Attached files
file | filename |
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EX-32.1 - EX-32.1 - COMMERCIAL METALS Co | d70615exv32w1.htm |
EX-31.1 - EX-31.1 - COMMERCIAL METALS Co | d70615exv31w1.htm |
EX-32.2 - EX-32.2 - COMMERCIAL METALS Co | d70615exv32w2.htm |
EX-31.2 - EX-31.2 - COMMERCIAL METALS Co | d70615exv31w2.htm |
10-Q - FORM 10-Q - COMMERCIAL METALS Co | d70615e10vq.htm |
Exhibit 10.1
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
THIS THIRD AMENDMENT TO THE EMPLOYMENT AGREEMENT entered into as of May 23, 2005 (the
Agreement) by and between Commercial Metals Company, a Delaware corporation (the Employer), and
Murray R. McClean (Executive), first amended as of September 1, 2006, and second amended as of
April 7, 2009, is made this 31st day of December, 2009.
RECITALS:
WHEREAS, the Employer and Executive entered into the Agreement as of May 23, 2005 and amended
the Agreement as of September 1, 2006 and April 7, 2009; and
WHEREAS, the Employer and Executive desire to amend the Agreement to bring the provisions into
compliance with Section 409A of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the
Employer and Executive agree to further amend the Agreement as follows:
1. Paragraph 5.(b) of the Agreement is hereby amended by deleting said paragraph in its
entirety and substituting in lieu thereof the following new Paragraph 5.(b):
(b) BONUS. 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.
The amount of the Bonus shall be determined by, and in the sole discretion of, the
Compensation Committee of the Board of Directors and shall be based upon its
evaluation of Executives performance during the fiscal year and such other factors
or criteria as it may, in its sole discretion, consider. The Bonus, if any, shall
be paid in a lump sum, as soon as practicable following the end of the Employers
fiscal year to which the Bonus relates, but in no event later than November 1
following the end of such fiscal year.
2. Paragraph 6.(d) of the Agreement is hereby amended by deleting said paragraph in its
entirety and substituting in lieu thereof the following new Paragraph 6.(d):
(d) Executive may terminate this Agreement for Good Reason. Prior to
terminating the Agreement for Good Reason, Executive must give Employer thirty (30)
days advance written notice of his intent to terminate for Good Reason and the
grounds therefore, such that Employer has the opportunity to cure and/or rectify
the alleged breach, provided that such notice to terminate must be given no later
than ninety (90) days from the initial existence of such Good Reason condition.
Only if Employer does not cure the alleged breach at the end of thirty (30) days
may Executive terminate for Good Reason.
3. Paragraph 7 of the Agreement is hereby amended by deleting said paragraph in its entirety
and substituting in lieu thereof the following new Paragraph 7:
7. SEVERANCE. Executive shall be entitled to the following compensation upon
termination of his employment resulting from:
(a) TERMINATION RESULTING FROM DEATH OR DISABILITY. In the event
Executives employment is terminated as a result of
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his death or disability, and such termination constitutes a
separation from service under Section 409A of the Internal Revenue Code
of 1986, as amended (the Code), Executive or his estate shall be entitled
to the following:
(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, in addition thereto, Employer shall pay
a lump sum payment of fifty thousand dollars ($50,000.00) to
Executive or his estate;
(ii) a pro-rata share of Bonus in an amount as determined by
the Compensation Committee of the Board of Directors in their sole
discretion, payable no later than November 1 following the end of
Employers fiscal year during which termination occurs;
(iii) pursuant to the terms and conditions of the Employers
Key Employee Long-Term 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;
(iv) to the extent permitted by the terms and conditions of
Employers 1996 Long-Term Incentive Plan or other applicable equity
incentive plan(s) and to the extent authorized by the terms of each
of Executives 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 Executives account attributable to the plan year during
which termination occurs and accelerated full vesting of any
previously unvested Employer contributions to the Executives
account in such plans.
