UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): January 28, 2010
Commercial Metals Company
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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1-4304
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75-0725338
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(Commission File Number)
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(IRS Employer Identification No.)
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6565 N. MacArthur Blvd.
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Irving, Texas
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75039
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(Address of Principal Executive Offices)
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(Zip Code)
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(214) 689-4300
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (
see
General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Item 5.02(e)
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Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers
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2010 Employee Stock Purchase Plan
.
At the annual meeting of stockholders of Commercial Metals Company (the “Company”), held on
January 28, 2010 (the “Annual Meeting), the stockholders of the Company approved the Company’s 2010
Employee Stock Purchase Plan (the “ESPP”). The ESPP was adopted, subject to stockholder approval,
by the board of directors of the Company (the “Board”) on November 23, 2009, and described in the
Company’s definitive proxy statement for the Annual Meeting.
The ESPP provides that each year during the term of the ESPP, unless the Compensation
Committee of the Board determines otherwise, the Company will, through one or more specified
periods throughout the year (“Offering Periods”), make an offer to each eligible employee of the
Company and its subsidiaries (the “Eligible Employees”) of options to purchase the Company’s common
stock at a discount through accumulated payroll deductions. Eligible Employees may participate by
executing and delivering a subscription agreement. Through such subscription agreements, each
Eligible Employee will be entitled to purchase a dollar amount or percentage of compensation of
shares of common stock or a specific number of shares. Furthermore, no Eligible Employee will be
granted an option that permits such employee to accrue rights to purchase shares of common stock at
an annual rate that exceeds $25,000 worth of the Company’s common stock (determined on the date of
grant of such option), pursuant to the ESPP.
The option price for each Offering Period will be determined by the Compensation Committee and
will not be less than (i) eighty-five percent (85%) of fair market value on the date of grant or
(2) eighty-five percent (85%) of fair market value on the date the option is exercised, whichever
is lower. The date of grant will be determined by the Compensation Committee. The expiration date
of the options will be determined for each Offering Period by the Compensation Committee, but will
not in any event be later than twenty-seven (27) months from the date of grant of the option. The
fair market value of the Company’s common stock as of the date of grant and the date of exercise
will be determined by a reasonable method or procedure established by the Compensation Committee
and complying with the applicable rules under Section 423 of the Internal Revenue Code of 1986, as
amended (the “Code”).
The ESPP will be administered by the Compensation Committee, or such other committee of the
Board as may be designated. Subject to certain adjustments, no more than 5,000,000 shares of the
Company’s common stock may be sold pursuant to the ESPP. The ESPP continues until January 31, 2020
or until all of the Company’s shares of common stock reserved for the purposes of the ESPP have
been subscribed for and sold, whichever is earlier; however, the Board has the power to alter,
amend, suspend, or terminate the ESPP or any part thereof or any option thereunder at any time as
it may deem proper and in the Company’s best interests.
The ESPP is a tax qualified plan under Section 423 of the Code. In general, under a qualified
ESPP, the employee does not have a taxable event at the time of grant of an option or at the time
of exercise of an option, but will realize taxable income at the time such employee sells the
shares. Shares of common stock acquired pursuant to the ESPP may be eligible for favorable federal
income tax treatment if such shares are held by the employee for certain holding periods.
Each executive officer qualifies for participation under the ESPP and may be eligible, along
with all other Eligible Employees, to annually purchase the Company’s common stock at a discount
below the market price. However, participation in the ESPP is voluntary and dependent upon each
executive officer’s election to participate. Further, the benefit of participating will depend on
the terms of the offerings (if any), the fair market value of the stock on the date of grant and
the exercise day, and the length of time the employee holds onto such shares of common stock.
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The ESPP is filed as Exhibit 10.1 to this Form 8-K and is incorporated by reference. The
description of the material terms of the ESPP is qualified in its entirety by reference to such
exhibit.
Amendment to the 2006 Long-Term Equity Incentive Plan
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At the Annual Meeting, the stockholders also approved an amendment (the “Equity Plan
Amendment”) to the Company’s 2006 Long-Term Equity Incentive Plan (“2006 Equity Plan”). The Equity
Plan Amendment was adopted, subject to stockholder approval, by the Board on November 23, 2009, and
described in the Company’s definitive proxy statement for the Annual Meeting.
The 2006 Equity Plan provides for the granting of stock options, stock appreciation rights,
restricted stock, restricted stock units, performance awards, and other awards which may be paid in
cash or stock. Employees whose judgment, initiative and efforts contribute to or may be expected
to contribute to the successful performance of the Company are eligible to participate in the 2006
Equity Plan. The Compensation Committee, upon its own action, may grant, but shall not be required
to grant, an award to any employee of the Company or any subsidiary.
