TERMS AND CONDITIONS OF EMPLOYMENT
Exhibit 10.3
TERMS AND CONDITIONS OF EMPLOYMENT
These Terms and Conditions of Employment and Separation (the “Agreement”) are entered into
this 3rd
day of May, 2011 by and between COMMERCIAL METALS COMPANY, a Delaware
corporation (the “Employer” or the “Company”) and Xxxxxxx X. Xxxxx (the “Executive”). The
Employer and Executive are collectively referred to as the “Parties,” and individually as a
“Party.”
R
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C
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T
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S:
WHEREAS, Company desires to employee Executive and Executive desires to be employed by
Company.
WHEREAS, as a condition to eligibility for employment, and to protect the good will and
confidential business information of the Company, the Executive and the Company desire to enter
into this Agreement on the terms stated herein.
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 formalize the terms and conditions of
Executive’s employment with Employer as Senior Vice President and Chief Financial Officer. 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, 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 policies (including the Company’s ethics policies) or lawful
directives of the Company, or any law, rules, or regulations applicable to the Company, including,
but not limited to, those established by the Securities and Exchange Commission, or any
self-regulatory organization having jurisdiction or authority over Executive or the Company or any
willful failure by Executive to inform the Company of any violation of any law, rule or regulation
by the Company or one of its direct or indirect subsidiaries, provided, however, that Cause shall
not include any act or omission of Executive that the Executive reasonably believes, based on the
advice of legal counsel for the Company, is not a violation of any such policies, directives, law,
rules or regulations; (ii) Executive’s willful commission of any 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
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Executive by the Chief Executive Officer of the Company; 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 the Company. Confidential Information means information (1) disclosed
to or known by Executive as a consequence of or through his employment with Employer or Affiliate;
and (2) which relates to any aspect of Employer’s or Affiliate’s business, research, or
development. “Confidential Information” includes, but is not limited to, Employer’s and 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, 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, 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 or 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 Employer’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 Employer 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.
Executive shall give Employer written notice within the guidelines of Section 409A of the
Internal Revenue Code of 1986, as amended (the “IRC”) 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,
continue through August 31, 2013. 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.
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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 Senior Vice President
and Chief Financial Officer is subject to a mandatory retirement age of sixty five (65), and hereby
agrees to same.
5. DUTIES
AND RESPONSIBILITIES. Upon execution of this Agreement, Executive shall
diligently render his services to Employer as Senior Vice President and Chief Financial Officer in
accordance with Employer’s directives, and shall use his best efforts and good faith in
accomplishing such directives. Executive shall report to the President of the Company. 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 $475,000.00 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.
b.
CASH AND EQUITY INCENTIVE. Executive shall be eligible to receive a bonus (the “Bonus”)
for each fiscal year of Employer ending August 31 during the term of this Agreement pursuant to
Employer’s 2006 Cash Incentive Plan, Employer’s discretionary incentive plan, and shall be eligible
to participate in the 2006 Long Term Equity Plan as well as 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 or equity awards shall be determined by, and in the sole discretion of,
Employer’s Board of Directors. The Bonus, if any, shall be paid in a lump sum, as soon as
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.
d. 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 of such plans and
arrangements.
e. VACATION. In accordance with the policies of Employer, Executive shall be entitled 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
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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 Employer 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. Executive’s employment with Employer is “at-will”, meaning that either
Party may terminate this Agreement and the employment relationship at any time, with or without
Cause, or Good Reason. Any termination of Executive’s employment pursuant to this Agreement will
also serve as termination of any and all offices, positions and directorships held by Executive
with the Company and any of its subsidiaries and affiliates. Executive’s employment will terminate
upon his death, or if he is unable to perform the functions of his position with reasonable
accommodation for four (4) consecutive months, or for a total of six (6) months during any twelve
(12) month period. Employer may terminate Executive’s employment at any time without notice for
Cause (in accordance with the provisions of Paragraph 2(b) herein), or, following fourteen (14)
days written notice to Executive, without Cause.
a. Executive may terminate his employment upon ninety (90) days written notice to Employer. In
the event Executive terminates his employment in this manner, he shall remain in Employer’s employ
subject to all terms and conditions of this Agreement for the entire ninety (90) day period,
performing such duties to which Executive may be directed by the Company.
b. 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 [need to double check against EECA] 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 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 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 and; (ii) a pro-rata share of the Bonus in an amount as determined by
Employer’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 the Employer’s 2006 Employee Cash Incentive Plan, payment, at such
time as all other participants in that plan receive payment, of any cash incentive attributable
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to periods during which Executive was employed; (iv) to the extent permitted by the terms
and conditions of Employer’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; and (v)
to the extent permitted by the terms and conditions of the Profit Sharing and 401(k) Plan and
Benefit Restoration Plan maintained by the Employer, crediting of any Employer contribution to the
Executive’s account attributable to the plan year during which termination occurs and accelerated
full vesting of any previously unvested Employer contributions to the Executive’s account in such
plans. 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 or disability.
