exv10w5






Exhibit 10.5




AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     This Amended and Restated Employment Agreement (the “Agreement”) is entered into this 23rd
day of May, 2011 by and between COMMERCIAL METALS COMPANY, a Delaware corporation (the
“Employer” or “Company”) and MURRAY R. McCLEAN (the “Executive”). The Employer and Executive
are collectively referred to as the “Parties,” and individually as a “Party.”



R E C I T A L S:




     WHEREAS, the Employer and Executive entered into the original Agreement as of May 23, 2005,
and amended the Agreement as of September 1, 2006, April 7, 2009, December 31,2009 and April 7,
2011;



     WHEREAS,
the Employer and Executive desire to set forth certain terms with respect to
Executive’s continued employment; and



     WHEREAS, the Parties desire to amend and restate the original Agreement, as amended, to
reflect the terms of the desired employment relationship and the ongoing responsibilities of
Executive;



     NOW, THEREFORE, in consideration of the mutual covenants herein contained, it is agreed as
follows:



     1. Purpose. The purpose of this Agreement is to formalize the terms and conditions
of Executive’s employment with Employer. This Agreement cannot be amended except by a writing
signed by both Parties.



     2. Definitions. For the purpose of this Agreement, the following words shall have
the following meanings:




     (a) “Affiliate” or “Affiliates” shall mean any corporation, partnership, joint
venture, association, unincorporated organization or any other legal entity that directly,
or indirectly through one or more intermediaries, controls or is controlled by, or is under
common control with, the Employer.




     (b) “Cause” shall mean: (1) any breach by Executive of any material provision of this
Agreement; (2) any act of Executive constituting a felony or otherwise involving theft,
embezzlement, fraud, or gross dishonesty; (3) any act by Executive involving moral
turpitude or willful misconduct that, in the good faith judgment of the Board of Directors
of the Employer either (i) causes material economic harm to the Employer or its Affiliates,
(ii) brings substantial discredit to the reputation of the



			
	 	 	 
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Employer or any Affiliate, or (iii) damages or interferes with the relationships of
the Employer or any Affiliate with any of their customers, suppliers, employees or
other agents; (4) gross negligence on the part of Executive in the performance of
his duties as an employee, officer, or director of Employer or any Affiliate; (5)
Executive’s breach of his fiduciary obligations to Employer, or (6) any chemical
dependence of the Executive which adversely affects the performance of his duties
and responsibilities to Employer.




     (c) “Change of Control” shall mean any of the following: (i) any
consolidation, merger or share exchange of the Employer in which the Employer is not the
continuing or surviving corporation or pursuant to which shares of the Employer’s Common
Stock would be converted into cash, securities or other property, other than a
consolidation, merger or share exchange of the Employer in which the holders of the
Employer’s Common Stock immediately prior to such transaction have the same proportionate
ownership of Common Stock of the surviving corporation immediately after such transaction;
(ii) any sale, lease, exchange or other transfer (excluding transfer by way of pledge or
hypothecation) in one transaction or a series of related transactions, of all or
substantially all of the assets of the Employer; (iii) the stockholders of the Employer
approve any plan or proposal for the liquidation or dissolution of the Employer; (iv) the
cessation of control (by virtue of their not constituting a majority of directors) of the
Board by the individuals (the “Continuing Directors”) who (x) at the date of this
Agreement were directors or (y) become directors after the date of this Agreement and
whose election or nomination for election by the Employer’s stockholders, was approved by
a vote of at least two-thirds of the directors then in office who were directors at the
date of this Agreement or whose election or nomination for election was previously so
approved; (v) the acquisition of beneficial ownership (within the meaning of Rule 13d-3
under the 1934 Act) of an aggregate of 20% of the voting power of the Employer’s
outstanding voting securities by any person or group (as such term is used in Rule 13d-5
under the 1934 Act) who beneficially owned less than 15% of the voting power of the
Employer’s outstanding voting securities on the date of this Agreement, or the acquisition
of beneficial ownership of an additional 5% of the voting power of the Employer’s
outstanding voting securities by any person or group who beneficially owned at least 15%
of the voting power of the Employer’s outstanding voting securities on the date of this
Agreement, provided, however, that notwithstanding the foregoing, an
acquisition shall not constitute a Change of Control hereunder if the
acquiror is (x) a
trustee or other fiduciary holding securities under an employee benefit plan of the
Employer and acting in such capacity, (y) a Subsidiary of the Employer or a corporation
owned, directly or indirectly, by the stockholders of the Employer in substantially the
same proportions as their ownership of voting securities of the Employer or (z) any other
person whose acquisition of shares of voting securities is approved in advance by a
majority of the Continuing Directors; or (vi) in a Title 11 bankruptcy proceeding, the
appointment of a trustee or the conversion of a case involving the Employer to a case
under Chapter 7.