The Equity Plan Amendment (i) increases the number of shares of common stock available for
awards under the 2006 Equity Plan from 5,000,000 shares to 10,000,000 shares, (ii) adds certain
restrictions to the share reuse provisions of the 2006 Equity Plan, (iii) places limitations on the
number of “full value awards” that may be granted pursuant to the 2006 Equity Plan, (iv) reduces
the maximum term of any award to seven (7) years from ten (10) years, and (v) removes a restriction
requiring a reduction in the term of an award due to a termination of service.
The 2006 Equity Plan is administered by the Compensation Committee, or such other committee of
the Board as may be designated. The 2006 Equity Plan will terminate on December 1, 2016, or
earlier upon action of the Board. Awards made prior to termination may extend beyond that date.
In no event will any award be exercisable after the expiration of seven (7) years from the date of
grant.
The Company’s management, including the Company’s executive officers, are potentially eligible
for awards under the 2006 Equity Plan; however, the future benefits of such awards are not
currently determinable.
The Equity Plan Amendment is filed as Exhibit 10.2 to this Form 8-K and is incorporated by
reference. The description of the material terms of the Equity Plan Amendment is qualified in its
entirety by reference to such exhibit.
Amendment to the Commercial Metals Company 1999 Non-Employee Director Stock Plan
At the Annual Meeting, the stockholders also approved an amendment (the “Director Stock Plan
Amendment”) to the Company’s 1999 Non-Employee Director Stock Plan, Second Amendment and
Restatement (the “1999 Director Stock Plan”). The Director Stock Plan Amendment was adopted,
subject to stockholder approval, by the Board on December 14, 2009, and described in the Company’s
definitive proxy statement for the Annual Meeting.
The 1999 Director Stock Plan provides for the annual automatic grant of either (i)
non-qualified stock options or (ii) the choice of restricted stock or restricted stock units, as
elected by each outside director. In addition, the 1999 Director Stock Plan provides each
participant with the opportunity to elect to receive restricted stock units in lieu of all or part
of the cash fees otherwise payable to him or her during a calendar year. Only individuals who are
outside directors at the beginning of a calendar year, or become outside directors after the
beginning of a calendar year, are eligible to participate in the 1999 Director Stock Plan. An
individual who becomes an outside director after the beginning of a calendar year will be
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granted a reduced amount of shares subject to options, shares of restricted stock or
restricted stock units based on the number of days such individual serves as an outside director
during that year.
Subject to certain adjustments, the number of the Company’s shares of common stock that may be
issued pursuant to awards under the 1999 Director Stock Plan is 800,000 shares. The 1999 Director
Stock Plan is administered by the Nominating and Corporate Governance Committee of the Board, or
such other committee of the Board as may be designated.
The Director Stock Plan Amendment (i) removes certain limitations placed on the option period
during which stock options can be exercised following a termination of service due to death,
disability or retirement and (ii) extends the term of the 1999 Director Stock Plan from January 31,
2010 to January 31, 2015.
The Director Stock Plan Amendment is filed as Exhibit 10.3 to this Form 8-K and is
incorporated by reference. The description of the material terms of the Director Stock Plan
Amendment is qualified in its entirety by reference to such exhibit.
Item 8.01 Other Events
Voting Results
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At the Annual Meeting, the proposals listed below were submitted to a vote of the stockholders
through the solicitation of proxies. The proposals are described in the Company’s definitive proxy
statement for the Annual Meeting. Each of the proposals was approved by the stockholders pursuant
to the voting results set forth below.
Proposal I – The election of three persons to serve as directors until the 2013 annual meeting
of stockholders and until their successors are elected
The three (3) nominees named in the definitive proxy statement were elected to serve as
directors until the 2013 annual meeting and until their successors are elected. Information as
to the vote on each director standing for election is provided below:
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Nominee
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For
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Withheld
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Broker Non-Votes
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Rhys J. Best
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86,805,651
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2,273,833
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13,804,706
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Richard B. Kelson
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86,779,622
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2,299,862
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13,804,706
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Murray R. McClean
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85,614,968
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3,464,516
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13,804,706
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Proposal II – The vote to approve the adoption of the Commercial Metals Company 2010
Employee Stock Purchase Plan
The voting results were as follows:
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Votes For
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Votes Against
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Votes Abstaining
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Broker Non-Votes
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80,759,310
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8,037,807
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282,367
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13,804,706
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Proposal III – The vote to approve an amendment to the Commercial Metals Company 2006
Long-Term Equity Incentive Plan
The voting results were as follows:
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Votes For
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Votes Against
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Votes Abstaining
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Broker Non-Votes
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65,883,843
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22,831,906
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363,735
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13,804,706
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Proposal IV – The vote to approve an amendment to the Commercial Metals Company 1999
Non-Employee Director Stock Plan, Second Amendment and Restatement
The
voting results were as follows:
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Votes For
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Votes Against
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Votes Abstaining
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Broker Non-Votes
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51,171,163
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37,332,915
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575,406
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13,804,706
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Proposal V – The vote to ratify the appointment of Deloitte & Touche LLP as the Company’s
independent registered public accounting firm for the fiscal year ending August 31, 2010
The voting results were as follows:
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Votes For
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Votes Against
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Votes Abstaining
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99,103,934
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3,573,438
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206,818
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are furnished with this Form 8-K.
