Limited or as the
Executive received prior to the effective date of this Agreement. The Executive
acknowledges that obligations of the Company to provide the compensation
described in Section 1.4 shall be satisfied by compensation received from the
payroll of CMC (Australia) Pty. Limited until such time as Executive has
relocated his personal residence and is transferred to the Company's payroll.
1.5 Termination.
(a) Nonperformance due to Disability. During the Initial Term
or any Renewal Term, the Company may terminate the Executive's employment for
Nonperformance due to Disability. "NONPERFORMANCE DUE TO DISABILITY" shall exist
if because of ill health, physical or mental disability, or any other reason
beyond his control, and notwithstanding reasonable accommodations made by the
Company, the Executive shall have been unable, unwilling or shall have failed to
perform the essential functions of his job, as determined in good faith by
Company's Board of Directors, for a period of 100 days in any 365-day period,
irrespective of whether or not such days are consecutive.
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(b) Cause. During the Initial Term or any Renewal Term, the
Company may terminate the Executive's employment for Cause. Termination for
"CAUSE" shall mean termination because of the Executive's (i) conviction of, or
a plea of nolo contendere to, (A) a felony or (B) a misdemeanor involving moral
turpitude that causes harm to the Company or any of its affiliates that, in the
good faith judgment of the Company, has damaged or interfered with the
relationships of the Company or any of its affiliates with any of their
customers, suppliers, employees or other agents; (ii) willful misconduct that
causes material economic harm to the Company or that brings substantial
discredit to the reputation of the Company or any of its affiliates; (iii)
substance abuse or illegal use of drugs that impairs the Executive's
performance, that causes harm to the Company or any of its affiliates or that,
in the reasonable judgment of the Company, has damaged or interfered with the
relationships of the Company or any of its affiliates with any of their
customers, suppliers, employees or other agents; (iv) material violation of any
written policy of the Company or material breach by the Executive of this
Agreement, other than a breach of Section 2.2 (Confidential Information) or
Section 2.3 (Non-Competition Agreement); provided, however, that the foregoing
shall not constitute Cause unless (A) the Company first notifies the Executive
in writing of such violation or breach, specifying in reasonable detail the
basis therefor and stating that it is grounds for termination for Cause and (B)
the Executive then fails to finally cure such matter within ten (10) business
days after such notice is sent or given under this Agreement; (v) commission of
an act of fraud, illegality, theft or dishonesty in the course of the
Executive's employment with the Company and relating to the assets, activities,
operations or employees of the Company or any of its affiliates; or (vi) breach
by the Executive of Section 2.2 (Confidential Information) or Section 2.3
(Non-Competition Agreement) of this Agreement. The term "AFFILIATE" shall mean a
person that directly, or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, the Company, or other
applicable entity.
(c) Without Cause. During the Initial Term or any Renewal
Term, the Company may terminate the Executive's employment Without Cause.
Termination "WITHOUT CAUSE" shall mean termination of the Executive's employment
by the Company other than termination for Cause or termination for
Nonperformance due to Disability.
(d) Explanation of Termination of Employment. In addition to
any notice required by clause (iv) of Section 1.5(b) (Cause), the party
terminating this Agreement shall give prompt written notice ("NOTICE OF
TERMINATION") to the other party hereto advising such other party of the
termination of this Agreement. If the Company has terminated the Agreement,
within thirty (30) days after notification that the Agreement has been
terminated, the Company shall deliver to the Executive a written explanation,
which shall state in reasonable detail the basis for such termination.
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(e) Date of Termination. "DATE OF TERMINATION" shall mean the
date on which Notice of Termination is sent or given under this Agreement or the
date of the Executive's death, whichever occurs first.
1.6 Compensation Upon Termination.
(a) Termination by the Company for Cause or Nonperformance due
to Disability; Termination by the Executive. If the Company terminates the
Executive's employment for Cause, or for Nonperformance due to Disability, or if
the Executive terminates his employment for any reason, then Company's
obligation to pay compensation pursuant to Section 1.4 (Compensation) shall
terminate, except that the Company shall pay the Executive his accrued but
unpaid salary and provide the fringe and insurance benefits specified in Section
1.4 (Compensation) through the Date of Termination. Thereafter the Company shall
provide Executive only such benefits to the extent and for the period of time as
may be required by the Consolidated Omnibus Budget Reconciliation Act of 1995
(COBRA) or similar statute applicable to Executive's employment by the Company.