     (d) “Confidential Information” means information (1) disclosed to or known by
Executive as a consequence of or through his employment with Employer or



			
	 	 	 
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any Affiliate; (2) not generally known outside Employer or its Affiliates; and (3)
which relates to any aspect of Employer’s or any Affiliate’s business, research, or
development. “Confidential Information” includes, but is not limited to, Employer’s
and any Affiliate’s trade secrets, proprietary information, business plans,
marketing plans, financial information, compensation and benefit information, cost
and pricing information, customer contacts, suppliers, vendors, and information
provided to Employer or any Affiliate by a third Party under restrictions against
disclosure or use by Employer or others.




     (e) “Conflict of Interest” means any situation in which the Executive has two or
more duties or interests which are mutually incompatible and may tend to conflict with
the proper and impartial discharge of the Executive’s duties, responsibilities or
obligations to Employer, including but not limited to those described in Employer’s
Policy of Business Conduct and Ethics (the “Policy”) which Executive has either not
disclosed to the Board of Directors of the Company or has disclosed and not been granted
a waiver under the provisions of such Policy.




     (f) “Exit Date” shall mean the first to occur of (i) termination of Executive’s
employment without Cause by the Employer, (ii) expiration of this Agreement on August 31,
2012, (iii) termination of this Agreement for Good Reason by Executive and (iv) the date
mutually agreed pursuant to Section 6(e).




     (g) “Good Reason” shall mean the occurrence, without Executive’s written consent, of
any of the following events: (1) a breach of any material provision of this Agreement by
Employer; (2) except as otherwise provided or permitted herein, a significant reduction
in the authorities, duties, responsibilities, and title of the Executive as set forth in
this Agreement; or (3) Employer’s requiring the Executive, without his consent, to be
employed at a location more than fifty (50) miles from the Employer’s present office
location in Dallas, Texas.



     3. Duration. This Agreement shall, unless earlier terminated pursuant to its
terms, continue through August 31, 2012.



     4. Duties and Responsibilities.




     (a) From the date hereof through and including August 31, 2011, Executive shall
diligently render his services to Employer as Chief Executive Officer in accordance
with Employer’s directives, and shall use his best efforts and good faith in
accomplishing such directives. Executive shall report directly to the Board of
Directors of the Company. Executive agrees to devote his full-time efforts,
abilities, and attention (defined to mean not normally less than forty (40)
hours/week) to the business of Employer, and shall not engage in any activities which
will interfere with such efforts. Effective as of September 1, 2011, Executive agrees
to and shall transfer the role, duties and responsibilities of the Chief Executive
Officer as directed by the Board of Directors. Executive acknowledges



			
	 	 	 
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and agrees that, at the direction of the Board of Directors, his duties as Chief Executive
Officer may be transitioned to others in advance of the referenced date, that he will
cooperate in such transition, and that such transition will be in keeping with and not
violate the terms of this Agreement.




     (b) From September 1, 2011 through and including August 31, 2012, Executive shall
serve as Chairman of Employer’s Board of Directors, and shall render services to Employer
consistent with (i) his fiduciary duties as a director, (ii) Employer’s policies as may
have been or may be in the future promulgated by the Board of Directors and (iii) those
services generally provided by the Chairman of the Board of a company substantially similar
to the Employer; provided, however, that Executive’s service as Chairman may be terminated
at any time for any reason by the Board of Directors; provided, further, that any such
early termination shall not affect any other provision or benefit contained herein, and
such early termination shall specifically provide for the termination benefits in Paragraph
7(b).



     5. Compensation
and Benefits. In return for the services to be provided by
Executive pursuant to this Agreement, Employer agrees to pay Executive as follows:




     (a) From the date hereof through and including August 31, 2011, Executive shall continue
to receive, pro rata, an annual base salary of eight hundred and fifty thousand dollars
($850,000.00) paid according to Employer’s regular payroll practices. From September 1, 2011
through and including August 31, 2012, Executive shall receive an annual base salary of four
hundred thousand dollars ($400,000) paid according to Employer’s regular payroll practices.
The amounts set forth in this Section 5(a) may be increased at the sole discretion of the
Compensation Committee of Employer’s Board of Directors, but cannot be decreased without
Executive’s written consent; however the Executive may voluntarily decrease his salary at any
time.




     (b) Bonus.
Executive shall be eligible to receive a bonus (the “Bonus”) for the fiscal
year of Employer ending August 31, 2011. The amount of the Bonus shall be determined by, and
in the sole discretion of, the Compensation Committee of the Board of Directors, in
accordance with established Plans, policies, and practices, and shall be based upon its
evaluation of Executive’s performance during the fiscal year and such other factors or
criteria as it may, in its sole discretion, consider. The Bonus, if any, shall be paid in a
lump sum, as soon as practicable following August 31, 2011, but in no event later than
November 30, 2011.




     (c) Payment and Reimbursement of Expenses. Employer shall pay or reimburse the
Executive for all reasonable travel and other expenses incurred by Executive in performing
his obligations under this Agreement in accordance with the policies and procedures of the
Employer provided that Executive properly accounts therefore in accordance with such policies
and procedures.