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10.1
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Commercial Metals Company 2010 Employee Stock Purchase Plan
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10.2
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Amendment Number One to the Commercial Metals Company 2006
Long-Term Equity Incentive Plan
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10.3
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Amendment Number One to the Commercial Metals Company 1999
Non-Employee Director Stock Plan
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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COMMERCIAL METALS COMPANY
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Date: January 28, 2010
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By:
Name:
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/s/ William B. Larson
William B. Larson
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Title:
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Senior Vice President and Chief Financial Officer
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EXHIBIT INDEX
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Exhibit No.
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Description of Exhibit
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10.1
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Commercial Metals Company 2010 Employee Stock Purchase Plan
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10.2
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Amendment Number One to the Commercial Metals Company 2006 Long-Term Equity Incentive Plan
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10.3
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Amendment Number One to the Commercial Metals Company 1999 Non-Employee Director Stock Plan
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Exhibit 10.1
COMMERCIAL
METALS COMPANY
2010 EMPLOYEE STOCK PURCHASE PLAN
Commercial Metals Company, a Delaware corporation (hereinafter
referred to as “
CMC
”) hereby adopts and
establishes the Commercial Metals Company 2010 Employee Stock
Purchase Plan (the “
Plan
”), effective as
of February 1, 2010 upon the terms and conditions
hereinafter stated, subject to approval by its stockholders.
ARTICLE 1
PURPOSE
The purpose of the Plan is to provide employees of CMC and its
Subsidiaries (together with CMC, referred to herein as the
“
Company
”) with an opportunity to
acquire a proprietary interest in CMC. The Plan provides for all
Eligible Employees the option to purchase shares of Common Stock
of CMC through voluntary systematic payroll deductions. The
options provided to Eligible Employees under the Plan shall be
in addition to regular salary, profit sharing, pension, life
insurance, special payments or other benefits related to an
Employee’s employment with the Company. It is the intention
of CMC to have the Plan qualify as an “Employee Stock
Purchase Plan” pursuant to Section 423 of the Code and
the final treasury regulations issued thereunder.
ARTICLE 2
DEFINITIONS
2.1 “
Account
” shall mean the payroll
deduction bookkeeping account maintained by the Company, or by a
record keeper on behalf of the Company, for a Participant
pursuant to
Section 5.3(f)
.
2.2 “
Board
” shall mean the board of
directors of CMC.
2.3 “
Code
” shall mean the United States
Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
2.4 “
Committee
” shall mean the committee
appointed or designated by the Board to administer the Plan in
accordance with
Article 4
of this Plan.
2.5 “
Common Stock
” means the common
stock of CMC, par value $0.01 per share, which CMC is currently
authorized to issue or may in the future be authorized to issue.
2.6 “
Compensation
” shall mean a
Participant’s regular earnings, overtime pay, sick pay and
vacation pay. Compensation also includes any amounts contributed
as salary reduction contributions to a plan qualifying under
Section 401(a) of the Code. Any other form of remuneration
is excluded from Compensation, including (but not limited to)
the following: commissions, incentive compensation, bonuses,
prizes, awards, housing allowances, stock option exercises,
stock appreciation rights, restricted stock exercises,
performance awards, auto allowances, tuition reimbursement and
other forms of imputed income.
2.7 “
Contributions
” shall mean all
bookkeeping amounts credited to the Account of a Participant
pursuant to
Section 5.3(f)
.
2.8 “
Disability
” shall mean that the
Participant, because of a physical or mental condition resulting
from bodily injury, disease, or mental disorder, is unable to
perform his or her duties of employment for a period of three
(3) continuous months, as determined in good faith by the
Committee, based upon medical reports or other evidence
satisfactory to the Committee.
2.9 “
Eligible Employee
” shall mean an
Employee of the Company, other than an Employee who:
(a) has worked for the Company for less than one
(1) year, (b) customarily works twenty (20) hours
or less per week, (c) customarily works for not more than
five (5) months in any calendar year, (d) is an
Ineligible Foreign Employee, or (e) immediately after the
option is granted, owns stock possessing five percent (5%) or
more of the total
1
combined voting power or value of all classes of stock of the
Company, computed in accordance with Section 423(b)(3) of
the Code.
2.10 “
Employee
” shall mean any common
law employee (as defined in accordance with the regulations and
rulings then applicable under Section 3401(c) of the Code)
of the Company.
