<PAGE> 1
As filed with the Securities and Exchange Commission on July 17, 1995
Registration No. 33-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COMMERCIAL METALS COMPANY
-------------------------
(Exact name of issuer as specified in its charter)
Delaware 75-0725338
- ---------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
7800 Stemmons Freeway, Dallas, Texas 75247
------------------------------------ ---------------------------------
(Address of Principal Executive Offices) (Zip Code)
COMMERCIAL METALS COMPANY GENERAL EMPLOYEES' STOCK PURCHASE PLAN
----------------------------------------------------------------
(Full title of the plan)
DAVID M. SUDBURY
Vice President, Secretary and General Counsel
Commercial Metals Company
7800 Stemmons Freeway
Dallas, Texas 75247
-----------------------------------------------------------
(Name and address of agent for service)
(214) 689-4300
------------------------------------------------
(Telephone number, including area code,
of agent for service)
With a copy to:
WILLIAM R. HAYS, III
Haynes and Boone, L.L.P.
3100 NationsBank Plaza
901 Main Street
Dallas, Texas 75202-3789
(214) 651-5000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Title of
securities Proposed maximum Proposed maximum Amount of
to be Amount to be offering price aggregate registration
registered registered per share offering price fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$5.00 Par Value 573,133(1) (1) $15,617,874(1) $5,386(1)
==============================================================================================================================
</TABLE>
(1) For purposes of computing the aggregate offering price and the registration
fee, such computation has been made in accordance with paragraphs (c) and
(h) of Rule 457 on the basis of the average high and low sale prices for
the Company's Common Stock on July 10, 1995, as reported in composite
transactions on the New York Stock Exchange.
________________________________________________________________________________
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Commercial Metals Company (the "Company") hereby incorporates by
reference the following documents filed with the Securities and Exchange
Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended August 31, 1994 (the "1994 Form 10-K");
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 1994;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1995;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended May 31, 1995;
(e) The Company's Current Report on Form 8-K dated November 30,
1994;
(f) The Company's Current Report on Form 8-K dated January 27,
1995;
(g) The description of Common Stock included in the Company's
Registration Statement on Form 8-A as filed with the
Commission on June 18, 1982 and amended on July 17, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment that indicates that all
securities offered hereunder have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date such documents are filed.
Item 5. Interests of Named Experts and Counsel.
Legal Matters
The validity of the shares of Common Stock being sold in this offering
will be passed upon for the Company by David M. Sudbury, general counsel of the
Company.
Experts
The financial statements and the related financial statement schedules
incorporated in this registration statement by reference from the Company's
Annual Report on Form 10-K for the year ended August 31, 1994 have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their reports,
which are incorporated herein by reference, and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law generally provides that a corporation is empowered to
indemnify any person who is made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he is or was a
director, officer, employee or agent of the Company or is or was serving, at
the request of the Company, in any of such capacities of another corporation or
other enterprise, if such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 describes in detail the right of the Company to indemnify any such
person. The Certificate of Incorporation of the Company and indemnification
agreements between the Company and each of its officers and directors provide
generally for indemnification of all such directors, officers and agents to the
fullest extent permitted under law. The Company's Certificate of Incorporation
eliminates the liability of directors to the fullest extent permitted under
law. The Company's directors and officers currently are covered by directors'
and officers' liability insurance.
II-1
<PAGE> 3
For the undertaking with respect to indemnification, see Item 9 herein.
Item 8. Exhibits.
Exhibit No. Exhibit
4.1 - Restated Certificate of Incorporation of Commercial Metals
Company, as amended, filed as Exhibit (3)(i) to the Company's
Form 10-K for the fiscal year ended August 31, 1993 and
incorporated by reference herein.
4.2 - Bylaws of Commercial Metals Company, as amended, filed as
Exhibit (3)(ii) to the Company's Form 10-K for the fiscal year
ended August 31, 1993 and incorporated by reference herein.
*4.3 - Commercial Metals Company General Employees' Stock Purchase
Plan (the "Plan").
*4.4 - Form of Subscription Agreement for use under the Plan.
*5.1 - Opinion of David M. Sudbury with respect to validity of
issuance of securities.
