<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 1986 STOCK INCENTIVE 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. . . . . . . . . . 1,177,503(1) (1) $28,212,634(1) $9,729(1)
=============================================================================================================================
</TABLE>
(1) The 1,177,503 shares of Common Stock registered hereby represent the sum of
(i) the maximum number of shares which could be purchased pursuant to
awards made under the Commercial Metals Company 1986 Stock Incentive Plan
(the "Plan") that are now outstanding and (ii) the number of shares of
Common Stock that may be issued under the Plan other than under outstanding
awards, less the number of shares of Common Stock issued or issuable under
the Plan that were previously registered under Registration Statement on
Form S-8 (No. 33-32066), as adjusted for stock dividends declared and paid
on such shares. 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 (i) the prices at which
stock subject to outstanding awards previously granted under the Plan may
be purchased and (ii) 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 with respect to the remaining
shares of Common Stock being registered.
________________________________________________________________________________
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DRAFT: 07/14/95
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
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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.
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 1986 Stock Incentive Plan.
*4.4 - Form of Nonqualified Stock Option 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.
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DRAFT: 07/14/95
(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
(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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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>
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<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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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 1986 Stock Incentive Plan.
*4.4 - Form of Nonqualified Stock Option 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
1986 STOCK INCENTIVE PLAN
1. Purpose.
The 1986 Stock Incentive Plan (the "Plan") is intended to provide a
means of attracting and retaining in the service of Commercial Metals Company
and its participating subsidiaries (collectively, the "Company") key employees
of ability and potential, to encourage such persons to exert their best efforts
on behalf of the Company and to identify their interests more closely with
those of the stockholders. It is intended that these purposes will be effected
through the granting of awards ("Awards"), which may be in the form of stock
options intended to qualify ("Incentive Stock Options") under Section 422A of
the Internal Revenue Code of 1954, as amended (the "Code"), stock options which
are not intended to so qualify ("Non-qualified Stock Options"), Stock
Appreciation Rights, or Performance Awards.
2. Administration.
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board"). The
Committee shall consist of at least three members of the Board who are not
eligible, nor have been eligible for at least one year prior to commencing
service on the Committee, to receive options or other stock awards under any
Company stock plan.
The Committee shall have full power and authority to select the
employees to be granted Awards hereunder at such time, in such amounts, and
upon such terms and conditions as the Committee may prescribe provided that a
maximum number of 50,000 shares may be subject to Awards granted by the
Committee to any individual employee during a single fiscal year of the
Company. All Awards granted hereunder shall be evidenced by written agreements
(which need not be identical). The Committee shall have full power and
authority to interpret and construe the Plan and to establish and amend general
rules and regulations for the administration of the Plan. The Committee's
interpretation and construction of the Plan shall be conclusive and binding
upon all persons. Administrative costs in connection with the Plan shall be
paid by the Company.
3. Participation.
Full-time salaried employees, including employees who are directors,
of the Company shall be eligible for selection to receive Awards hereunder.
4. Shareholder Approval and Effective Date.
Subject to subsequent approval by the stockholders of the Company,
this Plan shall become effective as of November 24, 1986; provided, however,
that if the stockholders shall not approve the Plan at the first Annual Meeting
of Stockholders thereafter, the Plan shall not be effective, and any Awards
made prior thereto shall be null and void or shall, if necessary, be deemed to
have been fully rescinded. Subject to its termination pursuant to Section 11,
the Plan shall remain in effect until all Awards granted hereunder shall have
been exercised, earned, or distributed, or shall have expired or have been
canceled; provided, however, that no Awards hereunder shall be granted after
November 23, 1996.
<PAGE> 2
5. Shares Subject to the Plan.
Subject to adjustment pursuant to Section 9, the total number of
shares of common stock of the Company, $5.00 par value ("Common Stock"), with
respect to which Awards may be granted hereunder shall not exceed 2,972,221.