			
	 	 	 
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     (d) Fringe Benefits and Perquisites. Executive shall be entitled to participate in or receive
benefits under any plan or arrangement generally made available to the employees or executive
officers of Employer, all subject to and on a basis consistent with the terms, conditions, and
overall administration of such plans and arrangements and as approved by the Compensation
Committee of the Board of Directors of the Company in its sole discretion. Executive shall, during
his remaining tenure, continue to be eligible for LTIP payments pursuant to previously granted
LTEP awards pursuant to the terms of such awards. To the extent permitted by law and the terms of
Employer’s benefit plans, including Employer’s Profit Sharing and 401(k) Plan and Benefit
Restoration Plan, prior service by Executive with a subsidiary of Employer shall be credited as
service with Employer for purposes of vesting of any benefit. Employer shall furnish Executive
with an automobile for the duration of this Agreement consistent with Employer’s policies on
automobiles furnished senior corporate executives.




     (e) Vacations. In accordance with the policies of Employer, Executive shall be entitled to
the number of paid vacation days in each calendar year determined by Employer from time to time
for its employees generally, but not fewer than twenty (20) business days in any calendar year
(prorated in any calendar year in which Executive is employed hereunder for less than the entire
year in accordance with the number of days in such calendar year during which Executive is so
employed).




     (f) Health Care Coverage. Through August 31, 2012, Employer shall (to the extent Executive
elects to participate in such coverage where optional) provide life insurance coverage, disability
insurance, and hospital, surgical, medical, and dental benefits for Executive and his qualified
dependents, all on such terms as Employer normally provides such benefits for its salaried
employees and dependents. From September 1, 2012 through February 28, 2014, and provided
Executive elects and receives COBRA coverage, Employer shall pay for such coverage on Executive’s
behalf. From February 28, 2014 through February 28, 2015, Employer shall provide reimbursement of
premiums for medical plan coverage obtained by Executive similar in its provisions to that provided
by Employer up to $2,500 per month or, if Executive is unable to obtain coverage under a medical
insurance plan, then reimbursement of actual medical expenses. In no event, however, shall such
reimbursements exceed $25,000 in total during 2014 and $5,000 in total during 2015, subject to a
gross-up of such amount by Executive’s then-current tax rate; provided, however,
that (A) if Executive becomes eligible to receive group health benefits under a program of a
subsequent employer or otherwise (including coverage available to Executive’s spouse), the
Company’s obligation to pay any portion of the cost of health coverage as described herein shall
cease, except as otherwise provided by law; (B) the benefits provided in any one calendar year
shall not affect the amount of benefits provided in any other calendar year (other than the effect
of any overall coverage benefits under the applicable plans); (C) the reimbursement of an eligible
taxable expense shall be made as soon as practicable but not later than December 31 of the year
following the year in which the expense was incurred;



			
	 	 	 
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and (D) Executive’s rights pursuant to this Section 5(f) shall not be subject to
liquidation or exchange for another benefit.



     6. Termination.




     (a) Executive’s employment and this Agreement will terminate upon his death, or if,
owing to physical or mental impairment, he is unable to perform the functions of his
position with reasonable accommodation for four (4) consecutive months, or for a total of
six (6) months during any twelve (12) month period.




     (b) Employer may terminate Executive’s employment and this Agreement at any time (i)
without notice for Cause, in which case the severance provided for in Paragraph 7(c) shall
apply or (ii) following thirty (30) days written notice to
Executive without Cause, in which case the severance provided for in Paragraph 7(b) shall apply. If Employer is
terminating Executive’s employment for Cause pursuant to
Section 2(b)(1) of the definition
thereof and the Board of Directors determines, in its sole discretion, that such material
breach may be cured or rectified, then prior to terminating the Agreement for Cause,
Employer shall give Employer thirty (30) days advance written notice of its intent to
terminate for Cause and the grounds therefore, such that Executive has the opportunity to
cure and/or rectify the alleged breach. Only if Executive has not cured the alleged breach
prior to the expiration of thirty (30) days may Employer terminate for Cause.




     (c) Executive may terminate his employment and this Agreement upon thirty (30) days
written notice to Employer, in which case, the severance provided for in Paragraph 7(c)
shall apply. In the event Executive terminates his employment in this manner, he shall
remain in Employer’s employ subject to all terms and conditions of this Agreement for the
entire thirty (30) day period unless instructed otherwise by Employer.




     (d) Executive may terminate this Agreement for Good Reason. Prior to terminating the
Agreement for Good Reason, Executive must give Employer thirty (30) days advance written
notice of his intent to terminate for Good Reason and the grounds therefore, such that
Employer has the opportunity to cure and/or rectify the alleged breach, provided that such
notice to terminate must be given no later than ninety (90) days from the initial existence
of such Good Reason condition. Only if Employer does not cure the alleged breach at the end
of thirty (30) days may Executive terminate for Good Reason, in which case, the severance
provided for in Paragraph 7(b) shall apply.




     (e)
Employer and Executive may mutually agree to terminate this Agreement
at any time,
in which such case, the severance provided for in Paragraph 7(b) shall apply.