*23.1 - Consent of Deloitte & Touche LLP.
*23.2 - Consent of David M. Sudbury (included in Exhibit 5.1).
*24.1 - Power of Attorney (included on the signature page of the
Registration Statement).
_______________________
* Filed herewith.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement;
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in this registration statement.
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
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<PAGE> 4
(3) to remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE> 5
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on the 17th day of
July, 1995.
COMMERCIAL METALS COMPANY
By: /s/ Stanley A. Rabin
-------------------------------------
Stanley A. Rabin
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Lawrence A. Engels and David M.
Sudbury, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign, execute and file
with the Securities and Exchange Commission and any state securities regulatory
board or commission any documents relating to the proposed issuance and
registration of the securities offered pursuant to this Registration Statement
on Form S-8 under the Securities Act of 1933, including any amendment or
amendments relating thereto, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as he or she might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons on
behalf of the Registrant in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Albert A. Eisenstat Director July 17, 1995
- -------------------------------------------
Albert A. Eisenstat
/s/ Moses Feldman Director July 17, 1995
- -------------------------------------------
Moses Feldman
/s/ Laurence E. Hirsch Director July 17, 1995
- -------------------------------------------
Laurence E. Hirsch
/s/ A. Leo Howell Vice President July 17, 1995
- ------------------------------------------- and Director
A. Leo Howell
</TABLE>
II-4
<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ Walter F. Kammann Director July 17, 1995
- -------------------------------------------
Walter F. Kammann
/s/ Ralph E. Loewenberg Director July 17, 1995
- -------------------------------------------
Ralph E. Loewenberg
/s/ Dorothy G. Owen Director July 17, 1995
- -------------------------------------------
Dorothy G. Owen
/s/ Charles B. Peterson Director July 17, 1995
- -------------------------------------------
Charles B. Peterson
/s/ Stanley A. Rabin President, Chief Executive July 17, 1995
- ------------------------------------------- Officer and Director
Stanley A. Rabin
/s/ Marvin Selig President - Steel Group July 17, 1995
- ------------------------------------------- and Director
Marvin Selig
/s/ Lawrence A. Engels Vice President and July 17, 1995
- ------------------------------------------- Chief Financial Officer
Lawrence A. Engels (Principal Financial Officer)
/s/ William B. Larson Controller (Principal July 17, 1995
- ------------------------------------------- Accounting Officer)
William B. Larson
</TABLE>
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<PAGE> 7
EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- -------
4.1 - Restated Certificate of Incorporation of Commercial Metals
Company, as amended, filed as Exhibit (3)(i) to the Company's
Form 10-K for the fiscal year ended August 31, 1993 and
incorporated by reference herein.
4.2 - Bylaws of Commercial Metals Company, as amended, filed as
Exhibit (3)(ii) to the Company's Form 10-K for the fiscal year
ended August 31, 1993 and incorporated by reference herein.
*4.3 - Commercial Metals Company General Employees' Stock Purchase
Plan (the "Plan").
*4.4 - Form of Subscription Agreement for use under the Plan.
*5.1 - Opinion of David M. Sudbury with respect to validity of
issuance of securities.
*23.1 - Consent of Deloitte & Touche LLP.
*23.2 - Consent of David M. Sudbury (included in Exhibit 5.1).
*24.1 - Power of Attorney (included on the signature page of the
Registration Statement).
_______________________
* Filed herewith.
Exhibit Index Page 1
<PAGE> 1
Exhibit 4.3
COMMERCIAL METALS COMPANY
GENERAL EMPLOYEES' STOCK PURCHASE PLAN
Commercial Metals Company (hereinafter referred to as the "Company")
hereby establishes a plan to be known as the General Employees' Stock Purchase
Plan (hereinafter called the "Plan") under which 573,133 shares of Common Stock
of the Company will be offered for sale to the employees of the Company and its
subsidiaries on an installment payment basis subject to the terms and
conditions contained in the Plan.
SECTION 1. PURPOSES. This Plan has been adopted to continue the
Company's employee benefits program, to create additional incentive, to promote
employee benefits program, to create additional incentive, to promote employee
morale, to attract and retain desirable personnel, and to encourage employee
ownership of the Company's stock.
