exv10wiiiwy






Exhibit 10(iii)(y)




COMMERCIAL METALS COMPANY




RESTRICTED STOCK UNIT AWARD AGREEMENT



 





(the “Participant”)



has been granted a Restricted Stock Unit Award under this Award Agreement (the “Agreement”) in
accordance with Section 6.6 of the Commercial Metals Company (the “Company”) 2006 Long-Term Equity
Incentive Plan (the “Plan”).




     1. Terms of Award. The number of shares of Common Stock that may be delivered is
__________ (the “Awarded Units”). The Date of Grant is June 3, 2010.



     2. Subject to Plan. This Agreement is subject to the terms of the Plan, and the terms
of the Plan shall control unless they are inconsistent with the provisions of this Agreement. The
capitalized terms used in this Agreement that are defined in the Plan shall have the meanings
assigned to them in the Plan.



     3. Vesting; Timing of Delivery of Shares.




     a. Subject to special vesting and forfeiture rules in this Agreement, provided the
Participant is employed by or providing services to the Company or a Subsidiary on the
applicable vesting date, the Awarded Units shall vest and become payable as follows:




     (i) Second anniversary of the Date of Grant: Fifty percent (50%) of the total
Awarded Units.




     (ii) Fourth anniversary of the Date of Grant: Fifty percent (50%) of the total
Awarded Units.




     b. Notwithstanding the foregoing, all Awarded Units shall automatically become 100%
vested and payable upon (i) death; (ii) Termination of Service as a result of Total and
Permanent Disability; (iii) Termination of Service as a result of retirement on or after
attaining age sixty-two (62); (iv) Termination of Service following the attainment of age
fifty-five (55) and ten (10) years of employment with the Company or any Subsidiary; (v)
Termination of Service following the attainment of age fifty (50) and fifteen (15) years of
employment with the Company or any Subsidiary; or (vi) the occurrence of a Change in
Control.




     c. In the event of vesting of Awarded Units pursuant to Section 3.a., the
Participant’s death, or the occurrence of a Change in Control, upon the earlier of the date
(i) the Awarded Units become vested pursuant to Section 3.a., (ii) the Participant’s
death, or (iii) the Change in Control occurs, or as soon as practical thereafter, but in no
event later than 60 days following such date, the Company shall deliver to the Participant
or the Participant’s personal representative a number of shares of Common Stock equal to the
aggregate number of vested Awarded Units credited to the Participant.




     d. Subject to Section 17.b., in the event of the Participant’s Termination of
Service as a result of (i) Total and Permanent Disability, (ii) retirement on or after
attaining age sixty-two (62); (iii) following the attainment of age fifty-five (55) and ten
(10) years of employment with the



 









 







Company or any Subsidiary, or (iv) following the attainment of age fifty (50) and fifteen (15)
years of employment with the Company or any Subsidiary, the Company shall, upon Termination
of Service, or as soon as practical following such Termination of Service, but in no event
later than 60 days after the Termination of Service, deliver to the Participant or the
Participant’s personal representative a number of shares of Common Stock equal to the
aggregate number of vested Awarded Units credited to the Participant.



     4. Forfeiture of Awarded Units. Awarded Units that do not become vested and payable
in shares of Common Stock in accordance with Section 3 shall be forfeited on the earlier of
the date of the Participant’s Termination of Service or June 3, 2014.



     5. Restrictions on Awarded Units and Rights of a Stockholder. The Participant will
not be treated as a stockholder with respect to any shares of Common Stock covered by this
Agreement until the issuance of a certificate or certificates to the Participant for the shares.
Article 11 of the Plan shall cover any adjustments for dividends or other rights for which the
record date is prior to the issuance of such certificate or certificates. Subject to the
provisions of the Plan, until the date shares of Common Stock are delivered to the Participant
under the Awarded Units (the “Restriction Period”), the Participant shall not be permitted to sell,
transfer, pledge or assign any of the Awarded Units or any shares of Common Stock that may be
delivered under the Awarded Units. All of the rights of the Participant in the Awarded Units and
the Common Stock issued upon vesting of the Awarded Units are subject to Section 16 of this
Agreement.