     7. Severance. Executive shall be entitled to the following compensation upon
termination of his employment resulting from:



			
	 	 	 
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     (a) Termination Resulting From Death or Disability. In the event Executive’s employment and
this Agreement are terminated as a result of his death or disability on or prior to the Exit
Date, and such termination constitutes a “separation from service” under Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), Executive or his estate shall be entitled
to the following:




     (i) such life insurance or disability benefits as Executive may be entitled to
pursuant to any life or disability insurance then maintained by the Employer for the
benefit of its employees and executive officers and, in addition thereto, Employer shall
pay a lump sum payment of fifty thousand dollars ($50,000.00) to Executive or his estate;




     (ii) in the event of Executive’s death or disability prior to September 1, 2011, a
pro-rata share of Bonus in an amount as determined by the Compensation Committee of the
Board of Directors in their sole discretion, payable no later than November 30 following
the end of Employer’s fiscal year during which termination occurs;




     (iii) to the extent permitted by the terms and conditions of Employer’s 2006
Long-Term Incentive Plan or other applicable equity incentive plan(s) and to the extent
authorized by the terms of each of Executive’s outstanding award or grant agreements
entered into pursuant to such plan(s), immediate vesting of all stock appreciation
rights, restricted stock, and/or stock options previously awarded Executive;




     (iv) to the extent permitted by the terms and conditions of the Profit Sharing and
401(k) Plan and Benefit Restoration Plan maintained by the Employer, crediting of any
Employer contribution to the Executive’s account attributable to the plan year during
which termination occurs and accelerated full vesting of any previously unvested Employer
contributions to the Executive’s account in such plans; and




     (v) to the extent not theretofore paid or provided, the Company shall timely pay or
provide to Executive any other amounts or benefits required to be paid or provided or
which Executive is eligible to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the “Other Benefits”).




     (b) Termination Without Cause by Employer, Expiration or For Good Reason by Executive. On
the Exit Date, and provided such termination constitutes a “separation from service” under
Section 409A of the Code (“Section 409A”), Executive shall be entitled to the following:



			
	 	 	 
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     (1) lump sum payment of $3,023,860;




     (2) accelerated vesting as of the Exit Date of all 55,000 PSUs granted on June 3, 2010
notwithstanding the vesting provisions of the applicable award agreement; provided,
however, that delivery of the shares of Company common stock in settlement of such PSUs
shall be delayed until the earlier of (i) the first day of the seventh month following the Exit
Date or (ii) the Executive’s death;




     (3) accelerated vesting as of the Exit Date of any remaining unvested units of the 75,000
time-vested units granted on June 3, 2010 notwithstanding the vesting provisions of the applicable
award agreement; provided, however, that delivery of the shares of Company common
stock in settlement of such units shall be delayed until the earlier of (i) the first day of the
seventh month following the Exit Date or (ii) the Executive’s death;




     (4) prorated vesting through the Exit Date of 42,580 time-vested units granted on January 18,
2011 in accordance with the applicable award agreement; provided, however,
that no less than 21,290 of such units shall vest, notwithstanding the vesting
provisions of the applicable award agreement; provided, further, that delivery of
the shares of Company common stock in settlement of such units shall be delayed until the earlier
of (i) the first day of the seventh month following the Exit Date or (ii) the Executive’s death;




     (5) the full grant of 63,870 PSUs granted on January 18, 2011 shall remain outstanding and
eligible for vesting based on the Company’s achievement of the performance criteria specified in
the applicable award agreement during the stated performance period, notwithstanding the provision
of the award agreement mandating forfeiture of unvested units as of the Executive’s termination.
If the performance criteria are satisfied, then the PSUs shall vest pro rata based on the number of
days elapsed during the performance period prior to the Exit Date, but in no event shall less than
31,935 PSUs vest and pay out. Notwithstanding any provisions of the award agreement to the
contrary, the PSUs shall pay out all in cash, and the Company agrees to use the closing stock price
on the vesting date to value the award and to issue any amounts payable no later than sixty (60)
days following the last day of the performance period;




     (6) payment of all Other Benefits; and




     (7) any payments under the Long-Term Incentive Plan (“LTIP”) for which Executive is eligible,
including the LTIP programs covering the periods 2008-2011, 2009-2012 and 2010-2012, prorated
through the Exit Date, in the standard practice for retirement from the Company.



			
	 	 	 
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     (c) Termination for Cause. In the event Executive’s employment is terminated for Cause,
Executive shall not be entitled to compensation.




     (d) Termination without Cause by Employer or for Good Reason by Executive within Twelve
Months Following a Change of Control. If, within twelve months following a Change in Control,
Executive’s employment is terminated by the Employer for any reason other than for Cause, death or
disability or if Executive terminates employment for Good Reason during such twelve (12) month
period, and such termination constitutes a “separation from service” under Section 409A of the
Code, Executive shall be entitled to the following:




     (i) lump sum payment of two times Executive’s then current annual base salary;




     (ii) a cash payment in lieu of Bonus equal to two times the average annual Bonus
received by Executive for the five year period ended with Employer’s last complete fiscal
year prior to the Change of Control; and