Should any stock option granted under this Plan expire or terminate
unexercised, in whole or in part, or any Performance Award be forfeited as the
result of an employee's termination of employment, the shares of Common Stock
formerly subject to such Award shall again be available for grant under the
Plan. Shares granted or issued hereunder may be authorized but unissued Common
Stock or shares reacquired by the Company and held in its treasury, as may from
time to time be determined by the Board.
6. Stock Options and Stock Appreciation Rights.
(a) Stock Options. All stock options granted hereunder shall have
the following terms and conditions:
(1) Option Price. The option price for each shall be not
less than its fair market value as determined in accordance with
subsection 10(a) hereof on the effective date of the grant. If an
employee owns or is deemed to own (by reason of the attributable rules
applicable under Section 425(d) of the Code) more than 10% of the
combined voting power of all classes of stock of the Company (or of
any parent or subsidiary corporation of the Company) and an Incentive
Stock Option is granted to such employee, the option price for each
share (to the extent required by the Code at the time of grant) shall
be no less than 110% of the fair market value of a share of Common
Stock on the date such Incentive Stock Option is granted.
(2) Exercise of Stock Options. The Committee, in its sole
discretion, shall prescribe in each written agreement the time or
times at which a stock option shall be exercisable, in full or in
part; provided, however, that no Incentive Stock Option shall be
exercisable during the first twelve months of its term; and, provided
further, that the Committee, in its discretion, may accelerate the
time at which any stock option shall become exercisable.
(3) Exercise Procedures. A stock option shall be exercised
by delivery of written notice of exercise to the Secretary of the
Company and payment of the full option price of the shares for which
the option is being exercised. The option price may be paid:
(i) in cash or be check payable to the order of
the Company, or
(ii) through the delivery of shares of Common
Stock owned by the employee, with an aggregate fair
market value as determined in accordance with
subsection 10(a) hereof, on the date of exercise
equal to the option price, or
(iii) by a combination of (i) and (ii) above.
The Committee may impose such limitations and prohibitions on the use
of shares of Common Stock to exercise a stock option as it deems
appropriate.
(4) Period of Options. The Committee shall prescribe in each
written agreement the period during which a stock option may be
exercised; provided, however, that no stock option shall be granted
for a period of longer than ten years. However, if an employee owns
or is deemed to own (by reason of the attribution rules of Section
425(d) of the Code) more than 10% of the combined
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voting power of all classes of stock of the Company (or any parent or
subsidiary corporation of the Company) and an Incentive Stock Option
is granted to such employee, the term of such Incentive Stock Option
(to the extent required by the Code at the time of grant) shall be no
more than five years from the date of grant.
(5) Special Rules for Incentive Stock Options. To the extent
required for "incentive stock option" treatment under Section 422A of
the Code as in effect at the time of grant (and as thereafter amended
with respect to pre-amendment Incentive Stock Option grants), the
aggregate fair market value of the shares of Common Stock, determined
as of the time the stock option is granted, for which any employee may
be granted Incentive Stock Options under the Plan or any other plan of
the Company in any calendar year, shall not exceed $100,000 (or such
other individual employee grant limit as may be in effect under the
Code at the time the Incentive Stock Option is granted), plus any
unused limit carry-over, as computed in accordance with Section
422A(c)(4) of the Code. To the extent required by the Code for
Incentive Stock Options granted after December 31, 1986, the exercise
of Incentive Stock Options granted under the Plan shall be subject to
the $100,000 calendar year limit as set forth in Section 422A(b)(7) of
the Code, as amended.
(6) Sequential Exercise. Any Incentive Stock Option granted
prior to January 1, 1987, shall provide that it is not exercisable
while there is outstanding (within the means of Section 422A(c)(7) of
the Code) any Incentive Stock Option to purchase stock in the Company
(or any parent, subsidiary, or predecessor corporation) which was
granted to such optionee under the Plan or any other plan before the
granting of the Incentive Stock Option proposed to be exercised.