2.11 “
Ineligible Foreign Employee
” shall
mean an Employee who is a citizen or resident of a jurisdiction
outside of the United States (without regard to whether he or
she is also a citizen of the United States or is a resident
alien (within the meaning of Section 7701(b)(1)(A) of the
Code) who is ineligible to participate in the Plan because
(a) the grant of an option under the Plan to such citizen
or resident of the foreign jurisdiction is prohibited under the
laws of such jurisdiction, or (b) compliance with the laws
of the foreign jurisdiction would cause the Plan to violate the
requirements of Section 423 of the Code.
2.12 “
Participant
” shall mean an
Eligible Employee who has elected to participate in the Plan,
pursuant to a Subscription Agreement, on a form prescribed by
the Committee.
2.13 “
Plan
” shall mean this Commercial
Metals Company 2010 Employee Stock Purchase Plan, as amended
from time to time.
2.14 “
Retirement
” shall mean a
termination of employment solely due to retirement upon or after
attainment of age sixty-five (65), or permitted early retirement
as determined by the Committee.
2.15 “
Subscription Agreement
” shall mean
an agreement in a form approved by and in a manner prescribed by
the Committee, pursuant to which an Eligible Employee may elect
to participate in the Plan. The Subscription Agreement shall
contain the Eligible Employee’s authorization and consent
to payroll deductions. The Subscription Agreement shall comply
with and be subject to the terms and conditions of the Plan.
2.16 “
Subsidiary
” means any corporation
in an unbroken chain of corporations beginning with CMC, if each
of the corporations other than the last corporation in the
unbroken chain owns stock possessing a majority of the total
combined voting power of all classes of stock in one of the
other corporations in the chain.
ARTICLE 3
ELIGIBILITY
For each offering made under the Plan, each Employee who is an
Eligible Employee on the date of grant of an option granted
under such offering, may, as determined and selected by the
Committee in accordance with Section 423 of the Code and
the final treasury regulations issued thereunder, be eligible to
participate in such offering. For each offering, the date of
grant shall be as determined by the Committee. All Eligible
Employees who are granted an option under this Plan shall have
the same rights and privileges.
ARTICLE 4
ADMINISTRATION
The Plan shall be administered by the Committee, which shall be
the Compensation Committee of the Board, unless the Board
appoints a different committee. The Committee shall have full
power and authority to construe, interpret and administer the
Plan, provided that it shall interpret the Plan in accordance
with Section 423 of the Code and the final treasury
regulations issued thereunder. It may issue rules and
regulations for administration of the Plan. It shall meet at
such times and places as it may determine. A majority of the
members of the Committee shall constitute a quorum and all
decisions of the Committee shall be final, conclusive and
binding upon all parties, including the Company, the
stockholders, and Employees.
The Committee shall have the full and exclusive right to
establish the terms of each offering of Common Stock under the
Plan except as otherwise expressly provided in this Plan. The
Committee may delegate such power, authority and rights with
respect to the administration of the Plan as it deems
appropriate to one or more members of the management of the
Company (including, without limitation, a committee of one or
more members of management appointed by the Committee);
provided, however, that any delegation to management shall
conform
2
with the requirements of applicable law and stock exchange
regulations. The Committee may also recommend to the Board
revisions of the Plan.
ARTICLE 5
OPTION
OFFERINGS
5.1 Annual Offerings.
Each year
during the term of the Plan, unless the Committee determines
otherwise, the Company will make one or more offerings in which
options to purchase the Company’s Common Stock will be
granted under the Plan.
5.2 Number Available for
Options.
Subject to adjustments as described
below, no more than 5,000,000 shares of Common Stock may be
sold pursuant to options granted under the Plan. Either
authorized and unissued shares or issued shares heretofore or
hereafter acquired by the Company may be made subject to options
under the Plan. If, for any reason, any option under the Plan
terminates in whole or in part, shares subject to such
terminated option may be again subjected to an option under the
Plan.
5.3 Terms and Conditions of Options.
(a) An option price per share for each offering shall be
determined by the Committee on or prior to the date of grant of
the option, which shall in no instance be less than:
(a) 85% of fair market value of the Common Stock on the
date the option is granted, or (b) 85% of fair market value
of the Common Stock on the date the option is exercised,
whichever is lower. The fair market value on the date on which
an option is granted or exercised shall be determined by such
methods or procedures as shall be established by the Committee
prior to or on the date of grant of the option.
(b) The expiration date of the options granted in each
offering shall be determined by the Committee prior to or on the
date of grant of the options, but in any event shall not be more
than twenty-seven (27) months after the date of grant of
the options.
(c) Each option shall entitle an Eligible Employee to
purchase up to that number of shares which could be purchased at
the option price as the Committee shall determine for each
offering (but not to exceed the amount specified in
Section 423(b) of the Code). Alternatively, or in
combination with setting a maximum number of shares, the
Committee may choose to determine a maximum dollar amount that
could be used to purchase shares for each offering (but not to
exceed the amount specified in Section 423(b) of the Code).
Each Eligible Employee may elect to participate for less than
the maximum number of shares or dollar amount specified by the
Committee. No option may be exercised for a fractional share of
Common Stock.