     (iii) all those additional amounts described above in 7(a)iii, iv and v; and




     (iv) a continuation of Welfare Benefit Plans (as those terms are defined in the
Employer’s form Executive Employment Continuity Agreement, a copy of which was filed with
the Securities and Exchange Commission as Exhibit 10.1 to Commercial Metals Company’s Form
10-Q for the quarter ended February 28, 2006 (the “EECAs”)), in which the Executive or his
dependents are participating immediately prior to the Executive’s termination date. The
Executive’s participation in the Welfare Benefit Plans shall be for twenty four (24)
months under terms at least as favorable to Executive as those contained in the EECAs. To
the extent such benefits provided by the Employer are taxable to Executive, such benefits,
for purposes of Section 409A of the Code, shall be provided as separate monthly in-kind
payments of those benefits, and to the extent those benefits are subject to and not
otherwise exempt from Section 409A of the Code, the provision of the in-kind benefits
during one calendar year shall not affect the in-kind benefits to be provided in any other
calendar year, and the rights to such in-kind benefits shall not be subject to liquidation
or exchange for another benefit.




     (e) Payment of Severance. In no event shall Executive be entitled to receive payments
pursuant to more than one subsection of this Paragraph 7. Except as otherwise provided, all lump
sum or cash payments due to Executive pursuant to this Paragraph 7, subject to Paragraph 17,
shall be paid to Executive as soon as practicable following the Exit Date except that, in the
case of payments pursuant to 7(a) as a result of disability (provided Executive is competent),
7(b), 7(d), and 7(e), at least 8 days following execution and delivery to Employer of a general
release in the form attached hereto as



			
	 	 	 
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Exhibit
“A,” the provision of such an executed general release being a precondition to
entitlement to such payments.



     8. Non-Competition,
Non-Solicitation, and Confidentiality. Employer and Executive
acknowledge and agree that while Executive is employed pursuant to this Agreement, he will have
access to Confidential Information of Employer and its Affiliates, will be provided with
specialized training on how to perform his duties; and will be provided contact with Employer’s
and Affiliates’ customers and potential customers. In consideration of all of the foregoing,
Employer and Executive agree as follows:




     (a) Non-Competition During Employment. Executive agrees that for the duration of this
Agreement, he will not compete with Employer by engaging in the conception, design,
development, production, marketing, sourcing or servicing of any product or service that is
substantially similar to the products or services which Employer or any Affiliate provides,
and that he will not work for, in any capacity, assist, or become affiliated with as an owner,
partner, etc., directly or indirectly, any individual or business which offers or performs
services, or offers or provides products substantially similar to the services and products
provided by Employer or any Affiliate.




     (b) Non-Competition After Employment. Executive agrees that for a period of eighteen
months after termination of his employment with Employer for any reason, he will not compete
with Employer or any Affiliate by engaging in the conception, design, development, production,
marketing, sourcing or servicing of any product or service that is substantially similar to
the products or services which Employer or any Affiliate provides, and that he will not work
for, in any capacity, assist, or become affiliated with as an owner, partner, etc., directly
or indirectly, any individual or business which offers or performs services, or offers or
provides products substantially similar to the services and products provided by Employer or
any Affiliate.




     (c) Conflicts of Interest. Executive agrees that for the duration of this Agreement,
he will not engage, either directly or indirectly, in any Conflict of Interest, and that
Executive will promptly inform the Chairman of the Audit Committee of Employer’s Board of
Directors as to each offer received by Executive to engage in any such activity. Executive
further agrees to disclose to Employer any other facts of which Executive becomes aware which
might involve or give rise to a Conflict of Interest or potential Conflict of Interest.




     (d) Non-Solicitation of Customers and Employees. Executive further agrees that for a
period of eighteen months after the termination of this Agreement for any reason, he will not
either directly or indirectly, on his own behalf or on behalf of others (i) solicit or accept
any business from any customer or supplier or prospective customer or supplier with whom
Executive personally dealt or solicited at any time on or after September 1, 1999 on behalf of
Employer or any Affiliate, or (ii), solicit, attempt to



			
	 	 	 
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hire, or hire any employees of Employer or any Affiliate to work for Executive or for any
other entity, firm, corporation, or individual.




     (e) Confidential Information. Executive further agrees that he will not,
except as Employer may otherwise consent or direct in writing, reveal or disclose, sell,
use, lecture upon, publish, or otherwise disclose to any third party any Confidential
Information or proprietary information of Employer or any Affiliate, or authorize anyone
else to do these things at any time either during or subsequent to his employment with
Employer. If Executive becomes legally compelled by deposition, subpoena or other court
or governmental action to disclose any Confidential Information, then the Executive shall
give Employer prompt notice to that effect, and will cooperate with Employer if Employer
seeks to obtain a protective order concerning the Confidential Information. Executive will
disclose only such Confidential Information as his counsel shall advise is legally
required. Executive agrees to deliver to Employer, at any time Employer may request,
all documents, memoranda, notes, plans, records, reports, and other
documentation, models, components, devices, or computer software, whether embodied in
electronic format on a computer hard drive, disk or in other form (and all copies of all of
the foregoing), relating to the businesses, operations or affairs of Employer or any
Affiliates and any other Confidential Information that Executive may then possess or have
under his control. This section shall continue in full force and effect after
termination of Executive’s employment and after the termination of this Agreement for any
reason, including expiration of this Agreement. Executive’s obligations under this section
of this Agreement with respect to any specific Confidential Information and proprietary
information shall cease when that specific portion of Confidential Information and
proprietary information becomes publicly known, in its entirety and without combining
portions of such information obtained separately and without breach by Executive of his
obligations under this Agreement. It is understood that such Confidential Information
and proprietary information of Employer and any Affiliate includes matters that Executive
conceives or develops, as well as matters Executive learns from other employees of
Employers or any Affiliate.