(b) Termination Upon Death of the Executive. If the Executive
dies prior to the expiration of this Agreement, then the Executive's employment
and other obligations under this Agreement shall automatically terminate and
Company's obligation to pay compensation pursuant to Section 1.4 (Compensation)
shall terminate, except that the Company shall pay the Executive's estate his
accrued but unpaid salary and provide the fringe and insurance benefits
specified in Section 1.4 (Compensation) through the end of the month in which
the Executive's death occurs. Thereafter the Company shall provide the surviving
spouse or eligible dependants only such benefits to the extent and for the
period of time as may be required by COBRA or similar statute applicable to
Executive's employment by the Company.
(c) Termination by the Company Without Cause. If the Company
shall terminate the Executive's employment Without Cause, then the Company shall
continue to pay the base salary then applicable pursuant to Section 1.4 (a)
(Compensation) for a period of two years following the date of Notice of
Termination during the Initial Term or for twelve months if Notice of
Termination occurs during any Renewal Term. No other form of compensation
including those specified in Section 1.4 will be paid to or for Executive except
as may be required by COBRA or similar statute applicable to Executive's
employment by the Company.
ARTICLE II
2.1 Acknowledgments by the Executive. The Executive acknowledges that
he will occupy a position of trust and confidence with the Company and will have
the opportunity to become familiar with the following, any and all of which
constitute
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confidential information of the Company (collectively, "CONFIDENTIAL
INFORMATION"): (i) any and all trade secrets and proprietary information
concerning the business and affairs of the Company, product pricing, contract
terms, hedging practices, data, know-how, formulae, compositions, processes,
samples, inventions and ideas, past, current and planned product development,
supplier lists, customer lists, current and anticipated customer requirements,
market studies, marketing plans and strategies, supply or sourcing information,
business plans and computer software and programs of the Company and any other
information, whether or not documented in any manner, of the Company that is a
trade secret within the meaning of applicable trade secret law; (ii) any and all
information concerning the businesses and affairs of the Company (which includes
historical financial statements, financial projections and budgets, historical
and projected sales, capital spending budgets and plans, new product development
information, supplier or customer information, the names and backgrounds of key
personnel, personnel training and techniques and materials), however documented;
and (iii) any and all notes, analyses, compilations, studies, summaries, and
other material prepared by or for the Company containing or based, in whole or
in part, on any information included in the foregoing.
The Executive further acknowledges that the business of the Marketing
and Trading Segment of the Company is conducted throughout the United States of
America from offices in New York, New Jersey, California and Texas and from
approximately fourteen offices through the world (the "BUSINESS AREA"); the
Marketing and Trading Segment of the Company buys and sells products throughout
the Business Area; the provisions of Section 2.2 (Confidential Information) and
Section 2.3 (Non-Competition Agreement) are reasonable and necessary to protect
and preserve the business of the Company; and the Company would be irreparably
damaged if the Executive were to breach the covenants set forth in Section 2.2
(Confidential Information) and Section 2.3 (Non-Competition Agreement).
2.2 Confidential Information. The Executive acknowledges and agrees
that all Confidential Information known or obtained by the Executive, whether
before or after the date hereof, is the property of the Company. Therefore, the
Executive agrees that he shall not, at any time, other than in the Executive's
good faith pursuit of the Company's business in the course and scope of the
Executive's employment, use or disclose to any unauthorized individual,
corporation (including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union, governmental or quasi-governmental
authority of any nature, or other entity (collectively, a "PERSON") or use for
his own account or for the benefit of any third party any Confidential
Information, whether the Executive has such information in his memory or
embodied in writing or other physical form, without the Company's prior written
consent, unless and to the extent that the Confidential Information is or
becomes generally known to and available for use by the public other than as a
result of the Executive's actions or the actions of any other Person bound by a
duty of confidentiality to the Company or
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one of its affiliates. If the Executive becomes legally compelled by deposition,
subpoena or other court or governmental action to disclose any of the
Confidential Information, then the Executive will give the Company prompt notice
to that effect, and will cooperate with the Company if the Company seeks to
obtain a protective order concerning the Confidential Information. The Executive
will disclose only such Confidential Information as his counsel shall advise is
legally required. The Executive agrees to deliver to the Company, at any time
the Company may request, all documents, memoranda, notes, plans, records,
reports, and other documentation, models, components, devices, or computer
software, whether embodied in a disk or in other form (and all copies of all of
the foregoing), relating to the businesses, operations, or affairs of the
Company or any of its affiliates and any other Confidential Information that the
Executive may then possess or have under his control.
