SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No.)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to 240.14a-12
COMMERCIAL METALS COMPANY
(Name of Registrant as Specified In Its Charter)
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL L.P.
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
CARL C. ICAHN
JAMES UNGER
STEVE MONGILLO
GEORGE HEBARD
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
[PRELIMINARY PROXY MATERIALS, SUBJECT TO COMPLETION]
2012 ANNUAL MEETING OF SHAREHOLDERS
OF
COMMERCIAL METALS COMPANY
___________________
PROXY STATEMENT
DATED _________________
OF
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL L.P.
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
CARL C. ICAHN
STEVE MONGILLO
JAMES UNGER
GEORGE HEBARD
___________________
To Our Fellow Commercial Metals Shareholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to Shareholders ("Shareholders") of Commercial Metals Company, 6565
North MacArthur Boulevard, Suite 800, Irving, Texas 70539 ("Commercial Metals,"
the "Corporation" or the "Company") in connection with the solicitation of
proxies by Carl C. Icahn and the Participants (as hereinafter defined), to be
used at the 2012 Annual Meeting (the "Annual Meeting") of Shareholders of
Commercial Metals Company which is scheduled to be held at [ ], on [ ], at [ ]
(Central Standard Time), and at any adjournments, postponements or continuations
thereof. This Proxy Statement and the GOLD proxy card are first being furnished
to Shareholders on or about [ ].
This Proxy Statement, as well as other proxy materials to be distributed by
the Participants (as hereinafter defined), are available free of charge online
at www.dfking.com/cmc.
PROPOSAL 1 - ELECTION OF DIRECTORS
At the Annual Meeting, the Participants will seek to elect to the Board of
Directors ("Board") of Commercial Metals Company the following persons (each a
"Nominee" and collectively, the "Nominees"):
JAMES UNGER
STEVE MONGILLO
GEORGE HEBARD
The Participants (as hereinafter defined) believe that the Nominees have
impressive qualifications and that their experience would be extremely
beneficial to Commercial Metals and, therefore, its shareholders. Mr. Unger has
over 30 years of experience in the railcar industry and has extensive knowledge
of the operational issues facing industrial companies. Mr. Mongillo has over 25
years of experience in the financial industry and has a strong understanding of
the complex business and financial issues encountered by large complex
companies. Mr. Hebard has a strong record as a sophisticated investor and has a
broad understanding of the operational, financial and strategic issues facing
public and private companies. The Participants also believe that each Nominee is
a strong stockholder-oriented individual who will help represent the best
interests of the Corporation's stockholders.
Each of our Nominees has consented to being named in this Proxy Statement,
including as a nominee, and to serve as a director of the Corporation if so
elected.
PROPOSAL 2 - POISON PILL REDEMPTION RESOLUTION
At the Annual Meeting the Participants will also seek to adopt a resolution
(the "Poison Pill Redemption Resolution") of the Shareholders strongly urging
the Board to immediately redeem any and all outstanding Rights (as defined in
the Rights Agreement (as defined below)) issued pursuant to that certain Rights
Agreement, dated as of July 30, 2011, between the Corporation and Broadridge
Corporate Issuer Solutions, Inc. (the "Rights Agreement" or the "Poison Pill")
in accordance with Section 23 of the Rights Agreement and to terminate the
Rights Agreement immediately thereafter.
The following is the text of the proposed resolution:
"RESOLVED, that the Stockholders of the Corporation hereby strongly urge
the Board of Directors of the Corporation (the "Board") to immediately redeem
(the "Redemption") any and all outstanding Rights (as defined in the Rights
Agreement (as defined below)) issued pursuant to that certain Rights Agreement,
dated as of July 30, 2011, between the Corporation and Broadridge Corporate
Issuer Solutions, Inc. (the "Rights Agreement") in accordance with Section 23 of
the Rights Agreement and to terminate the Rights Agreement immediately
thereafter; and be it further
RESOLVED, that the Stockholders of the Corporation hereby strongly urge the
Board to not establish any conditions to the Redemption, other than as
specifically required by and set forth in the Rights Agreement; and be it
further
RESOLVED, that the Stockholders of the Corporation hereby strongly urge the
Board to immediately order the Redemption and give immediate public notice of
the Redemption."