(d) The term of each offering shall consist of the
following three periods:
(i) an “
Enrollment Period
” during
which each Eligible Employee shall determine whether or not, and
to what extent, to participate by authorizing payroll deductions;
(ii) a “
Payroll Deduction Period
”
during which payroll deductions shall be made and credited to
each Participant’s Account; and
(iii) an “
Exercise Day
” on which
options of Participants will be automatically exercised in full.
The beginning and ending dates of each Enrollment Period and
Payroll Deduction Period and the date of each Exercise Day shall
be determined by the Committee.
(e) Each Eligible Employee who desires to participate in an
offering shall elect to do so by completing and delivering by
the end of the Enrollment Period to the Committee (or such
person designated by the Committee) a Subscription Agreement in
the form (including without limitation, telephonic and
electronic transmission, utilization of voice response systems
and computer entry) prescribed by the Committee authorizing
payroll deductions during the Payroll Deduction Period. Unless
otherwise permitted by the Committee, such Subscription
Agreement shall constitute an election to participate in a
single offering under the Plan.
(f) The Company shall maintain on its books, or cause to be
maintained by a record keeper, a payroll deduction account in
the name of each Participant (an
“
Account
”). The amount or percentage of
Compensation
3
elected to be applied as Contributions by a Participant shall be
deducted from such Participant’s Compensation on each
payday during the Payroll Deduction Period and such payroll
deductions shall be credited to that Participant’s Account
as soon as administratively practicable. Except as provided in
Section 6.1
, a Participant may not make any
additional payments to his or her Account. A Participant’s
Account shall be reduced by any amounts used to pay for the
shares of Common Stock acquired pursuant to the options, or by
any other amounts distributed pursuant to the terms hereof.
(g) On the Exercise Day, the options of each Participant to
which such Exercise Day relates shall be automatically exercised
in full without the need for the Participant to take any action.
(h) Upon exercise of an option, the shares shall be paid
for in full by transfer of the purchase price from the
Participant’s Account to the account of the Company, and
any balance in the Participant’s Account shall be paid to
the Employee in cash or applied to subsequent offerings.
(i) A Participant will have none of the rights and
privileges of a stockholder of the Company with respect to the
shares of Common Stock subject to an option under the Plan until
such shares of Common Stock have been transferred or issued to
the Participant or to a designated broker for the
Participant’s Account on the books of the Company.
(j) An option granted under the Plan may not be transferred
except by will or the laws of descent and distribution and,
during the lifetime of the Participant to whom granted, may be
exercised only for the benefit of the Participant.
(k) No Participant shall be granted an option that permits
the Participant’s rights to purchase Common Stock under all
employee stock purchase plans of the Company to accrue at a rate
which exceeds $25,000 (or such other maximum as may be
prescribed from time to time by the Code) of fair market value
of such Common Stock (determined at the date of grant) for each
calendar year in which such option is outstanding at any time in
accordance with the provisions of Section 423(b)(8) of the
Code.
5.4 Issuance of Shares of Common
Stock.
As soon as administratively practicable
following an Exercise Day, the Company shall deliver to each
Participant a certificate representing the shares of Common
Stock purchased upon exercise of his or her options. The time of
issuance and delivery of the shares of Common Stock may be
postponed for such periods as may be required to comply with
registration requirements under the Securities Act of 1933, the
Securities Exchange Act of 1934, listing requirements of any
exchange on which the shares of Common Stock may then be listed,
and the requirements under other laws or regulations applicable
to the issuance or sale of such shares.
5.5 Revocation of Subscription
Agreement.
At any time prior to an Exercise Day,
a Participant shall have the right to revoke his or her
elections set forth in the Subscription Agreement, on a form and
pursuant to such terms as the Committee may prescribe. The
Company shall, upon receipt of such notice of cancellation,
refund to the Participant, without interest, any amounts
withheld from the Participant in respect of such offering to
acquire shares of Common Stock, as soon as administratively
practicable.
5.6 Modification of Subscription
Agreement.
A Participant may change his or her
elections set forth in a Subscription Agreement by completing
and filing with the Committee (or such person designated by the
Committee), a new Subscription Agreement. Such changes may be
filed with the Committee (or such person designated by the
Committee) prior to the end of the Enrollment Period of the
subsequent offering; such change shall be effective as of the
next occurring date of grant of such subsequent offering. Any
Subscription Agreement made pursuant to this
Section 5.6
shall revoke any then outstanding
Subscription Agreement.
ARTICLE 6
TERMINATION
OF EMPLOYMENT; CHANGE IN ELIGIBLE STATUS
6.1 Unless otherwise provided by the Committee, upon a
Participant’s termination from employment with the Company
for any reason or in the event that a Participant is no longer
an Eligible Employee or if the Participant elects to revoke his
or her Subscription Agreement pursuant to
Section 5.5
, at any time prior to the last day of a
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Payroll Deduction Period of an offering period in which he or
she participates, such Participant’s Account shall be paid,
without interest, to him or her in cash, or, in the event of
such Participant’s death, paid, without interest, to such
Participant’s estate or beneficiary, and such
Participant’s options shall be automatically terminated.