(b) Stock Appreciation Rights. Concurrently with the granting of
any stock option hereunder, or at any time prior to the exercise, termination,
or expiration of any Non-qualified Stock Option, the Committee may grant Stock
Appreciation Rights relating to such stock option upon such terms and
conditions as it may prescribe, including, but not limited to, stipulating that
Stock Appreciation Rights shall be exercisable only by an optionee subject to
the restrictions of Section 16 of the Securities Exchange Act of 1934 (the
"1934 Act").
All Stock Appreciation Rights granted hereunder shall have the
following terms and conditions:
(1) Exercise. Stock Appreciation Rights shall entitle an
optionee to receive an amount of cash or a number of shares of Common
Stock determined and payable as provided in subsection 6(b)(2) hereof.
Stock Appreciation Rights shall have the same expiration date, and at
any given time shall be exercisable to the same extent, as the related
stock option. An optionee electing to exercise Stock Appreciation
Rights shall give written notice of such election to the Secretary of
the Company. As soon as practicable after receipt of such notice, the
Company shall pay or deliver to the optionee the cash or shares of
Common Stock to which the optionee is entitled. Notwithstanding any
other provision hereof, no Stock Appreciation Right shall be
exercisable during the first six months of its term, except that this
limitation shall not apply in the event the optionee dies or becomes
disabled prior to the expiration of such six-month period.
(2) Amount of Cash or Number of Shares. The amount of
cash or the number of shares which shall be payable upon the exercise
of Stock Appreciation Rights shall be determined by multiplying (i)
that portion, as elected by the optionee, of the total number of
shares which the optionee is entitled to purchase as of the date of
exercise under the related stock option, by (ii) the amount, if any,
by which the fair market value of a share of Common Stock on the date
of exercise as determined in accordance with subsection 10(a) hereof,
exceeds the option price per share under the related stock option on
the date of exercise. The Committee, in its sole discretion, shall
determine the form in which payment shall be made upon the exercise of
Stock Appreciation Rights, whether in cash, or shares of Common Stock,
or a combination thereof; provided, however that no
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<PAGE> 4
fractional shares shall be issued in payment of Stock Appreciation
Rights.
(3) Effect of Exercise. The exercise of Stock
Appreciation Rights shall automatically reduce the number of shares
subject to the related stock option on a share-for-share basis.
Shares related to exercised Stock Appreciation Rights shall not be
available for the grant of further Awards under the Plan.
(4) Expiration and Termination. In the event a stock
option expires or is terminated for any reason, the related Stock
Appreciation Rights shall simultaneously expire or terminate.
(5) Conditions of Exercise. Notwithstanding any other
provisions of the Plan, the Committee may impose such conditions on
exercise of Stock Appreciation Rights (including without limitation,
the right of the Committee to limit the time of exercise periods) as
may be required to satisfy the requirements of Rule 16b-3 (or any
similar or successor rule) under the 1934 Act.
(c) Termination of Employment. In the event an optionee shall
cease to be employed by the Company, such stock option and any related Stock
Appreciation Rights shall be immediately terminated except that:
(1) Death. In the event of death while employed, all
outstanding stock options and any related Stock Appreciation Rights
shall become immediately exercisable (except as limited by subsection
6(a)(5) of this Plan with respect to Incentive Stock Options) and the
estate of the deceased may exercise any outstanding stock options and
any related Stock Appreciation Rights for a period of one year
thereafter or until expiration of the option term (if sooner);
(2) Disability. In the event of termination of
employment as the result of a total and permanent disability, all
outstanding stock options and any related Stock Appreciation Rights
shall become immediately exercisable (except as limited by subsection
6(a)(5) of this Plan with respect to Incentive Stock Options) and an
optionee may exercise any outstanding stock options and any related
Stock Appreciation Rights for a period of one year thereafter or until
expiration of the option term (if sooner); or
(3) Retirement. In the event of termination of service
of the optionee with the Company solely due to retirement at normal
retirement age or permitted early retirement as established by the
Committee (and not due to discharge for cause even if occurring after
attainment of retirement age), the service of the optionee with the
Company shall, for the purpose of this Plan, be deemed as not having
been terminated and the optionee may exercise any outstanding stock
options or any related Stock Appreciation Rights in accordance with
the terms of the agreement granting the stock option or Stock
Appreciation Rights.