     6. Book Entry or Certificate Issuance of Shares and Legend. All shares of Common
Stock delivered shall be represented by, at the option of the Company, either book entry
registration in the Company’s direct registration services or by a certificate. If the Common
Stock was not issued in a transaction registered under the federal and state securities laws, all
shares of Common Stock delivered under the Awarded Units that are issued in certificate form shall
bear an restrictive legend and shall be held indefinitely, unless they are subsequently registered
under the federal and state securities laws or the Participant obtains an opinion of counsel,
satisfactory to the Company, that registration is not required. All shares of Common Stock
delivered that are issued in book entry direct registration services form shall be subject to the
same restrictions described in a restrictive legend.



     7. Specific Performance. The parties acknowledge that remedies at law will be
inadequate remedies for breach of this Agreement and consequently agree that this Agreement shall
be enforceable by specific performance. The remedy of specific performance shall be cumulative of
all of the rights and remedies at law or in equity of the parties under this Agreement.



     8. Investment Representation. Unless the Common Stock is issued to him in a
transaction registered under federal and state securities laws, the Participant represents and
warrants that all Common Stock which may be acquired hereunder will be acquired by the Participant
for investment purposes for his own account and not with any intent for resale or distribution in
violation of federal or state securities laws.



     9. Participant’s Acknowledgments. The Participant acknowledges that a copy of the
Plan has been made available for his review by the Company, and represents that he is familiar with
the terms of the Plan, and accepts this Award subject to all the terms of the Plan. The Participant
agrees to accept as binding, conclusive, and final all decisions or interpretations of the
Committee or the Board, as appropriate, upon any questions arising under the Plan or this
Agreement.



     10. Law Governing; Venue. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Texas (excluding any conflict of laws rule or
principle of Texas law that might refer the governance, construction, or interpretation of this
agreement to the laws of another state).



2









 




Any action or proceeding seeking to enforce any provision of, or based on any right arising
out of, this Agreement shall be brought in the courts of the State of Texas, County of Dallas, or,
if it has or can acquire jurisdiction, in the United States District Court for the Northern
District of Texas, and each of the parties irrevocably submits to the exclusive jurisdiction of
each such court in any such proceeding, waives any objection it may now or hereafter have to venue
or convenience of forum, agrees that all claims in respect of the proceedings shall be heard and
determined only in any such court and agrees not to bring any proceeding arising out of or relating
to this Agreement in any other court.




     11. Legal Construction. In the event that any term of this Agreement is
held by a court to be invalid in any respect, the invalid term shall not affect any other term that
is contained in this Agreement and this Agreement shall be construed in all respects as if the
invalid term had never been contained herein.



     12. Entire Agreement. This Agreement together with the Plan supersede any and all
other prior understandings and agreements, either oral or in writing, between the parties with
respect to the subject matter of this Agreement and constitute the sole agreements between the
parties with respect to the subject matter.



     13. Parties Bound. The terms that are contained in this Agreement shall apply to, be
binding upon, and inure to the benefit of the parties and their respective heirs, executors,
administrators, legal representatives, and permitted successors and assigns, subject to the
limitation on assignment set forth in this Agreement.



     14. Modification. No change or modification of this Agreement shall be valid unless
the change or modification is in writing and signed by the parties. However, the Company may
change or modify the terms of this Agreement without the Participant’s consent or signature if the
Company determines that such change or modification is necessary to comply with or be exempt from
the requirements of Section 409A of the Code. In any event, the Company may amend the Plan or
revoke the Awarded Units to the extent permitted by the Plan.



     15. Tax Requirements. The Participant should consult immediately with his own tax
advisor regarding the tax consequences of this Agreement. The Company (or a Subsidiary that is the
Participant’s employer) (for purposes of this Section 15 “Company” includes any applicable
Subsidiary), shall have the right to deduct from all amounts paid in stock, cash or any other form,
any taxes required by law to be withheld in connection with this Award. The Company may also
require the Participant receiving shares of Common Stock to pay the Company the amount of any taxes
that the Company is required to withhold in connection with this Award. Such payments shall be
made when requested by Company and may be required prior to the delivery of any certificate
representing shares of Common Stock. Such payment may be made at the election of the Participant
(i) by the delivery of cash to the Company in an amount that equals (or exceeds, to the extent
necessary to avoid the issuance of fractional shares under (iii) below) the required tax
withholding obligations of the Company; (ii) if the Company, in its sole discretion, so consents in
writing, the actual delivery by the Participant to the Company of shares of Common Stock that the
Participant has not acquired from the Company within six (6) months, with an aggregate Fair Market
Value that equals or exceeds (to avoid the issuance of fractional shares under (iii) below) the
required tax withholding payment; (iii) if the Company, in its sole discretion, so consents in
writing, the Company’s withholding of a number of shares to be delivered upon the vesting of this
Award, with an aggregate Fair Market Value that equals (but does not exceed) the required tax
withholding payment (the “Share Retention Method”); or (iv) any combination of (i), (ii), or (iii).
However, if the Participant is subject to Section 16 of the Securities Exchange Act of 1934, his
withholding obligation under this Section 15 shall be satisfied by the Share Retention
Method, and neither the Company nor the Committee shall have any discretion to permit the
satisfaction of such withholding obligation by any other means.