(b) TERMINATION WITHOUT CAUSE BY EMPLOYER OR FOR GOOD REASON BY
EXECUTIVE. In the event Executives employment is terminated without Cause
by the Employer or for Good Reason by the Executive, and such termination
constitutes a separation from service under Section 409A of the Code,
Executive shall be entitled to the following:
(i) lump sum payment of an amount equal to 1.5 times
Executives then current annual base salary;
(ii) a cash payment in lieu of Bonus equal to 1.5 times the
average annual Bonus received by Executive for the five year period
ended with Employers last complete fiscal year prior to
termination without Cause by the Employer or for Good Reason by the
Executive; and
(iii) all those additional amounts described above in 7(a)ii,
iii, iv
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and v.
(c) TERMINATION FOR CAUSE. In the event Executives employment is
terminated for Cause, Executive shall not be entitled to compensation.
(d) TERMINATION WITHOUT CAUSE BY EMPLOYER OR FOR GOOD REASON BY
EXECUTIVE WITHIN TWELVE MONTHS FOLLOWING A CHANGE OF CONTROL. If, within
twelve months following a Change in Control, Executives employment is
terminated by the Employer for any reason other than for Cause, death or
disability or if Executive terminates employment for Good Reason during
such twelve (12) month period, and such termination constitutes a
separation from service under Section 409A of the Code, Executive shall
be entitled to the following:
(i) lump sum payment of two times Executives then current
annual base salary;
(ii) a cash payment in lieu of Bonus equal to two times the
average annual Bonus received by Executive for the five year period
ended with Employers last complete fiscal year prior to the Change
of Control; and
(iii) all those additional amounts described above in 7(a)ii,
iii, iv and v; and
(iv) a continuation of Welfare Benefit Plans (as those terms
are defined in the Employers form Executive Employment Continuity
Agreement, a copy of which was filed with the Securities and
Exchange Commission as Exhibit 10.1 to Commercial Metals Companys
Form 10 Q for the quarter ended February 28, 2006 (the EECAs)),
in which the Executive or his dependents are participating
immediately prior to the Executives termination date. The
Executives participation in the Welfare Benefit Plans shall be for
twenty four (24) months under terms at least as favorable to
Executive as those contained in the EECAs. To the extent such
benefits provided by the Employer are taxable to Executive, such
benefits, for purposes of Section 409A of the Code, shall be
provided as separate monthly in-kind payments of those benefits,
and to the extent those benefits are subject to and not otherwise
exempt from Section 409A of the Code, the provision of the in-kind
benefits during one calendar year shall not affect the in-kind
benefits to be provided in any other calendar year, and the rights
to such in-kind benefits shall not be subject to liquidation or
exchange for another benefit.
(e) EMPLOYERS NON-RENEWAL OF AGREEMENT. In the event, pursuant to
Paragraph 3, the Employer elects not to renew this Employment Agreement,
either at the end of the initial term or any successive one year extension,
Executive shall receive a lump sum payment of one hundred thousand dollars
($100,000.00) upon Executives separation from service.
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(f) PAYMENT OF SEVERANCE. Except as otherwise provided, all lump sum
or cash payments due to Executive pursuant to this Paragraph 7, subject to
Paragraph 17, shall be paid to Executive as soon as practicable following
the date of Executives separation from service, but in no event later than
2 1/2 months following the end of the calendar year in which Executives
separation from service occurs.
4. The Agreement is hereby amended by adding the following new Paragraph 17 to the Agreement:
17. SECTION 409A; DELAY OF SEVERANCE PAYMENTS. To the extent (i) any
post-termination payments to which Executive becomes entitled under this Agreement
or any agreement or plan referenced herein constitute deferred compensation subject
to Section 409A of the Code, and (ii) Executive is deemed at the time of such
termination of employment to be a specified employee under Section 409A of the
Code, then such payment will not be made or commence until the earliest of (x) the
expiration of the six (6) month period measured from the date of Executives
separation from service (as such term is defined in the Treasury Regulations
promulgated under Section 409A of the Code and any other guidance issued under
Section 409A of the Code); and (y) the date of Executives 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 in installments) in the absence of this Paragraph 17 will be paid to
Executive or Executives beneficiary in one lump sum.
5. Except to the extent specifically amended as 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 Third
Amendment, any and all references to the Agreement shall refer to the Agreement as hereby amended.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.
EXECUTIVE | EMPLOYER | |||||||
COMMERCIAL METALS COMPANY | ||||||||
/s/ Murray R. McClean
|
By: | /s/ Robert R. Womack | ||||||
Murray R. McClean
|
Robert R. Womack, Director |
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