The Committee may provide on an equal basis, upon a
Participant’s termination from employment with the Company
(a) by reason of Retirement, Disability
and/or
death, to permit the exercise of the Participant’s options
at any time within the three (3) month period following
such termination of employment or the Exercise Day, whichever is
earlier. If the Committee permits a Participant to exercise his
or her options following the Participant’s termination of
employment, the Committee may permit the Participant (or his or
her estate or beneficiary) to contribute additional amounts to
the Participant’s Account, if necessary, to exercise the
options up to the full amount or number of shares of Common
Stock subject to such options as subscribed for in the
Subscription Agreement. Notwithstanding the foregoing, if a
Participant’s employment with the Company terminates for
any reason other by reason of Retirement, Disability or death,
such Participant’s Account shall be paid to him or her in
cash, without interest, as soon as administratively practicable.
6.2 A prior termination from employment with the Company shall
not have any effect upon a reemployed Employee’s ability to
participate in any succeeding offering, provided that the
applicable eligibility and participation requirements are again
met.
6.3 For purposes of the Plan, the employment relationship shall
be treated as continuing intact while an individual is on sick
leave or other leave of absence approved by the Company. Where
the period of leave exceeds ninety (90) days and the
individual’s right to reemployment is not guaranteed either
by statute or by contract, the employment relationship will be
deemed to have terminated on the 91st day of such leave.
ARTICLE 7
ADJUSTMENTS
In the event that any dividend or other distribution (whether in
the form of cash, Common Stock, other securities, or other
property), recapitalization, stock split, reverse stock split,
rights offering, reorganization, merger, consolidation,
split-up,
spin-off, split-off, combination, subdivision, repurchase, or
exchange of Common Stock or other securities of the Company,
issuance of warrants or other rights to purchase Common Stock or
other securities of the Company, or other similar corporate
transaction or event affects the fair value of an option, then
the Committee shall adjust any or all of the following so that
the fair value of the option immediately after the transaction
or event is equal to the fair value of the option immediately
prior to the transaction or event (i) the number and type
of shares of Common Stock which thereafter may be made the
subject of options, (ii) the number and type of shares of
Common Stock subject to outstanding options, and (iii) the
grant, purchase or exercise price with respect to any option or,
if deemed appropriate, make provision for a cash payment to the
holder of an option. Notwithstanding the foregoing, no such
adjustment shall be made or authorized to the extent that such
adjustment would cause the Plan or any option to violate
Section 423 of the Code. Such adjustments shall be made in
accordance with the rules of any securities exchange, stock
market, or stock quotation system to which the Company is
subject. Upon the occurrence of any such adjustment, the Company
shall provide notice to each affected Participant of its
computation of such adjustment which shall be conclusive and
shall be binding upon each such Participant.
ARTICLE 8
AMENDMENT
The Committee may, at any time and from time to time, alter,
amend, suspend or terminate the Plan, any part thereof or any
option thereunder as it may deem proper and in the best
interests of the Company; provided, however, that unless the
stockholders of the Company shall have first approved thereof,
(i) the total number of shares for which options may be
exercised under the Plan shall not be increased or decreased,
except as adjusted under
Article 7
, and (ii) no
amendment shall be made which shall allow an option price for
offerings under the Plan to be less than 85% of the fair market
value of the Common Stock on the date of grant of the options or
85% of the fair market value of the Common Stock on the date on
which an option is exercised, if lower.
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Notwithstanding the foregoing, the Committee may adopt and amend
stock purchase sub-plans with respect to Eligible Employees
employed outside the United States with such provisions as the
Committee may deem appropriate to conform with local laws,
practices and procedures, and to permit exclusion of certain
Employees from participation. All such sub-plans shall be
subject to the limitations on the amount of stock that may be
issued under the Plan and, except to the extent otherwise
provided in such plans, shall be subject to all of the
provisions set forth herein.
ARTICLE 9
TERM
The Plan shall be effective from the date that this Plan is
approved by the Board. Unless sooner terminated by action of the
Board, the Plan will terminate on January 31, 2020, and no
offering shall be made hereunder after such date. Further, no
offering hereunder shall be made after any day upon which
participating Employees elect to participate for a number of
shares equal to or greater than the number of shares remaining
available for purchase. If the number of shares for which
Employees elect to participate shall be greater than the shares
remaining available, the available shares shall at the end of
the Enrollment Period be allocated among such participating
Employees pro rata on the basis of the number of shares for
which each has elected to participate.