2.3 Non-Competition Agreement. The Executive agrees and covenants with
the Company that for a period beginning on the date hereof and ending on that
date that is two (2) years after the Date of Termination, he will not, except
pursuant to any written consulting or employment agreement with the Company,
directly or indirectly either (a) own, manage, operate, finance, join, control
or participate in the ownership, management, operation, financing, or control
of, or be employed by or connected in any manner with any business which is or
proposes to engage in any business conducted during the Initial Term or any
Renewal Term of this Agreement by the Marketing and Trading Segment of the
Company or any affiliate of the Company in the Marketing and Trading Segment,
(b) solicit or in any manner attempt to influence or induce any employee
employed, now or in the future, by the Company or any affiliate of the Company
in the Marketing and Trading Segment, to leave such employment, (c) solicit or
in any manner attempt to influence or induce any sales or purchasing agent with
whom the Marketing and Trading Segment of the Company or any affiliate of the
Company in the Marketing and Trading Segment, enters or has entered into an
agreement, now or in the future, to act as a sales or purchasing agent with
respect to the territories and goods covered by such agreement, (d) induce any
Person who is or has been a customer of the Marketing and Trading Segment of the
Company or any affiliate of the Company in the Marketing and Trading Segment to
patronize any business directly or indirectly in competition with the business
conducted by the Marketing and Trading Segment of the Company or any affiliate
of the Company in the Marketing and Trading Segment, (e) canvass, solicit or
accept from any Person who is or has been a customer of the Marketing and
Trading Segment of the Company or any affiliate of the Company in the Marketing
and Trading Segment, any such competitive business, or (f) request or advise any
Person who is or has been a customer of the Marketing and Trading Segment of the
Company or any affiliate of the Company in the Marketing and Trading Segment to
withdraw, curtail or cancel any such customer's business with the Marketing and
Trading Segment of the Company or any affiliate of the Company in the Marketing
and Trading Segment.
2.4 Exceptions. Notwithstanding the foregoing restrictions, nothing in
this Agreement shall be construed to restrict or prohibit ownership by the
Executive of
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stock of any company listed on the New York or American Stock Exchanges or the
Nasdaq National Market System; provided, that the Executive's ownership interest
is not more than five percent (5%) or more of the outstanding voting shares of
such company.
2.5 Remedies. The parties agree that in the case of a breach by the
Executive of any of the foregoing agreements, damages would be difficult, if not
impossible, to prove, and the Company shall be entitled to injunctive relief as
its primary, but not exclusive remedy, against the breaching Executive. If the
Executive is found to have violated any of the foregoing agreements, the parties
agree that the duration of the non-competition period set forth above shall be
automatically extended by the same period of time that the Executive is
determined to be in violation of the foregoing agreements. The parties hereby
further agree that the restrictions and obligations herein set forth are (a)
reasonable and necessary to protect the substantial value of the Company, and
(b) directly benefit the Executive. The representations and covenants contained
in this Article II on the part of the Executive will be construed as ancillary
to and independent of any other provision of this Agreement, and the existence
of any claim or cause of action of the Executive against the Company or any
officer, director, or stockholder of the Company whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement
against the Executive of the covenants of the Executive contained in this
Article II. Notwithstanding any other provision of this Agreement, the
provisions of this Article II and the rights and remedies to enforce such
provisions shall be assignable in favor of any successor or assign of the
Company.
ARTICLE III
3.1 Executive's Sole Remedy. The Executive's sole remedy shall be
against the Company (or any assignee or successor to all or substantially all
the assets of the Company (collectively, "ASSIGNS")) for any Executive Claim
(defined below). The Executive shall have no claim or right of any nature
whatsoever against any of the Company's (or any subsidiary's or owner's)
directors, officers, employees, direct and indirect stockholders, owners,
trustees, beneficiaries or agents, irrespective of when any such person held
such status (collectively, the "THE COMPANY AFFILIATES") (other than Assigns)
arising out of any Executive Claim. The Executive hereby releases and covenants
not to xxx any person other than the Company or its Assigns over any Executive
Claim. The Company Affiliates shall be third-party beneficiaries of this
Agreement for purposes of enforcing the terms of this Section 3.1 against the
Executive. Except as set forth in the immediately preceding sentence, nothing in
this Agreement, express or implied, is intended to confer upon any party, other
than the parties hereto, the Company and the Company's Assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement, and
no person who is not a party to this Agreement may rely on the terms hereof.