Notwithstanding the foregoing provisions of this subparagraph, if an
optionee holds Incentive Stock Options at termination of employment,
the optionee may not exercise such Incentive Stock Options and any
related Stock Appreciation Rights later than 90 days after such
termination of employment or after expiration of the option term (if
sooner).
7. Performance Awards.
Performance Awards consisting of shares of Common Stock may be made
from time to time by the Committee to employees eligible to participate in the
Plan. Performance Awards shall be contingent on the achievement over a period
of not less than one year (the "Performance Period") of such corporation,
division,
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subsidiary, group or other objectives as shall be established by the Committee,
at or as near as practicable to, the beginning of a Performance Period. Such
objectives may be revised by the Committee from time to time during a
Performance Period to reflect significant unforeseen events or changes in
circumstances.
A Performance Award shall be forfeited if the employee does not remain
continuously in the employ of the Company at all times during the applicable
Performance Period. However, the Committee, at the time of a Performance Award
or at any time thereafter, may, in its sole discretion, waive any event of
forfeiture in the event of termination of employment of the employee by reason
of retirement at normal retirement age or permitted early retirement as
established by the Committee (and not due to discharge for cause even if
occurring after attainment of retirement age), or by reason of death, total and
permanent disability, or otherwise.
Following the end of a Performance period, an employee holding a
Performance Award, or such employee's estate, shall be entitled to receive
shares of Common Stock based on the fair market value of the Common Stock on
the payment date and corresponding to the level of achievement of the
objectives for such Performance Period as determined by the Committee. The
Committee may make Common Stock issued pursuant to the Performance Award
subject to forfeiture, in whole or in part, upon the termination of employment
during a specified period of time, as determined by the Committee.
8. Change of Control.
The following acceleration and valuation provisions shall apply in the
event of a "Change of Control" or "Potential Change of Control," as defined in
the Section 8:
(a) In the event of a "Change of Control" as defined in
paragraph (b)(1) of this Section 8, unless otherwise determined by the
Committee or the Board in writing at or after grant but prior to the
occurrence of such Change of Control;
(1) any Stock Appreciation Rights outstanding for
at least 6 months and any stock options awarded under the Plan
not previously exercisable and vested shall become fully
exercisable and vested;
(2) the restrictions and deferral limitations
applicable to any Performance Award under the Plan shall lapse
and such shares and awards shall be deemed fully vested; and
(3) the value of all outstanding Stock Options,
Stock Appreciation Rights, and Performance Awards, shall, to
the extent determined by the Committee at or after grant, be
cashed out on the basis of the "Change of Control Price" (as
defined in paragraph (b)(6) of this Section 8) as of the date
the Change of Control occurs, or such other date as the
Committee may determine prior to the Change of Control.
(b) Definitions.
(1) "Change in Control" means the occurrence of
any one or more of the following events:
(i) any Person (defined below) becomes
the Beneficial Owner (defined below) of securities of
the Company having 20% or more of the total number of
votes that may be cast for the election of directors
of the Company; or
(ii) the shareholders of the Company
approve the sale or other disposal
5
<PAGE> 6
of all or substantially all of the assets of the
Company (including a plan of liquidation or
dissolution) or the merger or consolidation of the
Company with or into another corporation, in
accordance with the requirements of the Certificate
of Incorporation of the Company and applicable law;
or
(iii) as a result of or in connection with
any tender offer, exchange offer, merger or other
business combination, sale of assets or contested
election of directors, or any combination of the
foregoing, the individuals who are directors of the
Company just prior to such event shall cease to
constitute the majority of the Company's Board of
Directors.
