sv8
Registration No. 333-
UNITED STATES
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 registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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75-0725338
(I.R.S. Employer Identification No.) |
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6565 N. MacArthur Blvd.
Irving, Texas
(Address of Principal Executive Offices)
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75039
(Zip Code) |
Commercial Metals Company 2006 Long-Term Equity Incentive Plan
(Full title of the plan)
David M. Sudbury, Esq.
Senior Vice President, Secretary and General Counsel
6565 N. MacArthur Blvd.
Irving, Texas 75039
(Name and address of agent for service)
(214) 689-4300
(Telephone number, including area code, of agent for service)
with copies of communications to:
William R. Hays, III, Esq.
Haynes and Boone, LLP
901 Main Street, Suite 3100
Dallas, Texas 75202
(214) 651-5561
CALCULATION OF REGISTRATION FEE
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Title of securities |
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Amount to be |
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offering price |
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aggregate offering |
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registration fee |
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to be registered |
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registered (1) |
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per share (2) |
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price (2) |
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(2) |
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Common Stock, par
value $0.01 per
share |
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5,000,000 |
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$29.89 |
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$149,450,000.00 |
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$4,588.12 |
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(1) |
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Plus such indeterminate number of shares of Common Stock as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions in accordance
with Rule 416 under the Securities Act of 1933, as amended. |
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(2) |
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The proposed maximum offering price per share and the proposed maximum aggregate
offering price have been estimated solely for the purpose of calculating the registration
fee pursuant to paragraphs (c) and (h)(1) of Rule 457 promulgated under the Securities Act
of 1933, as amended, and are based upon the average of the high price and low prices of the
Common Stock reported on the New York Stock Exchange on March 22, 2007. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I of Form S-8 will be sent or given
to participants in the Commercial Metals Company 2006 Long-Term Equity Incentive Plan as specified
by Rule 428(b)(1) under the Securities Act. In accordance with the instructions to Part I of Form
S-8 such documents will not be filed with the Commission. These documents and the documents
incorporated by reference pursuant to Item 3 of Part II hereof, taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
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 Commission:
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(a) |
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The Companys Annual Report on Form 10-K for the year ended August 31, 2006, filed on
November 8, 2006; |
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(b) |
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The Companys Current Report on Form 8-K, filed on November 8, 2006; |
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(c) |
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The Companys Quarterly Report on Form 10-Q for the quarterly period ended November 30,
2006, filed on January 9, 2007; |
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(d) |
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The description of the Companys common stock, which is contained in the Companys
registration statement on Form 8-A, filed with the Commission on June 18, 1982, as updated
or amended in any amendment or report filed for such purpose; and |
All documents subsequently filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
prior to the filing of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date such documents are filed. Any
statement contained herein or in any document incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained in any other subsequently filed document which also is or
is deemed to be incorporated herein by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed to constitute a part of this registration
statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
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.
The
consolidated financial statements and managements report on the
effectiveness of internal control over financial reporting as of
August 31, 2006, incorporated in this
registration statement by reference from the Companys Annual Report on Form 10-K for the year
ended August 31, 2006 have been audited by Deloitte &
Touche LLP, independent registered public accounting firm, 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 Companys Certificate of Incorporation eliminates the
liability of directors to the fullest extent permitted under law. The Companys directors and
officers currently are covered by directors and officers liability insurance.
For the undertaking with respect to indemnification, see Item 9 herein.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
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*5.1
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Opinion of David M. Sudbury with respect to validity of issuance of securities. |
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*23.1
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Consent of Deloitte & Touche LLP. |
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*23.2
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Consent of David M. Sudbury (included in Exhibit 5.1) |
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*24.1
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Power of Attorney (included on the signature page of the Registration Statement). |
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* |
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Each document marked with an asterisk is 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;
(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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective 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 with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
(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, each filing of the registrants annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plans annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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
Commission such indemnification is against public policy as expressed in the Securities Act 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 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
the Company has caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
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COMMERCIAL METALS COMPANY
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/s/ Murray R. McClean
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By: Murray R. McClean |
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President and Chief Executive Officer |
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Date: March 29, 2007 |
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints each of Murray R. McClean 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 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, including any amendment or amendments relating
thereto (and any additional Registration Statement related hereto permitted by Rule 462(b)
promulgated under the Securities Act, 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 Exchange Act of 1934, this report has been
signed below by the following persons on behalf of the Company and in the capacities and on the
dates indicated:
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/s/ Murray R. McClean
Murray
R. McClean, March 28, 2007
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/s/ Robert D. Neary
Robert
D. Neary, March 9, 2007
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President and Chief Executive Officer
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Director |
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/s/ Stanley A. Rabin
Stanley
A. Rabin, March 28, 2007
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/s/ Dorothy G. Owen
Dorothy
G. Owen, March 9, 2007 |
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Chairman of the Board
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Director |
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/s/ Harold L. Adams
Harold
L. Adams, March 28, 2007
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/s/ J. David Smith
J.
David Smith, March 28, 2007 |
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Director
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Director |
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/s/ Moses Feldman
Moses
Feldman, March 28, 2007
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/s/ Robert R. Womack
Robert
R. Womack, March 9, 2007 |
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Director
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Director |
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/s/ Ralph E. Loewenberg
Ralph
E. Loewenberg, March 28, 2007
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/s/ William B. Larson
William
B. Larson, March 28, 2007 |
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Director
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Vice President and Chief Financial Officer |
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/s/ Anthony A. Massaro
Anthony
A. Massaro, March 9, 2007
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/s/ Leon K. Rusch
Leon
K. Rusch, March 28, 2007 |
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Director
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Controller |
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EXHIBIT INDEX
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*5.1
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Opinion of David M. Sudbury with respect to validity of issuance of securities. |
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*23.1
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Consent of Deloitte & Touche LLP. |
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*23.2
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Consent of David M. Sudbury (included in Exhibit 5.1) |
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*24.1
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Power of Attorney (included on the signature page of the Registration Statement). |