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Xxxx xxxxxxxxxxx of the Executive's employment, the sole claim of the
Executive against the Company and its Assigns for Executive Claims will be for
the amounts described in Section 1.6 (Compensation Upon Termination), and the
Executive shall have no claim against the Company or its Assigns for any
Executive Claim, other than those set forth in Section 1.6 (Compensation Upon
Termination), or against any the Company Affiliate (other than Assigns) for
Executive Claims, including, without limitation, any claim for damages of any
nature, be they actual, direct, indirect, special, punitive or consequential.
The Executive hereby releases and covenants not to xxx for, collect or otherwise
recover any amount against the Company or its Assigns for any Executive Claim,
other than the amounts set forth in Section 1.6 (Compensation Upon Termination),
or against any the Company Affiliate (other than Assigns) for any Executive
Claim. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE LIMITATIONS ON THE
EXECUTIVE'S REMEDIES EXPRESSED IN THIS SECTION 3.1 APPLY WITHOUT LIMITATION TO
EXECUTIVE CLAIMS RELATING TO NEGLIGENCE.
"EXECUTIVE CLAIM" shall mean any claim, liability or obligation of any
nature whatsoever arising out of this Agreement or an alleged breach of this
Agreement or for any other claim arising out of the Executive's employment by
the Company or the termination thereof.
3.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon the earlier of delivery thereof if by
hand or upon receipt if sent by mail (registered or certified mail, postage
prepaid, return receipt requested) or on the second next business day after
deposit if sent by a recognized overnight delivery service or upon transmission
if sent by telecopy or facsimile transmission (with request of assurance of
receipt in as a manner customary for communication of such type) as follows:
(a) if to the Company, to:
Commercial Metals Company
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx - Chief Executive Officer
Facsimile No.: 214/689-4326
with copies to:
Xxxxx X. Sudbury, Esq.
General Counsel
Commercial Metals Company
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Facsimile No.: 214/689-4326
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(b) if to the Executive, to:
Xxxxxx X. XxXxxxx
660 Port Hacking Road South
Dolans Bay, NSW Australia 2229
Any party by written notice to the other party pursuant to this Section may
change the address or the persons to whom notices or copies thereof shall be
directed.
3.3 Assignment. This Agreement and the rights and duties hereunder
shall be binding upon and inure to the benefit of the parties hereto and the
successors, representatives and assigns of each of the parties to this
Agreement. No rights, obligations or liabilities hereunder shall be assignable
by any party without the prior written consent of the other parties, except that
the Company may assign their rights under this Agreement without obtaining the
prior written consent of the other party hereto to (i) any person who directly
or indirectly acquires (whether in a single transaction or a series of related
transactions) (a) all or substantially all of the assets of the Company or (b) a
majority of the outstanding capital stock of the Company or (ii) any direct or
indirect wholly-owned subsidiary of the Company. Any purported assignment in
violation of this Agreement shall be void.
3.4 Amendment. This Agreement may be amended or modified only by an
instrument in writing duly executed by the parties to this Agreement.
3.5 Waivers. Any waiver by any party hereto of any breach of or failure
to comply with any provision of this Agreement by any other party hereto shall
be in writing and shall not be construed as, or constitute, a continuing waiver
of such provision, or a waiver of any other breach of, or failure to comply
with, any other provision of this Agreement.
3.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute a single instrument.
3.7 Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no agreements, representations, warranties or covenants other
than those expressly set forth herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
3.8 Provisions Separable. The provisions hereof are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or
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unenforceable by virtue of the fact that for any reason any other or others of
them may be invalid or unenforceable in whole or in part. If any provision
hereof, or the application thereof to any situation or circumstance, shall be
invalid or unenforceable in whole or in part, then the parties shall seek in
good faith to replace any such legally invalid provision or portion thereof with
a valid provision that, in effect, will most nearly effectuate the parties'
intentions in entering into this Agreement. If the parties are not able to agree
on a substitute provision within 30 days after the provision initially is
determined to be invalid or unenforceable, then the parties agree that the
invalid or unenforceable provision or portion thereof shall be reformed pursuant
to Section 3.13 (Arbitration) and the new provision shall be one that, in
effect, will most nearly effectuate the parties' intentions in entering into
this Agreement.
3.9 Headings; Index. The headings of paragraphs and Sections herein are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement. The words
"herein," "hereof," "hereto" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Article, Section or
other subdivision.