     (f) Breach. Executive agrees that any breach of Paragraphs 8(a), (b), (c), (d) or (e)
above cannot be remedied solely by money damages, and that in addition to any other
remedies Employer may have, Employer is entitled to obtain injunctive relief against
Executive. Nothing herein, however, shall be construed as limiting Employer’s right to
pursue any other available remedy at law or in equity, including recovery of damages and
termination of this Agreement. If the Executive is found to have violated Paragraph 8(b),
the Parties agree that the duration of the non-competition period set forth therein shall
be automatically extended by the same period of time that Executive is determined to have
been in violation of the restriction.



     9. Assignment. This Agreement may be assigned by Employer, but cannot be
assigned by Executive.



			
	 	 	 
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     10. Binding Agreement. Executive understands that his obligations under this
Agreement are binding upon Executive’s heirs, successors, personal representatives, and legal
representatives.



     11. Notices. All notices pursuant to this Agreement shall be in writing and sent
certified mail, return receipt requested, addressed as follows:



	 	 	 

	If to Executive:
	If to Employer:
	 
	 	 
	Murray R. McClean
	 	Lead Director
	5323 Tennington Park
	 	c/o Corporate Secretary
	Dallas, Texas 75287
	 	Commercial Metals Company
	 
	 	6565 N. MacArthur Blvd.
	 
	 	Suite 800
	 
	 	Irving, Texas 750397
	 
	 	 
	with a copy to:
	 	with a copy to:
	 
	 	 
	Keith Clouse
	 	General Counsel
	1201 Elm Street
	 	Commercial Metals Company
	Suite 5200
	 	6565 N. MacArthur Blvd.
	Dallas, Texas 75270
	 	Suite 800
	 
	 	Irving, Texas 75039






     12. Waiver. No waiver by either Party to this Agreement of any right to enforce any
term or condition of this Agreement, or of any breach hereof, shall be deemed a waiver of such
right in the future or of any other right or remedy available under this Agreement.



     13. Severability. If any provision of this Agreement is determined to be void,
invalid, unenforceable, or against public policy, such provisions shall be deemed severable from
the Agreement, and the remaining provisions of the Agreement will remain unaffected and in full
force and effect. Furthermore, any breach by Employer of any provision of this Agreement shall not
excuse Executive’s compliance with the requirements of Paragraph 8 to the extent otherwise
enforceable.



     14. Entire
Agreement and Understanding. The terms and provisions contained herein
shall constitute the entire agreement between the Parties with respect to Executive’s employment
with Employer during the time period covered by this Agreement. This Agreement replaces and
supersedes any and all existing agreements, including the existing Agreement and all amendments
thereto, entered into between the Parties. The Parties represent and warrant that they have read
and understood each and every provision of this Agreement, and that they are free to obtain advice
from legal counsel of choice, if necessary and desired, in order to interpret any and all
provisions of this Agreement, and that both Parties have voluntarily entered into this Agreement.





			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 12











 









 








     15. Effective
Date. It is understood that this Agreement shall be effective as of
the date hereof and that the terms of this Agreement shall remain in full force and effect both
during Executive’s employment and where applicable thereafter.



     16. Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.



     17. Section 409A;
Delay of Severance Payments. To the extent (i) any post-termination
payments to which Executive becomes entitled under this Agreement or any agreement or plan
referenced herein constitute deferred compensation subject to Section 409A of the Code, and (ii)
Executive is deemed at the time of such termination of employment to be a “specified employee”
under Section 409A of the Code, then such payment will not be made or commence until the earliest
of (x) the expiration of the six (6) month period measured from the date of Executive’s “separation
from service” (as such term is defined in the Treasury Regulations promulgated under Section 409A
of the Code and any other guidance issued under Section 409A of the Code); and (y) the date of
Executive’s death following such separation from service. Upon the expiration of the applicable
deferral period, any payments which would have otherwise been made during that period (whether in a
single sum or in installments) in the absence of this Paragraph 17 will be paid to Executive or
Executive’s beneficiary in one lump sum.



     18. Other
Board Service. The Employer and Executive agree that Executive may, with
the prior approval of the Board of Directors, accept and begin service on up to two public company
boards of directors between September 1, 2011 and the Exit Date, provided Executive complies with
his obligations under this Agreement and such service does not violate the provisions of Paragraph
8 hereof or otherwise appear contrary to the best interests of the Company as determined in the
sole discretion of the Board of Directors.