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 parties), in
the event Executive’s employment is terminated without Cause by the Employer, or for Good Reason 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 releasing all pending or potential claims,
Executive shall be entitled to: (i) an amount equal to two times the Executive’s then-current
annual base salary and (ii) the benefits described above in Paragraph 8(a)(v). If Executive elects
not to renew this Agreement, except for Good Reason, 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.
c. TERMINATION FOR CAUSE. In the event Executive’s employment is terminated for Cause by
Employer or without Good Reason 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.
x. XXXXX OF XXXXXXXXX PAYMENTS. To the extent that any post-termination payments to which
Executive becomes entitled under this Agreement constitute deferred compensation subject to Section
409A of the Internal Revenue Code (IRC), and Executive is deemed at the time of such termination to
be a “specified employee” under said Section 409A, then such payment will not be made or commence
until the earliest of (i) the expiration of the six months period measured from the date of
Executive’s “separation from service” and (ii) the date of Executive’s death following such
“separation from service”. Upon the expiration of the applicable deferral period, any payments
which would have otherwise been made during that period (whether in a single sum or installments)
in the absence of this Paragraph 8(d) will be paid to Executive or Executive’s beneficiary in one
lump sum.
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 and its
Affiliates, will be provided with specialized training on how to perform his duties, and will be
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provided contact with Employer’s and Affiliates’ customers and potential customers throughout the
world. Executive further recognizes and agrees that (a) Employer and its Affiliates have devoted a
considerable amount of time, effort, and expense to develop its Confidential Information, training,
and business goodwill, all of which are valuable assets to the Employer; (b) that Executive will
have broad responsibilities regarding the management and operation of Employer’s and 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 or Affiliates’
Confidential Information and additional information described herein to which Executive will have
access, would cause irreparable harm to the Employer. 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 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 or Affiliates in any location in the
world in which Employer or 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 or any of its 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 or 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 or purchase of substantially all
assets of the Company. 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.
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 as to each offer received by Executive to engage in any
such activity. Executive further agrees to disclose to Employer 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 or any of
its Affiliates, or who were former employees or consultants of Employer or any of its Affiliates
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during the preceding twelve 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 or any of its Affiliates’ then current customers or clients to purchase any products or
services substantially similar to the products or services provided by Employer or 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 or 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 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 or 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 prompt notice to that effect, and
will cooperate with Employer if Employer seeks to obtain a protective order concerning the
Confidential Information. Executive will disclose only such Confidential Information as his
counsel shall advise is legally required.
(ii) Executive agrees to deliver to Employer, at any time Employer 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 or any 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 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 and Affiliates includes matters that Executive
conceives or develops during his employment, as well as matters Executive learns from other
employees of Employer or 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. Executive acknowledges that the restrictions contained in Paragraph 9,
in view of the nature of the Employer and its Affiliates’ global business and Executive’s global
position with the Employer, are reasonable and necessary to protect the Employer and Affiliates’
legitimate business interests, including its Confidential Information, training and business
goodwill, and that any violation of this Agreement would result in irreparable injury to the
Employer. In the event of a breach by the Executive of any provision of
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Paragraph 9, the Employer shall be entitled, in addition to any other remedies that may be
available, to a temporary restraining order and injunctive relief restraining the Executive from
the commission of any breach without the necessity of proving irreparable harm or posting of a
bond, and to recover the Employer’s attorneys’ fees, costs and expenses related to the breach and
any such action to enforce the provisions of Paragraph 9. The existence of any claim or cause of
action by Executive against the Employer, 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.
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, 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, or inventions (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 or any of its Affiliates’ business. Executive acknowledges that all
original works of authorship which are made by Executive (solely or jointly with others) within
the scope of his or her employment, and which are protectable by copyright, are “works made for
hire,” pursuant to the United States Copyright Act (17 U.S.C., Section 101) and are consequently
owned by the Employer or any of its Affiliates. Executive
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further acknowledges that all improvements, discoveries, inventions, trade secrets or other form
of intellectual property is the exclusive property of Employer or any of its Affiliates.
b. Executive hereby waives any rights he/she may have in or to such intellectual property,
and Executive hereby assigns to Employer or any of its Affiliates all right, title and interest in
and to such intellectual property. At Employer’s or any of its 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 or any of its Affiliates may reasonably request, to enable Employer or any of its
Affiliates to secure and exercise its rights to such intellectual property.
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 or any of its
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 or any of its Affiliates (whether or not
confidential) shall be and remain the property of the Employer 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 Employer or any of its 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 or any of its 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:
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Executive:
|
Employer: | |
| 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 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 May
2, 2011 and that the terms of this Agreement shall remain in full force and effect both during
Executive’s employment and where applicable thereafter.
24. GOVERNING
LAW; RESOLUTION OF DISPUTES; WAIVER OF JURY TRIAL. This Agreement shall,
at the choice of the Employer, be construed according to the laws of the State of Texas. All
disputes relating to the interpretation and enforcement of the provisions of this Agreement shall,
be resolved and determined exclusively by the federal or state courts in Dallas County, Texas. EACH
OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, AND EXECUTIVE’S EMPLOYMENT AND COMPENSATION, OR TERMINATION
THEREFROM.
[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 COMPANY | ||||||||
By: /s/ Xxxxxxx X. Xxxxx
|
||||||||
| By: | /s/ Xxxxxx Xxxxxxxx
|
|||||||
| Title: President and Chief Operating Officer | ||||||||
11