3.10 Governing Law. This Agreement shall be governed by and construed,
interpreted and applied in accordance with the laws of the State of Texas,
excluding any choice-of-law rules that would refer the matter to the laws of
another jurisdiction.
3.11 Survival. The covenants and agreements of the parties set forth in
this Article III are of a continuing nature and shall survive the expiration,
termination or cancellation of this Agreement, regardless of the reason
therefor.
3.12 Voluntary Agreement. The Executive acknowledges that he has had
sufficient time and opportunity to read and understand this Agreement and to
consult with his legal counsel and other advisors regarding the terms and
conditions set forth in this Agreement.
3.13 Arbitration. Unless otherwise provided in this Agreement, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, including the validity or enforceability of this Section 3.13, shall be
settled by arbitration in Dallas, Texas, (unless the Company and the Executive
agree upon another location) before three arbitrators in accordance with the
rules then in effect of the American Arbitration Association. The Company and
the Executive shall each, within 30 days from the date of the demand for
arbitration, designate one arbitrator, and such designated arbitrators shall
mutually agree on, and shall designate, a third arbitrator; provided, however,
that, failing such agreement within 30 days after their appointment, the third
arbitrator shall be named by the American Arbitration Association. Should any of
the arbitrators appointed die, resign, refuse or become unable to act before a
decision is given, the vacancy shall be filled by the method set
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forth above for the original designation. The Company and the Executive shall
each pay the fees and expenses of their respectively designated arbitrators and
shall bear equally the fees and expenses of the third arbitrator. The written
final decision of the majority of the arbitrators shall be furnished to the
Company and the Executive in writing and shall binding upon the Company and the
Executive and shall not be contested by either of them. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officer or has
signed this Agreement on his behalf, as applicable, as of the day and year first
above written.
/s/ Xxxxxx X. XxXxxxx
------------------------------
XXXXXX X. XxXXXXX
COMMERCIAL METALS COMPANY
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: XXXXXXX X. XXXXX
Title: President and
Chief Executive Officer
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FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT entered into as of
September 1, 1999, (the "AGREEMENT") by and between Commercial Metals Company, a
Delaware corporation (the "COMPANY"), and Xxxxxx X. XxXxxxx (the "EXECUTIVE") is
made this 10th day of July, 2000.
RECITALS:
WHEREAS, the Company and the Executive entered into the Agreement as of
September 1, 1999; and
WHEREAS, the Company and the Executive wish to amend the Agreement to
provide for loans from the Company for certain of the Executive's relocation
expenses;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Company and Executive agree to amend the Agreement as
follows:
Paragraph 1.4(i) is hereby omitted in its entirety. The following new
Paragraph 1.4(i) is substituted thereof:
(i) Mortgage Relocation Loan and Other Relocation Expense Loan. In
connection with the Executive's relocation from Australia to
the Dallas headquarters office, the Company shall loan to the
Executive a total of Six Hundred Seventy Five Thousand Dollars
($675,000.00) of which Three Hundred Eighty-Five Thousand
Dollars ($385,000.00) shall be used solely for the purpose of
the payment of a portion of the purchase price of a new
principal residence by the Executive. This mortgage relocation
loan shall be secured by a second lien mortgage on the
Executive's new principal residence and shall be due and
payable in five annual equal installments of Seventy Seven
Thousand Dollars ($77,000.00) to be deducted from Executive's
net after tax annual bonus payments as may be paid by the
Company to Executive in October of each year commencing in
October, 2001. Should any annual bonus payment due Executive
not equal any installment then due, the unpaid balance of that
installment shall be added to and shall be due at the time of
the next year's installment, provided that all the remaining
unpaid balance shall become due and payable on October 31,
2005. The unpaid balance of the mortgage relocation loan shall
become due and payable in full within 120 days of the
termination of the Executive's employment with the Company for
any reason or upon sale of the residence. The mortgage
relocation loan shall not be transferable to a subsequent
purchaser of the Executive's principal residence. In
connection with the mortgage relocation loan, the Executive
hereby certifies to the Company that the Executive reasonably
expects to be entitled to and will
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itemize deductions in calculating the Executive's Federal
Income Tax liability for each year the loan is outstanding. It
is the intent of the Company and the Executive that this loan
shall meet the requirements of regulations set forth under the
Internal Revenue Code of 1986 (the "Code") Section
1.7872-5T(b)(6) and (c)(1) so as to qualify as an employee
relocation loan exempt from the application of Code Section
7872.