3









 





     16. Pre-Conditional and Mutual Obligations. The Company’s grant to the Participant of
the Awarded Units is mutually conditioned and dependent on the Participant’s execution, compliance
with, and the enforceability of, the terms of the employment agreement to be executed between
Company and Participant contemporaneously herewith (the “Employment Agreement”). The Employment
Agreement includes restrictive covenants prohibiting the Participant’s solicitation of the
Company’s customers and employees, and the Participant from engaging in competing activities for a
period of time after the Participant’s employment with the Company has ended, as well as requiring
the Participant to maintain and not disclose the Company’s confidential information. Should the
Participant violate any of these provisions in the Employment Agreement, or if all or any part or
application of these restrictive covenants contained in the Employment Agreement is held or found
invalid or unenforceable for any reason whatsoever by a court in connection with any claim or
defense asserted by the Participant, the Participant understands that: (i) the Agreement is
mutually dependent on the enforceability of such provisions and therefore the Participant’s right
to the Awarded Units provided herein shall automatically lapse and be forfeited; and (ii) the
Company shall be entitled to receive back the proceeds from the sale of any Common Stock by the
Participant which was issued to the Participant upon the vesting of the Awarded Units and shall be
entitled to receive back from the Participant any Common Stock which was issued upon the vesting of
the Awarded Units that is still owned by the Participant.



     17. Section 409A; Delay of Payment.




     a. It is intended that the payments and benefits provided under this Agreement will be
exempt from the application of, or comply with, the requirements of Section 409A of the
Code. The Agreement shall be interpreted, construed, administered, and governed in a manner
that effects such intent, and the Company shall not take any action that would be
inconsistent with such intent. Without limiting the foregoing, the payments and benefits
provided under this Agreement may not be deferred, accelerated, extended, paid out or
modified in a manner that would result in the imposition of an additional tax upon the
Participant under Section 409A of the Code.




     b. To the extent (i) any payment to which the Participant becomes entitled under this
Agreement, upon the Participant’s Termination of Service pursuant to Section 3.b.
constitutes deferred compensation subject to Section 409A of the Code, (ii) the Participant
is deemed at the time of such Termination of Service to be a “specified employee” under
Section 409A of the Code, (iii) the Company is publicly traded (as defined in Section 409A
of the Code), and (iv) such payment is subject to the delay provided for herein, then such
payment will not be made or commence until the earlier of (x) the expiration of the six (6)
month period measured from the date of the Participant’s Termination of Service; and (y) the
date of the Participant’s death following such Termination of Service.



     18. Forfeiture or Recovery. Notwithstanding anything to the contrary in the Plan, if
the Committee determines, in its sole discretion, that the Participant has engaged in fraud or
misconduct that relates to, in whole or in part, the need for a required restatement of the
Company’s financial statements filed with the Securities and Exchange Commission, the Committee
will review all incentive compensation awarded to or earned by the Participant, including, without
limitation, any Award under the Plan, with respect to fiscal periods materially affected by the
restatement and may cause to be forfeited any vested or unvested Awards and may recover from the
Participant all incentive compensation to the extent that the Committee deems appropriate after
taking into account the relevant facts and circumstances. Any recoupment hereunder may be in
addition to any other remedies that may be available to the Company under any other agreement or
applicable law, including disciplinary action up to and including termination of employment.



4









 





[Signature Page Follows.]




5









 





     IN WITNESS WHEREOF, this Agreement has been executed by a duly authorized officer of the
Company, and the Participant, to evidence his consent and approval of all the terms of this
Agreement, has duly executed this Agreement, as of the date specified in Section 1 of this
Agreement.



	 	 	 	 	 	 	 

	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	COMMERCIAL METALS COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Murray R. McClean
	 	 
	 

	 	Title:
	 	Chairman, President and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	PARTICIPANT:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Signature	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Address:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 






6