SECTION 2. SOURCE OF STOCK: All Common Stock issued under the Plan
will be treasury shares owned or to be purchased by the Company, or, if a
sufficient number of treasury shares are not available, authorized but unissued
shares of Common Stock of the Company. A total of 573,133 shares of authorized
but unissued shares are to be reserved for this purpose.
SECTION 3. ADMINISTRATION: The Plan will be administered under
procedures to be established by the Purchase Plan Committee to be established
by the Board of Directors (hereinafter called the "Committee"). The Committee
shall determine in its discretion the time or times and the number of shares
which may be offered for purchase from time to time under this Plan, provided
that the maximum number of shares offered for purchase to each eligible
employee shall not exceed 200 shares in any year.
SECTION 4. EMPLOYEES ELIGIBLE TO PARTICIPATE. Any employee of the
Company or of any subsidiary except those hereinafter noted, will be eligible
to participate in the Plan after having been in the employ of the Company or of
any of its subsidiaries or predecessor companies for at least one continuous
year on the effective date of the Plan, provided that he is then in active
service of the Company or any of its subsidiaries. As new employees complete a
year's service they will be eligible to participate on the first day of January
of each year or at such time or times as the Committee may determine.
Ineligible employees are (a) directors of the Company, (b) any person
who is an "officer" of the Company or any subsidiary or division as that term
is defined by the rules of the Securities and Exchange Commission, (c) persons
eligible to participate in the 1968 Officers' and Key Employees' Stock Option
Plan and (d) any other employees who may be determined to be ineligible because
of
<PAGE> 2
legal restrictions; provided, however, any person excluded because of his
inclusion within one or more of categories (a), (b), and (c) may be included in
the Plan in the discretion of the Committee should it be determined that such
person should be entitled to the benefits of the Plan because of exceptional
meritorious service to the Company.
SECTION 5. METHOD OF PARTICIPATION: Each eligible employee may elect
to purchase within the limits to be prescribed each year by the Committee (but
in any event not less than ten nor more than two hundred shares of the Common
Stock of the Company during each year the Plan is in effect. The election to
purchase such shares shall be made within the 31 days preceding January 1 of
each year or from time to time at such time as may be designated by the
Committee. In order to purchase shares, an application and agreement to
purchase in the form provided for that purpose must be completed by the
employee and delivered to the Committee during such 31 day period. Except as
otherwise provided for herein, an election to purchase so delivered will
constitute a continuing authority for payroll deductions in payment of the
purchase price of the shares so elected to be purchased as provided in
paragraphs 8 and 9. Notice of approval of the application and of the number of
shares allocated in case of oversubscription will be given to each
participating employee.
SECTION 6. DILUTION OR OTHER ADJUSTMENTS: In the event that there is
any change in the stock subject to this Plan through merger, consolidation, or
reorganization, or in the event of any dividend to holders of such stock
payable in stock of the same class or the issuance to such holders of rights to
subscribe to stock of the same class, or in the event of any change in the
capital structure, the Board of Directors shall make such adjustments with
respect to any provisions of this Plan, as it deems equitable to prevent
dilution or enlargement of the employee's rights, and to make appropriate
adjustment in the total number of shares available for the purpose of the Plan.
SECTION 7. PURCHASE PRICE: Applications for purchase will be
date-stamped upon receipt by the Committee. The purchase price of the stock to
the employee will be the average of the mean of the highest and lowest prices
of one share of the Company's Common Stock on the New York Stock Exchange --
Consolidated Tape, or such other reporting services as the Committee may
select, for each of the first ten days in December during which the New York
Stock Exchange is open for business. In the absence of reported sales on any
day the most recent previous day for which sales were reported shall be used in
calculating the ten day average.
SECTION 8. METHOD OF PAYMENT: The Committee shall determine on or
before December 1 of each year the percentage of the purchase price (but in any
event not less than 10% nor more than 50%) which the Company shall contribute
toward the payment of the purchase
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<PAGE> 3
price during the next succeeding year. The employee shall pay that portion of
the purchase price not paid by the Company. Except as hereinafter provided,
the employee's portion of the purchase price for the shares shall be made in
cash in equal installments (with no right of prepayment) by payroll deductions,
from the employee's gross pay for each payroll period beginning after January 1
of each year and ending December 31 of the next year, until the employee's
portion of the purchase price is fully paid.