(2) A "Person" means any individual, firm,
corporation, partnership, trust or other entity. Two or more
Persons who agree to act together for the purpose of
acquiring, holding, voting, or disposing of securities of the
Company shall be deemed a "Person." Excluded from the
definition of "Person" are the Company and any subsidiaries of
the Company, whether individually or in any combination.
(3) A Person is a "Beneficial Owner" of
securities of the Company if such Person or any of such
Person's Affiliates (defined below) or Associates (defined
below) has or shares, directly or indirectly, through any
contract, arrangement understanding or otherwise, the power to
vote or direct the voting of securities of the Company or the
power to dispose or direct the disposition of securities of
the Company. a Person shall be the Beneficial Owner of
securities of the Company that such Person or any of such
Person's Affiliates or Associates has the right to become the
Beneficial Owner of (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise
of conversion rights, exchange rights, warrants, options or
otherwise.
(4) An "Affiliate" of a specified person is a
Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under
common control with, the Person specified.
(5) An "Associate" of a specified Person is (i)
any corporation or organization (other than the Company or any
subsidiary of the Company) of which such person is an officer
or partner or is, directly or indirectly, the Beneficial Owner
of 10% or more of any class of equity securities, (ii) any
trust or other estate in which such Person has a substantial
beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, or (iii) any
relative or spouse of such Person, or any relative of such
spouse, who has the same home as such Person or who is a
director or officer of the Company or any subsidiary of the
Company.
(6) "Change of Control Price" means the highest
price per share paid in any transaction reported on the New
York Stock Exchange Composite Tape, or paid or offered in any
transaction related to a potential or actual change of control
of the company at any time during the preceding sixty day
period as determined by the Committee, except that, in the
case of Incentive Stock Options and Stock Appreciation Rights
relating to Incentive Stock Options, such price shall be based
only on transactions reported for the date on which the
Committee decides to cash-out such options.
(c) No payment shall be made under this Section 8 which,
when aggregated with other payments made to the employee, would, as
determined by such person(s) as the Committee shall irrevocably
designate at or prior to a Change of Control, result in an excess
payment for which the
6
<PAGE> 7
Company (or, where applicable, a subsidiary, a parent corporation or
an affiliate) would not receive a Federal income tax deduction by
reason of Section 280G of the Code.
9. Adjustments. If at any time while the Plan is in effect or
unexercised Awards are outstanding there shall be any increase or decrease in
the number of issued and outstanding shares of Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split-up, combination, or exchange of shares of Common Stock, then and in
such event:
(i) An appropriate adjustment shall be made in the
maximum number of shares of Common Stock then subject to being awarded
under the Plan, to the end that same proportion of the Company's
issued and outstanding shares of Common Stock shall continue to be
subject to being so awarded; and
(ii) Appropriate adjustments shall be made in the number
of shares of Common Stock and the exercise price per share thereof
then subject to purchase pursuant to each Award previously granted, to
the end that the same proportion of the Company's issued and
outstanding shares of Common Stock in each such instance shall remain
subject to purchase at the same aggregate exercise price.
Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to, the number of or exercise price of shares of
Common Stock then subject to outstanding Awards granted under the Plan.
Without limiting the generality of the foregoing, the presence of
outstanding Awards granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (1) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (2) any merger or consolidation of
the Company; (3) any issue by the Company of debt securities or preferred or
preference stock which would rank above the shares of Common Stock subject to
outstanding Awards; (4) the dissolution or liquidation of the Company (5) any
sale, transfer or assignment of all or any part of the assets or business of
the Company; or (6) any other corporate act or proceeding, whether of a similar
character or otherwise, provided further, again without limiting the generality
of the foregoing, in the event of the complete sale or dissolution of the
Company by reason of liquidation, merger, sale, reorganization, or other
similar event, the Board, in its sole discretion, may give written notice to
the optionees that any Awards granted pursuant to this Plan and remaining
unexercised shall be deemed canceled at the time the event in question occurs
and the optionees shall be entitled to purchase during the thirty (30) day
period preceding the effective date of such event all of the shares of Common
Stock subject to such Awards, without regard to or limitation by any other
provisions of this Plan; and provided further, again without limiting the
generality of the foregoing, that the Plan shall terminate upon the
substitution of another plan for the Plan or the assumption of the Plan by a
corporation other than the Company, provided that any shareholder approval
required with respect to such substitution or assumption is given within the
time limits prescribed therefore.