     19. Acknowledgement. From and after the date of this Amended and Restated
Agreement, any and all references to the Agreement shall refer to the Agreement as hereby amended
and restated. For the avoidance of doubt, Employer and Executive acknowledge and agree that the
matters contemplated by this Amended and Restated Agreement, including without limitation the
changes in Executive’s title, responsibilities and compensation set forth herein, shall not
constitute “Good Reason” for purposes of the Agreement.



			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 13






 









 





     IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 	 	 

	 	 	EMPLOYER	 	 
	 
	 	 	 	 	 	 
	 	 	COMMERCIAL METALS
COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Anthony A. Massaro
 

Anthony A. Massaro
	 	 
	 

	 	Title:
	 	Lead Director	 	 
	 
	 
	 	By: /s/ Richard B Kelson	 	 
	 
	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	/s/ Murray R. McClean	 	 
	 	 	 	 	 
	 	 	MURRAY R. McCLEAN	 	 






			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 14










 









 








EXHIBIT “A” 



GENERAL RELEASE




     I, Murray R. McClean, in consideration of the promises given by Commercial Metals Company
(the “Company”) in that certain Amended and Restated Employment Agreement dated
the ____ day of___, 2011 (the “Agreement”), do hereby release and forever discharge as of
the date hereof the Company and its affiliates and all present and former directors, officers,
agents, representatives, employees, successors and assigns of the Company and its affiliates
(collectively, the “Released Parties”) to the extent provided below.




	1.	 	I understand that the cash payments (“Severance Payments”) paid or granted to me under
Section 7 of the Agreement represent, in part, consideration for signing this General Release
and are not salary, wages or benefits to which I was already entitled. I understand and agree
that I will not receive the Severance Payments specified in Section 7 of the Agreement unless
I execute this General Release and do not revoke this General Release within the time period
permitted hereafter or breach this General Release. Such payments will not be considered
compensation for purposes of any employee benefit plan, program, policy or arrangement
maintained or hereafter established by the Company or its affiliates. I also acknowledge and
represent that I have received all payments and benefits that I am entitled to receive (as of
the date hereof) by virtue of any employment by the Company.
	 
	2.	 	Except as specifically provided to the contrary in this General Release or the Agreement,
I knowingly and voluntarily (for myself, my spouse, and my heirs, executors,
administrators and assigns) release and forever discharge the Company and the other
Released Parties from any and all claims, suits, controversies, actions, causes of action,
cross-claims, counter-claims, demands, debts, compensatory damages, liquidated
damages, punitive or exemplary damages, other damages, claims for costs and attorneys’
fees, or liabilities of any nature whatsoever in law and in equity, both past and present
(through the date this General Release becomes effective and enforceable) and whether
known or unknown, suspected, or claimed against the Company or any of the Released
Parties which I, or any of my heirs, executors, administrators or assigns, may have,
including without limitation any allegation, claim or violation, arising under: Title VII of
the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older Workers
Benefit Protection Act) (the “ADEA”); the Equal Pay Act of 1963, as amended; the
Americans with Disabilities Act of 1990, as amended; the Family and Medical Leave Act
of 1993; the Worker Adjustment and Retraining Notification Act; the Employee
Retirement Income Security Act of 1974; as amended; any applicable Executive Order
Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any
other federal, state or local civil or human rights law, or under any other local, state, or
federal law, regulation or ordinance; or under any public policy, contract or tort, or under
common law; or arising under any policies, practices or procedures of the Company; or
any claim for wrongful discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including attorneys’ fees





			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 15











 









 












	 	 	incurred in these matters (all of the foregoing collectively referred to herein as the
“Claims”).
	 
	3.	 	I represent that I have made no assignment or transfer of any Claim or other right, demand,
cause of action, or other matter covered by paragraph 2 above.
	 
	4.	 	I acknowledge and understand that this General Release does not waive or release any rights
or claims that I may have under the ADEA which arise after the date I execute this General
Release, or any future rights or claims I may have under the Agreement. I acknowledge and
agree that my separation from employment with the Company in compliance with the terms of the
Agreement shall not serve as the basis for any claim or action (including any claim under the
ADEA).
	 
	5.	 	I agree that I am waiving all rights to sue or obtain equitable, remedial or punitive relief
from any or all Released Parties for any claims arising prior to the date I sign this General
Release of any kind whatsoever, including reinstatement, back pay, front pay, attorneys’ fees
and any form of injunctive relief. Notwithstanding the foregoing, I further acknowledge
that I am not waiving and am not being required to waive any right that cannot be waived under
law, including the right to file an administrative charge or participate in an administrative
investigation or proceeding; provided, however, that I disclaim and waive any right to share
or participate in any monetary award resulting from the prosecution of such charge or
investigation or proceeding.
	 