ARTICLE 10
MISCELLANEOUS
PROVISIONS
10.1 Disqualifying Disposition.
If
a share of Common Stock acquired pursuant to this Plan is
disposed of by a Participant prior to the expiration of two
(2) years from the date of grant of the option relating to
such share or one (1) year from the transfer of such share
to the Participant (a “
Disqualifying
Disposition
”), such Participant shall notify the
Company in writing of the date and terms of such disposition. A
Disqualifying Disposition by a Participant shall not affect the
status of any other option granted under the Plan.
10.2 Expenses of Administration.
No
charge of any kind will be made by the Company against the funds
held in each Participant’s Account other than the
application of the funds to payment for shares of Common Stock
under the Plan. The Company will pay all fees and expenses
incurred by the Company in connection therewith.
10.3 Investment Intent.
The Company
may require that there be presented to and filed with it by any
Participant under the Plan, such evidence as it may deem
necessary to establish that the shares of Common Stock to be
purchased or transferred are being acquired for investment and
not with a view to their distribution.
10.4 No Right to Continued
Employment.
Neither the Plan nor any option
granted under the Plan shall confer upon any Participant any
right with respect to continuance of employment by the Company.
10.5 Indemnification of Board and
Committee.
No member of the Board or the
Committee, nor any officer or Employee of the Company acting on
behalf of the Board or the Committee, shall be personally liable
for any action, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the
Board and the Committee, each officer of the Company, and each
Employee of the Company acting on behalf of the Board or the
Committee shall, to the extent permitted by law, be fully
indemnified and protected by the Company in respect of any such
action, determination, or interpretation.
10.6 Applicable Law.
This Plan and
related documents shall be governed by, and construed in
accordance with, the laws of the State of Delaware. If any
provision shall be held by a court of competent jurisdiction to
be invalid and unenforceable, the remaining provisions of this
Plan shall continue to be fully effective.
6
10.7 Plan Funds.
All amounts held
by the Company in Accounts under the Plan may be used for any
corporate purpose of the Company. No interest will be paid to
any Employee or credited to his or her Account under this Plan.
10.8 Compliance with Governmental Laws and Stock
Exchange Regulations.
The obligation of the
Company to sell and deliver Common Stock under the Plan is
subject to applicable laws and to the approval of any
governmental authority required in connection with the
authorization, issuance, sale or delivery of such common stock.
The Company may, without liability to Participants, defer or
cancel delivery of shares or take other action it deems
appropriate in cases where applicable laws, regulations or stock
exchange rules impose constraints on the normal Plan operations
or delivery of shares.
* * * * * * * * * *
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IN WITNESS WHEREOF
, the Company has caused this
instrument to be executed as of January 28, 2010, by its
Chief Executive Officer and Secretary pursuant to prior action
taken by the Board and the stockholders of the Company.
COMMERCIAL METALS COMPANY
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By:
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/s/ Murray R. McClean
Name: Murray R. McClean
Title: President, Chief Executive Officer,
and Chairman of the Board of Directors
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Attest:
By: /s/ Ann J. Bruder
Name: Ann J. Bruder
Title: Vice President, General Counsel,
and Corporate Secretary
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Exhibit 10.2
AMENDMENT
NUMBER ONE TO THE
COMMERCIAL METALS COMPANY
2006 LONG-TERM EQUITY INCENTIVE PLAN
This AMENDMENT NUMBER ONE TO THE COMMERCIAL METALS COMPANY 2006
LONG-TERM EQUITY INCENTIVE PLAN (this
“
Amendment
”), effective as of
January 28, 2010, is made and entered into by Commercial
Metals Company, a Delaware corporation (the
“
Company
”). Terms used in this Amendment
with initial capital letters that are not otherwise defined
herein shall have the meanings ascribed to such terms in the
Commercial Metals Company 2006 Long-Term Equity Incentive Plan
(the “
Plan
”).
RECITALS
WHEREAS
, Article 9 of the Plan provides that the
Board of Directors of the Company (the
“
Board
”) may amend the Plan at any time;
WHEREAS
, subject to stockholder approval, the Board
desires to amend the Plan to (i) increase the aggregate
number of shares of Common Stock that may be issued or delivered
under the Plan set forth in Article 5 of the Plan,
(ii) add certain restrictions to the share reuse provisions
of the Plan, (iii) place limitations on the number of
“Full Value Awards” that may be granted pursuant to
the Plan, (iv) remove a restriction requiring the Committee
to reduce the Award Period for Participants who have incurred a
Termination of Service; and (v) reduce the Award Period for
Incentives granted under the Plan from ten years to seven
years; and
WHEREAS
, the Board plans to submit the proposal to amend
the Plan to the Company’s stockholders at the 2010 Annual
Meeting of Stockholders.
NOW, THEREFORE
, in accordance with Article 9 of the
Plan, subject to stockholder approval, the Company hereby amends
the Plan as follows:
1. Section 5.1 of the Plan is hereby amended by
deleting said section in its entirety and substituting in lieu
thereof the following new Section 5.1:
5.1 Number of Shares Available for
Awards.