In the case of employees participating in the Plan who are unable to
authorize payroll deductions under applicable laws, or if any employee has no
pay, or his pay is insufficient (after other authorized deductions) to permit
deduction of his installment payment, such payment shall be made in cash or
check at the office of the Treasurer of the Company. Such payments shall be
due and payable not later than the tenth day immediately following the end of
the payroll period in which the corresponding payroll deductions would have
been made. No interest will be charged to the employee on the unpaid balance
of the purchase price.
The proceeds received by the Company from the sale of shares to
employees under this stock purchase plan shall be used for general corporate
purposes.
SECTION 9. ISSUANCE OF STOCK AND PAYMENT THEREFOR: Upon payment by
the employee of his portion of the purchase price of the stock as set forth in
paragraph 7 above, the Company will pay the balance of the purchase price as
previously determined by the Committee, whereupon the number of shares called
for in the employee's application will be issued to the employee. Within 30
days after payment in full, a stock certificate will be delivered to the
employee or his order by the Company, and the payroll deduction authorization
will be cancelled.
The time of issuance and delivery of the shares may be postponed for
such period as may be required to comply with registration requirements under
the Securities Act of 1933, the Securities Exchange Act of 1934, listing
requirements of the New York Stock Exchange or any other exchange on which the
Common Stock may then be listed and the requirement under other laws or
regulations applicable to the issuance or sale of such shares.
SECTION 10. CANCELLATION OF APPLICATION: At any time prior to
payment in full for his shares, each employee participating int he Plan will
have the right to cancel his application by giving the Company written notice
to that effect. Unless such notice earlier shall be revoked, the Company will
within 30 days of receipt of such notice refund to the employee without
interest the amount theretofore paid by him in respect of such shares and the
shares shall be available again for the purposes of this Plan. In the event
that an employee shall at any time revoke, cancel or suspend
3
<PAGE> 4
his authorization for payroll deductions or any employee shall otherwise fail
to pay any installment within 10 days after its due date without making other
arrangements satisfactory to the Company for discharging his indebtedness such
action shall be equivalent to a notice of cancellation within the meaning of
this paragraph.
SECTION 11. TERMINATION OF PARTICIPATION IN THE PLAN AND SUSPENSION
OF PAYMENTS:
a. Termination of Service by Reason of Retirement or Death: If
an employee's service terminates by reason of his death or retirement after
reaching the normal retirement age or due to disability or other good and
sufficient cause with the written permission of the Company, before his stock
is fully paid for, the employee or his estate, as the case may be, within 90
days after such death or retirement may: (a) receive in cash the net amount
accumulated on his application as a result of deductions from gross pay and/or
payments to the Company; (b) have issued under the application and in
settlement thereof a certificate for such number of whole shares as the net
amount accumulated on the application to the time of the employee's retirement
or death plus the Company's proportionate contribution will purchase at the
time per share provided in Section 7; or (c) pay the balance due under the
application and have issued in settlement thereof a certificate for the entire
number of shares elected to be purchased. Any balance of such shares applied
for but not so purchased shall be available for the purposes of this Plan. Any
adjustment necessary to bring purchases to one or more whole shares shall be
made in cash.
b. Termination of Service Otherwise Than by Death or Retirement:
In the case of an employee's service terminating any other way than by death or
retirement before the stock is fully paid for, his application will be
cancelled and he will be entitled to receive within 30 days cash in the total
amount withheld from his gross pay and/or paid to the Company.
c. Excused Absences: If an employee is granted a leave of
absence, or if his absence from service is excused on account of illness,
disability or entering the armed forces, he may during such period of absence
make payments in cash to the Company, or the payment may be suspended, subject
to any applicable law or governmental regulation, for such period of time not
to exceed more than one year as the Committee in its sole discretion shall deem
reasonable. An employee who is laid off or furloughed involuntarily may be
deemed to be on an excused absence within the meaning of this section int he
discretion of the Committee. Such an employee may cancel his application and
receive in cash the amount to which he would be entitled if his services were
permanently terminated otherwise than by death or retirement.