In addition to the mortgage relocation loan, the
Company shall loan the Executive an additional Two Hundred
Ninety Thousand Dollars ($290,000.00) for other relocation
expenses to be drawn down periodically as requested by
Executive on or after July 10, 2000. A portion of the proceeds
of this other relocation expense loan shall be used by
Executive to repay in full on or before August 31, 2000, the
outstanding principal and interest on the loan from CMC
Australia Pty. Ltd. to the Executive in the unpaid principal
amount of $A 150,000.00 as of October 13, 1999, secured by
real property owned by Executive located at 000 Xxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxx Xxx XXX Xxxxxxxxx, (the "Australian
Property") as evidenced by a second mortgage note dated the
6th day of June, 1994. This other relocation expense loan
shall be evidenced by an appropriate promissory note providing
for payment of accrued interest and ten equal payments of
principal, each in the amount of Twenty-Nine Thousand Dollars
($29,000.00), to be deducted from Executive's net after tax
annual bonus payment as may be paid by the Company to
Executive in October of each year commencing in October, 2001.
Should any annual bonus payment due Executive not equal the
installment then due, the unpaid balance of principal only
shall be added to the next year's installment with all the
remaining unpaid principal balance and accrued interest due
and payable on or before October 31, 2010. All accrued
interest for each period preceding a installment payment date
shall be paid by Executive no later than October 31 of each
year either by deduction from Executive's net after tax annual
bonus payment or directly by Executive if the bonus payment is
not sufficient. The note evidencing the other relocation
expense loan shall further provide that it shall be due and
payable in full within 120 days of the termination of the
Executive's employment with the Company for any reason.
Furthermore, the note shall provide for interest at a rate
equal to the one-year United States Treasury constant maturity
rate for the month of July, 2000, as published by the Federal
Reserve Board of Governors plus one percent (1%) and shall be
adjusted commencing September 1, 2001 and annually each
September 1 thereafter to the then most recently published one
year constant maturity rate for the month of July of each
succeeding year plus one percent (1%). At the option and
expense of the Company, the Executive's obligations under the
note may be secured by a second mortgage note on the
Australian Property.
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Except as specifically provided herein, the Agreement is in all
respects ratified and confirmed, and all the terms, conditions and provisions
thereof shall be and remain in full force and effect for any and all purposes.
From and after the date of this First Amendment, any and all references to the
Agreement shall refer to the Agreement as hereby amended.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date first above written.
/s/ Xxxxxx X. XxXxxxx
------------------------------------
XXXXXX X. XxXXXXX
COMMERCIAL METALS COMPANY
BY: /s/ Xxxxxxx X. Xxxxx
---------------------------------
XXXXXXX X. XXXXX
President and
Chief Executive Officer
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SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
THIS SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT entered into as of
September 1, 1999, as amended July 10, 2000, (the "AGREEMENT") by and between
Commercial Metals Company, a Delaware corporation (the "COMPANY"), and Xxxxxx X.
XxXxxxx (the "EXECUTIVE") is made this 2nd day of October 2000.
RECITALS:
WHEREAS, the Company and the Executive entered into an Employment
Agreement as of September 1, 1999, which was amended by a First Amendment dated
July 10, 2000; and
WHEREAS, the Company and the Executive wish to further amend the
Agreement to provide Executive with funds for unanticipated expenses incurred by
the Executive and related to the Executive's relocation from Australia to the
United States;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Company and Executive agree to amend the Agreement as
follows:
Paragraph 1.4(g) is hereby amended to provide that the amount to be
paid to Executive for miscellaneous costs and expenses, which do not
qualify as reimbursable moving expenses, shall be changed from Twenty
Five Thousand Dollars ($25,000.00) to Fifty Thousand Dollars
($50,000.00). In all other respects Paragraph 1.4(g) remains as
written.
Except as specifically provided herein, the Agreement is in all
respects ratified and confirmed, and all the terms, conditions and provisions
thereof shall be and remain in full force and effect for any and all purposes.
From and after the date of this Second Amendment, any and all references to the
Agreement shall refer to the Agreement as amended by the First and Second
Amendments.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
/s/ Xxxxxx X. XxXxxxx
------------------------------------
XXXXXX X. XxXXXXX
COMMERCIAL METALS COMPANY
BY: /s/ Xxxxxxx X. Xxxxx
---------------------------------
XXXXXXX X. XXXXX
President and
Chief Executive Officer
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