Subject to adjustment as provided in
Articles 11 and 12
and the limitations on Full Value
Awards as provided in
Section 5.3
, the maximum number of
shares of Common Stock that may be delivered pursuant to Awards
granted under the Plan is 10,000,000 shares, of which
2,000,000 shares may be delivered pursuant to Incentive
Stock Options. Subject to adjustment pursuant to
Articles 11 and 12
, no Participant may receive in
any fiscal year of the Company, Awards that exceed an aggregate
of more than 200,000 shares of Common Stock. Shares to be
issued may be made available from authorized but unissued Common
Stock, Common Stock held by the Company in its treasury, or
Common Stock purchased by the Company on the open market or
otherwise. During the term of this Plan, the Company will at all
times reserve and keep available the number of shares of Common
Stock that shall be sufficient to satisfy the requirements of
this Plan.
2. Section 5.2 of the Plan is hereby amended by
deleting said section in its entirety and substituting in lieu
thereof the following new Section 5.2:
5.2 Reuse of Shares.
To the extent
that any Award under this Plan shall be forfeited, shall expire
or be canceled, in whole or in part on or after the Effective
Date, then the number of shares of Common Stock covered by the
Award so forfeited, expired or canceled may again be awarded
pursuant to the provisions of this Plan. Shares of Common Stock
subject to an Award under the Plan may not again be made
available for issuance under the Plan and shall reduce the
number of shares available for future issuances under the Plan
if such shares of Common Stock are (i) shares of Common
Stock that were subject to a Stock Option or a stock-settled SAR
and were not issued upon the net settlement or net exercise of
such Stock Option or SAR; (ii) shares of Common Stock
delivered or withheld by the Company to pay the exercise price
or the withholding tax obligations associated with Awards; or
(iii) shares of Common Stock repurchased by the
1
Company on the open market or otherwise using the proceeds of
the exercise of a Stock Option or stock-settled SAR by a
Participant. Awards that may be satisfied either by the issuance
of shares of Common Stock or by cash or other consideration
shall be counted against the maximum number of shares of Common
Stock that may be issued under this Plan only during the period
that the Award is outstanding or to the extent the Award is
ultimately satisfied by the issuance of shares of Common Stock.
Awards will not reduce the number of shares of Common Stock that
may be issued pursuant to this Plan if the settlement of the
Award will not require the issuance of shares of Common Stock,
as, for example, a SAR that can be settled only by the payment
of cash. Notwithstanding any provisions of the Plan to the
contrary, only shares forfeited back to the Company and shares
canceled on account of termination, expiration or lapse of an
Award, shall again be available for grant of Incentive Stock
Options under the Plan, but shall not increase the maximum
number of shares described in
Section 5.1
above as
the maximum number of shares of Common Stock that may be
delivered pursuant to Incentive Stock Options.
3. Article 5 of the Plan is hereby amended by adding
the following new Section 5.3:
5.3 Limitation on Full Value
Awards.
Subject to adjustment as provided in
Articles 11 and 12
, no more than 7,000,000 of the
shares of Common Stock that may be delivered pursuant to Awards
under
Section 5.1(a)
may be delivered pursuant to
Full Value Awards. For purposes hereof, the term
“
Full Value Award
” shall mean any Award
with a net benefit to the Participant, without regard to any
restrictions such as those described in
Section 6.4(b)
,
equal to the aggregate Fair Market Value of the total shares of
Common Stock subject to the Award. Full Value Awards include
Restricted Stock and Restricted Stock Units, but do not include
Stock Options and SARs.
4. Section 7.1 of the Plan is hereby amended by
deleting said section in its entirety and substituting in lieu
thereof the following new Section 7.1:
7.1 Award Period.
Subject to the
other provisions of this Plan, the Committee may, in its
discretion, provide that an Incentive may not be exercised in
whole or in part for any period or periods of time or beyond any
date specified in the Award Agreement. Except as provided in the
Award Agreement, an Incentive may be exercised in whole or in
part at any time during its term. No Incentive granted under the
Plan may be exercised at any time after the end of its Award
Period. No portion of any Incentive may be exercised after the
expiration of seven (7) years from its Date of Grant.
However, if an Employee owns or is deemed to own (by reason of
the attribution rules of Section 424(d) of the Code) more
than 10% of the combined voting power of all classes of stock of
the Company (or any parent or Subsidiary) 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 (5) years from the Date
of Grant.
5. Except as expressly amended by this Amendment, the Plan
shall continue in full force and effect in accordance with the
provisions thereof.
[
Signature
page to
follow
]
2
IN WITNESS WHEREOF
, the Company has caused this Amendment
to be duly executed as of the date first written above.
COMMERCIAL METALS COMPANY
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By:
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/s/ Murray R. McClean
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Name: Murray R. McClean
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Title: President, Chief Executive Officer,
and Chairman of the Board of Directors
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