SECTION 12. RIGHTS NOT TRANSFERABLE: No employee shall sell, assign,
transfer, pledge, or otherwise dispose of or encumber
4
<PAGE> 5
either his right to participate in the Plan or his interest in any share to be
issued upon payment of the amount due, and, except as otherwise provided by
law, such right and interest shall not be liable for or subject to the debts,
contracts, or liabilities of the employee. If any such action is taken by the
employee, or any claim is asserted by any other party in respect of such right
and interest, such action or claim shall be treated as a notice of
cancellation, and the Company, except as may be otherwise required by law, will
make refund to the employee as provided in Section 11 hereof.
SECTION 13. CORPORATE BEARING OF EXPENSES: No charge of any kind
will be made by the Company against the funds held in employee accounts other
than the application of the funds to payment for Common Stock under the Plan.
The Company will pay all fees and expenses incurred by the Company in
connection therewith.
SECTION 14. RIGHTS AS STOCKHOLDER: An employee or his estate will
have no rights as a stockholder with respect to shares under election to
purchase until he becomes a stockholder as herein provided. An employee will
become a stockholder with respect to shares for which payment has been
completed as provided in Section 9 at the close of business on the last
business day of the purchase period. An employee or his estate will become a
stockholder with respect to shares purchased in case of resignation or death at
the time the purchase of such shares becomes effective as provided in Section
11.
SECTION 15. STOCK HELD AS SECURITY FOR AMOUNT TO BE WITHHELD: In the
event that the issuance of any stock to an employee results in additional
compensation to the employee under federal or state laws which require that the
tax thereon be withheld, the Company may continue, after the date provided
herein for issuance of stock, to deduce from his gross pay an amount required
for such withholding. Until such tax is so deducted or otherwise paid by the
employee to the Company, the stock will be held by the Company in issued form
as security for the amount to be withheld and will be delivered to the employee
within 30 days thereafter.
SECTION 16. INDEMNIFICATION OF THE COMMITTEE: Each person who is or
shall have been a member of the Board of Directors or of the Committee shall be
indemnified and held harmless by the Company against and from any and all loss,
cost, liability or expense that may be imposed upon or reasonably incurred by
him in connection with or resulting from any claim, action, suit or proceeding
to which he may be a party or in which he may be involved by reason of any
action taken or failure to act under this Plan and against and from any and all
amounts paid by him in settlement thereof (with the Company's written approval)
or paid by him in satisfaction of a judgment in any such action, suite or
proceeding, except a judgment in favor of the Company based upon a finding of
his bad faith; subject, however, to the condition that upon the institution
5
<PAGE> 6
of any claim, action, suit or proceeding against him, he shall in writing give
the Company an opportunity, at its own expense, to handle and defend the same
before he undertakes to handle and defend it on his own behalf. The foregoing
right of indemnification shall not be exclusive of any other right to which
such person may be entitled as a matter of law or otherwise, or any power that
the Company may have to indemnify him or hold him harmless.
Each member of the Board of Directors or of the Committee, and each
officer and employee of the Company shall be fully justified in relying or
acting upon any information furnished in connection with the administration of
this Plan by any person or persons other than himself. In no event shall any
person who is or shall have been a member of the Board of Directors or of the
Committee, or an officer or employee of the Company be liable for any
determination made or other action taken or any omission to act in reliance
upon any such information, or for any action (including the furnishing of
information) taken or any failure to act, if in good faith.
SECTION 17. AMENDMENT OR TERMINATION OF THE PLAN: The Company
reserves the right to amend, modify, suspend, revoke or terminate the Plan or
any part thereof at any time without notice, provided that no action of the
Board may (a) increase the maximum number of shares which may be sold pursuant
to the Plan, except as provided in paragraph 6, (b) increase the maximum number
of shares which may be offered for sale pursuant to the Plan to any employee,
(c) change the manner of determining the sales price, or, (d) without the
written consent of the employee, materially and adversely affect the rights of
such employee under any effective agreement to purchase or any approved
application.