PROPOSAL 3 - POISON PILL BYLAW AMENDMENT
At the Annual Meeting the Participants will also seek to adopt a resolution
(the "POISON PILL BYLAW AMENDMENT") that would amend the Bylaws to require
stockholder approval in order to authorize, establish, adopt, or amend any
rights plan, poison pill or similar plan.
The following is the text of the proposed resolution:
"RESOLVED, that the Second Amended and Restated Bylaws of the Corporation
shall be amended to add the following provisions:
ARTICLE XII
POISON PILLS
(a) In addition to any affirmative vote of stockholders required by any
provision of law, the restated certificate of incorporation of the corporation
or these Bylaws, the corporation shall not authorize, establish, adopt, or amend
any Poison Pill (as defined in subsection (b) below) without the affirmative
vote of the holders of a majority of the voting power of all of the
then-outstanding shares of capital stock of the corporation entitled to vote
generally in the election of directors, voting as a single class.
(b) For purposes of these Bylaws, a "Poison Pill" shall mean any plan or
arrangement of the sort commonly referred to as a "rights plan" or "stockholder
rights plan" or "shareholder rights plan" or "poison pill" that is designed to
prevent or make more difficult a hostile takeover of the corporation by
increasing the cost to a potential acquirer in such a takeover either through
the issuance of new rights, shares of common stock or preferred stock or any
other security or device that may be issued to stockholders of the corporation
other than ratably to all stockholders of the corporation that carry severe
redemption provisions, favorable purchase provisions or otherwise.
(c) Notwithstanding Section 7 "Amendment" of Article X of these Bylaws, no
provision of this Article XII may be amended, modified, repealed or superseded
without the affirmative vote of the holders of a majority of the voting power of
all of the then-outstanding shares of capital stock of the corporation entitled
to vote generally in the election of directors, voting as a single class."
PROPOSAL 4 - REPEAL OF NEW BYLAWS DESIGNED TO FRUSTRATE THE PROXY FIGHT
At the Annual Meeting the Participants will also seek to adopt a resolution
(the "Repeal of New Bylaws Designed to Frustrate the Proxy Fight") that would
repeal any provision of the Bylaws in effect at the time of the Annual Meeting
that was not included in the Bylaws as publicly filed with the Securities and
Exchange Commission prior to October 18, 2011, and is inconsistent with any of
the foregoing proposals that are approved by the stockholders at the Annual
Meeting.
The Record Holder is not aware of any such provision of the Bylaws that has
become effective, but it is possible that between October 18, 2011 and prior to
the adoption of this resolution such a provision could become effective.
The following is the text of the proposed resolution:
"RESOLVED, that any provision of the Second Amended and Restated Bylaws of
Commercial Metals Company as of the effectiveness of this resolution that was
not included in the Bylaws of Commercial Metals Company as publicly filed with
the Securities and Exchange Commission prior to October 18, 2011, and is
inconsistent with any of the proposals approved by stockholders at the 2012
Annual Meeting of the Stockholders of Commercial Metals Company, be and hereby
are repealed."
Although not binding on the Board, the Participants are bringing Proposal 2
"Poison Pill Redemption Resolution" for consideration at the Annual Meeting
because the Participants believe that the Shareholders should have the ability
to indicate to the Board that Shareholders believe that the Poison Pill is not
in their best interests. The Participants are bringing Proposal 3 "Poison Pill
Bylaw Amendment" for consideration at the Annual Meeting because the
Participants believe that poison pills should not be authorized, established,
adopted, or amended without stockholder approval. The Participants are bringing
Proposal 4 for consideration at the Annual Meeting because the Participants
believe that amendments to the Bylaws that have not been publically disclosed
prior to the date of the Participants notice to the Company of its intent to
nominate directors and other shareholder business should not frustrate the
purposes of the various proposals being made by the Participants at the Annual
Meeting.
THE PARTICIPANTS URGE YOU TO VOTE THE GOLD PROXY CARD (I) FOR JAMES UNGER, STEVE
MONGILLO AND GEORGE HEBARD, AS DIRECTORS, (II) FOR THE POISON PILL REDEMPTION
RESOLUTION, (III) FOR THE POISON PILL BYLAW AMENDMENT AND (IV) FOR THE REPEAL OF
NEW BYLAWS DESIGNED TO FRUSTRATE THE PROXY FIGHT.