10. Miscellaneous Provisions.
The following provisions shall apply hereunder:
(a) Fair Market Value. Fair market value of the Common
Stock for purposes of the Plan
7
<PAGE> 8
shall equal the mean of the highest and lowest prices of one share of
the Common Stock on the New York Stock Exchange - Consolidated Tape,
or such reporting services as the Committee may select, on the
appropriate date, or in the absence of reported sales on such day, the
most recent previous day for which sales were reported.
(b) No Right to Continue Employment. Nothing in the Plan
or in any Award confers upon any employee the right to continue in the
employ of the Company or interferes with or restricts in any way the
right of the Company to discharge any employee at any time.
(c) Stockholder's Rights. The holder of a stock option,
Stock Appreciation Right or Performance Award shall have none of the
rights or privileges of a stockholder except with respect to shares
which have been issued. No Award granted hereunder may be sold,
transferred, pledged or disposed of otherwise than by will or the laws
of descent and distribution. A stock option or Stock Appreciation
Right may be exercised during the employee's lifetime only by the
employee to whom granted.
(d) Tax Requirements. The Company shall have the right
to deduct from all amounts hereunder paid in cash, any Federal, state
or local taxes required by law to be withheld with respect to such
cash payments. The employee receiving shares issued upon exercise of
any stock option or Stock Appreciation Right or in payment of a
Performance Award shall be required to pay the Company the amount of
any taxes which the Company is required to withhold with respect to
such shares of Common Stock. Such payments shall be required to be
made prior to the delivery of any certificate representing such shares
of Common Stock. Such payment may be made in cash, by check, or
through the delivery of shares of Common Stock owned by the employee
of fair market value equal to the required withholding payment, or any
combination thereof.
(e) Government Regulations. Notwithstanding any of the
provisions hereof, or of any written agreements evidencing Awards
granted hereunder, the obligation of the Company to sell and deliver
shares shall be subject to all applicable laws, rules and regulations
and to such approvals by any government agencies or national
securities exchanges as may be required. The employee shall agree not
to exercise any stock option or Stock Appreciation Right granted
hereunder, and that the Company shall not be obligated to issue any
shares, if the exercise thereof or if the issuance of shares shall
constitute a violation by the employee or the Company of any provision
of any law or regulation of any governmental authority.
(f) Benefit Plan Computations. Any benefits received or
amounts paid to an employee with respect to any Award granted under
the Plan shall not affect the level of benefits provided to or
received by any employee, or the employee's estate or beneficiary,
pursuant to any employee benefit plan of the Company.
11. Suspension, Termination or Amendment of the Plan.
The Board of Directors may, insofar as permitted by law, from time to
time, suspend or terminate the Plan or amend the Plan in any respect; provided,
however, that without the approval of the stockholders, or except as to
adjustments provided for in Section 9 hereof, no such amendment shall increase
the number of shares which may be granted under the Plan; change the class of
eligible employees, or materially increase benefits accruing to employees under
the Plan; and provided, further, that no such amendment shall, without an
employee's consent, adversely affect the employee's rights with respect to any
outstanding Award.
8
<PAGE> 1
Exhibit 4.4
COMMERCIAL METALS COMPANY
NON-QUALIFIED STOCK OPTION AGREEMENT
1. Grant of Option. Pursuant to the Commercial Metals Company
1986 Stock Incentive Plan (the "Plan") for employees of Commercial Metals
Company, a Delaware corporation and its participating subsidiaries
(collectively the "Company"), the Company grants to
__________________________
an option to purchase from the Company a total of ________ full shares of
common stock, $5.00 par value, of the Company (the "Shares"), at $______ per
share in the amounts, during the periods and upon the terms and conditions set
forth in this Agreement.