	6.	 	In signing this General Release, I acknowledge and intend that it shall be effective as a bar
to each and every one of the Claims hereinabove mentioned or implied. I expressly consent that
this General Release shall be given full force and effect according to each and all of its
express terms and provisions, including those relating to unknown and unsuspected Claims
(notwithstanding any state statute that expressly limits the effectiveness of a
general release of unknown, unsuspected and unanticipated Claims), if any, as well as those
relating to any other Claims hereinabove mentioned or implied. I acknowledge and agree that
this waiver is an essential and material term of this General Release and that without such
waiver the Company would not have agreed to the terms of the Agreement. I further agree that
in the event I should bring a Claim seeking damages against the Company, or in the event I
should seek to recover against the Company in any Claim brought by a governmental agency on my
behalf, this General Release shall serve as a complete defense to such Claims to the maximum
extent permitted by law. I further agree that I am not aware of any claim of the type
described in paragraph 2 above as of the execution of this General Release. Notwithstanding
the foregoing, I further acknowledge that I am not waiving and am not being required to waive
any right that cannot be waived by law, including the right to file a charge or participate in
an administrative investigation or proceeding of any government agency that does not
acknowledge the validity of this General Release; provided, however, that I hereby disclaim
and waive any right to share or participate in any monetary or other award resulting from the
prosecution of such charge or investigation.





			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 16











 









 












	7.	 	I agree that neither this General Release, nor the furnishing of the consideration for
this General Release, shall be deemed or construed at any time to be an admission by the
Company, any Released Party or myself of any improper or unlawful conduct.
	 
	8.	 	I agree that if I violate this General Release by suing the Company or the other Released
Parties in regard to a Claim being released pursuant to this General Release, I will pay all
costs and expenses of defending against the suit incurred by the Released Parties, including
reasonable attorneys’ fees.
	 
	9.	 	I agree to cooperate with the Company in any internal investigation, any administrative,
regulatory, or judicial proceeding or any dispute with a third party. I understand and agree
that my cooperation may include making myself available to the Company upon reasonable notice
for interviews and factual investigations; appearing at the Company’s request to give
testimony without requiring service of a subpoena or other legal process; volunteering to the
Company pertinent information; and turning over to the Company all relevant documents which
are or may come into my possession all at times and on schedules that are reasonably
consistent with my other permitted activities and commitments. I understand that in the
event the Company asks for my cooperation in accordance with this provision, the Company will
reimburse me for reasonable travel expenses (including lodging and meals), provided such
expenses are approved in advance in writing and upon my submission of receipts.
	 
	10.	 	I agree not to disparage the Company, its past and present investors, officers, directors or
employees or its affiliates and to keep all confidential and proprietary information about the
past or present business affairs of the Company and its affiliates confidential unless a prior
written release from the Company is obtained. I further agree that as of the date hereof, I
have returned to the Company any and all property, tangible or intangible, relating to its
business, which I possessed or had control over at any time (including company-provided
credit cards, building or office access cards, keys, computer equipment, manuals,
files, documents, records, software, customer data base and other data) and that I shall not
retain any copies, compilations, extracts, excerpts, summaries or other notes of any such
manuals, files, documents, records, software, customer data base or other data.
	 
	11.	 	Notwithstanding anything in this General Release to the contrary, this General Release shall
not relinquish, diminish, or in any way affect any rights or claims arising out of any breach
by the Company or by any Released Party of the Agreement after the date hereof.
	 
	12.	 	Whenever possible, each provision of this General Release shall be interpreted in, such
manner as to be effective and valid under applicable law, but if any provision of this General
Release is held to be invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other provision or any other jurisdiction, but this General Release shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.





			
	 	 	 
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	 	Page 17











 









 










BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:





	(a)	 	I HAVE READ IT CAREFULLY;
	 
	(b)	 	I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING RIGHTS UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS
AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF
1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
	 
	(c)	 	I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
	 
	(d)	 	I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF
MY OWN CHOOSING;
	 
	(e)	 	I HAVE BEEN GIVEN ALL TIME PERIODS REQUIRED BY LAW TO CONSIDER THIS GENERAL
RELEASE, INCLUDING THE 21-DAY PERIOD REQUIRED BY THE ADEA TO CONSIDER THIS RELEASE
BEFORE SIGNING. I UNDERSTAND THAT I MAY EXECUTE THIS GENERAL RELEASE LESS THAN 21 DAYS
FROM ITS RECEIPT FROM THE COMPANY, BUT AGREE THAT SUCH EXECUTION WILL REPRESENT
MY KNOWING WAIVER OF SUCH 21-DAY CONSIDERATION PERIOD.
	 
	(f)	 	I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS GENERAL RELEASE
TO REVOKE IT AND THAT NONE OF THIS GENERAL RELEASE, THE COMPANY’S OBLIGATIONS HEREUNDER
OR ANY OF THE COMPANY’S OBLIGATIONS UNDER THE AGREEMENT THAT ARE
CONDITIONED ON THE EXECUTION, DELIVERY OR EFFECTIVENESS OF THIS GENERAL RELEASE SHALL
BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
	 
	(g)	 	I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE
OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
	 
	(h)	 	I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED, WAIVED,
CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMPANY AND BY ME.





	 	 	 	 	 	 	 	 	 

	DATE:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 
	 	 

Murray R. McClean
	 	 
	 
	 	 	 	 	 	 	 	 
	Witness
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Print name:
	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 






			
	 	 	 
	AMENDED AND RESTATED EMPLOYMENT AGREEMENT
	 	Page 18