Subject to the express provisions of the Plan, the Board of Directors
shall also have authority to construe the respective agreements to purchase, to
prescribe, amend and rescind rules and regulations relating to the Plan, to
determine the terms and provisions of the respective agreements to purchase
(which need not be identical) and to make all other determinations necessary or
advisable for administering the Plan. The Board of Directors may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or in
any agreement to purchase int he manner and to the extent it shall deem
expedient to carry it into effect, and it shall be the sole and final judge of
such expediency. The determination of the Board of Directors on such matters
shall be conclusive.
6
<PAGE> 1
EXHIBIT 4.4
EMPLOYEE STOCK PURCHASE APPLICATION AND SUBSCRIPTION AGREEMENT
THIS AGREEMENT by and between COMMERCIAL METALS COMPANY, a Delaware Corporation
(hereinafter called "Company"), and the employee (hereinafter called
"Purchaser") named in the attached Stock Purchase Plan Acknowledgment
(hereinafter called "Acknowledgment").
WITNESSETH:
WHEREAS, the Board of Directors of the Company is of the opinion that the best
interest of the Company and its shareholders will be advanced by encouraging
employees of the Company and its subsidiaries, upon whose judgment, initiative,
and effort the success and development of its business depends, to become
owners of the capital stock in the Company;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants
herein set forth, the parties agree as follows:
I.
Purchaser makes application to the Company and agrees to purchase the number of
shares of the Company's Common Stock at the price set forth on the attached
Acknowledgment pursuant to the terms and conditions of the 1968 General
Employee's Stock Purchase Plan.
II.
Purchaser agrees that payment for the shares shall be made in cash in
substantially equal installments (with no right of pre-payment) each payroll
period by payroll deductions from the Purchaser's gross pay as promptly as is
feasible after January 1, 19___, and ending December 31, 19___. Purchaser
agrees that this application constitutes continuing authority to the Company or
subsidiary by whom Purchaser is employed to deduct such installment payments
from the Purchaser's gross pay until the entire purchase price of the shares is
paid. In the event that the Purchaser may not authorize payroll deductions
under applicable laws, or has no pay, or gross pay insufficient (after
authorized or legally required deductions) to permit deduction of any
installment payment, Purchaser shall make such payment in cash or check to the
Company not later than the 10th day following the end of the payroll period in
which the corresponding payroll deduction would have been made.
III.
The Company agrees that upon payment by the Purchaser of the entire purchase
price set forth in the Acknowledgment, the Company will, within 30 days, issue
a stock certificate for the number of shares purchased to Purchaser and the
payroll authorization will be canceled. The time of issuance and delivery of
shares may be postponed for such period as may be required to comply with
registration requirements under the Securities Act of 1933, the Securities
Exchange Act of 1934, listing requirements of the New York Stock Exchange and
the requirements under other laws or regulations applicable to the issuance or
sale of such shares.
IV.
If there is any change in the capital structure of the Company including
merger, consolidation, a dividend to holders of such stock payable in stock of
the same class or the issuance to such holders of rights to subscribe to stock
of the same class, the Board of Directors of the Company shall make such
adjustments as it deems equitable to prevent dilution or enlargement of the
Purchaser's rights.
V.
Purchaser will have the right to cancel this application at any time prior to
payment in full, by giving the Company written notice of cancellation. The
Company will, within 30 days of receipt of cancellation notice, refund to the
Purchaser without interest, the amount paid in respect of such shares. In the
event that Purchaser shall at any time revoke, cancel or suspend this
authorization for payroll deductions or shall otherwise fail to pay any
installment within 10 days after its due date, such action shall be equivalent
to a notice of cancellation.
VI.
If the Purchaser's service terminates by reason of retirement after reaching
normal retirement age, disability, or death, (each of the foregoing events
hereinafter called an "Authorized Termination") before the stock is fully paid
for, the Purchaser or
<PAGE> 2
Purchaser's estate, as the case may be, within 90 days after such Authorized
Termination, may: (a) receive in cash the net amount accumulated under this
Agreement as a result of deductions from gross pay or payments to the Company,
or; (b) have issued a certificate for the number of whole shares as the net
amount accumulated to the time of such Authorized Termination will purchase at
the price per share provided in the Acknowledgment, or; (c) pay the entire
balance due and have issued a certificate for the entire number of shares
purchased. Any adjustment necessary to bring purchases to one or more whole
shares shall be made in cash. If Purchaser's employment by the Company or its
subsidiary terminates for any reason other than by Authorized Termination
before the stock is fully paid for, this application will be canceled and
Purchaser will be entitled to receive, within 30 days, cash in the total amount
withheld from Purchaser's gross pay and/or paid to the Company under this
Agreement.