2. Time of Exercise. Except only as specifically provided
elsewhere in this Agreement, this option is exercisable on and after
_______________ and until terminated as specified in Section 4 below. The time
of exercise may be accelerated under the terms of the Plan. No part of the
Option may be exercised after the expiration of ten (10) years from the date of
grant.
3. Subject to Plan. This Option and its exercise are subject to
the terms and conditions of the Plan. The defined terms used herein which are
defined in the Plan shall have the same meanings defined for and assigned to
them in the Plan. In addition, this Option is subject to any rules promulgated
pursuant to the Plan by the Board of Directors of the Company or by the
Committee appointed by the Board of Directors to administer the Plan.
4. Term. This Option will terminate at the first of the
following:
(a) 5 p.m. on ____________________.
(b) 5 p.m. on the date which is one year after the date that the
Optionee's employment with the Company terminates for reasons
of disability.
(c) 5 p.m. on the date which is one year after the date that the
Optionee's employment with the Company terminates by reason of
death.
(d) Immediately upon the termination of the Optionee's employment
with the Company for reasons other than death, disability or
authorized retirement.
<PAGE> 2
5. Who May Exercise. During the lifetime of the Optionee, this
Option may be exercised only by the Optionee. If the Optionee dies without
having exercised the Option as to all of the Shares covered thereby, the Option
may be exercised at any time prior to the date specified in Section 4 hereof by
the Optionee's estate or a person who acquired the right to exercise the Option
by bequest or inheritance or by reason of the death of the Optionee, subject to
the other terms of this Agreement, the Plan and applicable laws, rules and
regulations.
6. Manner of Exercise. Subject to such administrative
regulations as the Board of Directors may from time to time adopt, this Option
may be exercised by delivery of written notice to the Secretary of the Company
of the number of shares being purchased and payment of the full option price
for the shares for which the Option is being exercised. The option price may
be paid:
(a) in cash or by check payable to the order of the Company; or
(b) through delivery of shares of Common Stock owned by the
employee, with an aggregate fair market value as determined in
accordance with subsection 10(a) of the Plan, on the date of
exercise equal for the option price; or
(c) by a combination of (a) and (b) above.
7. Non-Assignability. This Option, and any right associated with
this Option, is not assignable or transferable by the Optionee except by will
or by the laws of descent and distribution.
8. No Rights as Shareholder. The Optionee will have no rights as
a shareholder with respect to any shares covered by this Option until the
issuance of a certificate or certificates to the Optionee for the shares. No
adjustment shall be made for cash dividends or other rights for which the
record date is prior to the issuance of such certificate or certificates except
as required by the terms of the Plan.
9. Tax Requirements. The Optionee receiving shares issued upon
exercise of the Option shall be required to pay the Company the amount of any
taxes which the Company is required to withhold with respect to such shares of
Common Stock. Such payments shall be required to be made prior to the delivery
of any certificate representing such shares of Common Stock. Such payment
shall be made in cash, by check or, if permitted, through delivery of shares of
the Company's Common Stock owned by the Optionee of fair market value equal to
the required withholding, or any combination thereof.
<PAGE> 3
10. Law Governing. This Agreement is intended to be performed in
the State of Texas and shall be construed and enforced in accordance with and
governed by the laws of Texas.
11. Date of Grant. The date of grant of this Option is
_______________.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Optionee, to evidence his
consent and approval of all the terms hereof, has duly executed this Agreement,
as of the date specified in Section 11 hereof.
COMMERCIAL METALS COMPANY
BY:______________________________
President
OPTIONEE:
_________________________________
Social Security No.______________
Address:
__________________________________
__________________________________
<PAGE> 1
[EXHIBIT 5.1 - 1986 STOCK INCENTIVE 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 1,177,503 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 1986 Stock Incentive 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 1,177,503 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