VII.
Purchaser may not sell, assign, transfer, pledge, or otherwise dispose of or
encumber either Purchaser's right to purchase or interest in any shares to be
issued upon payment of the amount due, and except as otherwise provided by the
law, such right and interest shall not be liable for or subject to debts,
contracts, or liabilities of the Purchaser. If any such action is taken by
Purchaser, or any claim is asserted by any other party in respect of such right
and interest, such action or claim shall be treated as a notice of
cancellation, and the Company, except as may be otherwise required by law, will
refund the Purchaser's entire contribution.
VIII.
Purchaser will have no rights as a shareholder with respect to shares purchased
hereunder until Purchaser becomes a shareholder. Purchaser will become a
shareholder with respect to shares for which payment has been completed at the
time the certificate for the shares is issued.
IX.
In the event that the issuance of any stock to Purchaser results in additional
compensation under federal or state laws which require that the tax thereon be
withheld, the Company may deduct from Purchaser's gross pay either periodically
or in lump sum an amount required for such withholding. Until such tax is paid
the stock will be held by the Company in issued form as security for the amount
to be withheld and will be delivered to the Purchaser within 30 days
thereafter.
X.
Any notice to the Company under this Agreement shall be addressed to its
Secretary at P. O. Box 1046, Dallas, Texas 75221, or to the Purchaser at the
address on the attached Acknowledgment. Either party shall notify the other in
writing of a new address.
This Agreement is effective on the date set forth on the attached
Acknowledgment.
X_____________________________
Purchaser's Signature
COMMERCIAL METALS COMPANY
BY: ______________________________________
President
<PAGE> 1
[EXHIBIT 5.1 - GENERAL EMPLOYEES' STOCK PURCHASE PLAN]
July 17, 1995
Commercial Metals Company
7800 Stemmons Freeway
Dallas, Texas 75247
Gentlemen:
I have acted as counsel to Commercial Metals Company, a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of 573,133 shares of Common Stock, par
value $5.00 per share (the "Common Stock"), of the Company that may be issued
in the future under the Commercial Metals Company General Employees' Stock
Purchase Plan (the "Plan").
In connection therewith, I have examined (i) the Restated Certificate
of Incorporation and the Bylaws of the Company, each as amended; (ii) minutes
and records of the corporate proceedings of the Company with respect to the
adoption of the Plan and related matters; (iii) the Plan and the forms of award
agreements pertaining thereto; (iv) the Registration Statement and exhibits
thereto; and (v) such other documents as I have deemed necessary for the
expression of the opinion contained herein.
Based upon the foregoing, and having due regard for such legal
considerations as I deem relevant, assuming that the cash consideration
received by the Company in exchange for the issuance of Common Stock under the
Plan equals or exceeds the par value of such Common Stock, I am of the opinion
that the 573,133 shares of Common Stock covered by the Registration Statement
that may be issued from time to time in accordance with the terms of the Plan
have been duly authorized for issuance by the Company, and, when so issued in
accordance with the terms and conditions of the Plan, will be validly issued,
fully paid and nonassessable.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
reference to me under the captions, "Legal Matters" in the Prospectus forming a
part of the Registration Statement and "Item 5. Interests of Named Experts and
Counsel" in the Registration Statement.
<PAGE> 2
Commercial Metals Company
July 17, 1995
Page - 2 -
Very truly yours,
David M. Sudbury
General Counsel
<PAGE> 1
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Commercial Metals Company on Form S-8 of our reports dated October 19, 1994,
appearing in the Annual Report on Form 10-K of Commercial Metals Company for
the year ended August 31, 1994.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Dallas, Texas
July 17, 1995