The Nominees and each of the other Participants have no interest in
Commercial Metals other than through the beneficial ownership (if any) of shares
of Common Stock, par value $0.01 per share, of Commercial Metals Company (the
"Common Stock") or other securities (if any) of Commercial Metals, except as
disclosed herein, including the Annexes hereto, and in the case of each of
Messrs. Unger and Mongillo, pursuant to an agreement in which certain affiliates
of Carl C. Icahn have agreed to pay each of Mr. Unger and Mr. Mongillo $25,000
and to indemnify each of Messrs. Unger, Mongillo and Hebard with respect to
certain costs incurred by each such Nominee in connection with the proxy contest
relating to the Annual Meeting (the "Nominee Agreement").
JAMES UNGER, STEVE MONGILLO AND GEORGE HEBARD ARE COMMITTED TO ACTING IN
THE BEST INTEREST OF ALL SHAREHOLDERS OF COMMERCIAL METALS. THE PARTICIPANTS
URGE YOU TO VOTE YOUR GOLD PROXY CARD (I) FOR JAMES UNGER, STEVE MONGILLO AND
GEORGE HEBARD, AS DIRECTORS, (II) FOR THE POISON PILL REDEMPTION RESOLUTION,
(III) FOR THE POISON PILL BYLAW AMENDMENT AND (IV) FOR THE REPEAL OF NEW BYLAWS
DESIGNED TO FRUSTRATE PROXY FIGHT.
IMPORTANT
According to Commercial Metals' Proxy Statement, the Bylaws and applicable
law, the nominees for director receiving the highest number of votes FOR
election will be elected as directors at a meeting at which a quorum is present
in person or represented by proxy. The adoption of a stockholder resolution
requires the affirmative vote of a majority of the Shares present in person or
represented by proxy at the Annual Meeting and entitled to vote on the proposal.
As a result, your vote is extremely important. We urge you to mark, sign, date,
and return the enclosed GOLD proxy card to vote FOR the election of each Nominee
and FOR each of the Proposals.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY COMMERCIAL METALS. IF
YOU HAVE ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED
GOLD PROXY CARD IN THE ENCLOSED POSTAGE-PAID ENVELOPE, EXECUTING A VOTE VIA
INTERNET OR TELEPHONE, OR BY VOTING IN PERSON AT THE ANNUAL MEETING. SEE "VOTING
PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you attend the Annual Meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to revoke your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this Proxy Statement for assistance or if you have any questions.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 967-7921
BANKS AND BROKERS CALL COLLECT: (212) 269-5550
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/CMC.
Only holders of record of Commercial Metals' Common Stock as of the close
of business on [ ] (the "Record Date") are entitled to notice of, and to attend
and to vote at, the Annual Meeting and any adjournments or postponements
thereof. According to the proxy statement of Commercial Metals filed with the
Securities and Exchange Commission ("Commercial Metals' Proxy Statement") for
the Annual Meeting, as of the Record Date, there were outstanding [ ] shares of
Common Stock. Shareholders of record at the close of business on the Record Date
will be entitled to one vote at the Annual Meeting for each share of Common
Stock of Commercial Metals held on the Record Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of [ ] shares of Common Stock, representing approximately [ ]
of the outstanding shares of Common Stock. The Participants and their affiliates
intend to vote such shares of Common Stock FOR the election of the Nominees and
FOR each of the Proposals.
VOTE FOR THE NOMINEES AND THE PROPOSALS BY USING THE ENCLOSED GOLD PROXY.
PLEASE VOTE TODAY - BY TELEPHONE, BY INTERNET, OR BY MARKING, SIGNING, DATING
AND RETURNING THE GOLD PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are James Unger, Steve Mongillo and George
Hebard), the participants in the solicitation of proxies (the "Participants")
from Shareholders of Commercial Metals Company include the following: Carl C.
Icahn, a citizen of the United States, High River Limited Partnership, a
Delaware limited partnership ("High River"), Hopper Investments LLC, a Delaware
limited liability company ("Hopper"), Barberry Corp., a Delaware corporation
("Barberry"), Icahn Partners LP, a Delaware limited partnership ("Icahn
Partners"), Icahn Partners Master Fund LP, a Cayman Islands limited partnership
("Icahn Master"), Icahn Partners Master Fund II L.P., a Cayman Islands limited
partnership ("Icahn Master II"), Icahn Partners Master Fund III L.P., a Cayman
Islands limited partnership ("Icahn Master III"), Beckton Corp., a Delaware
corporation ("Beckton"), Icahn Enterprises G.P. Inc., a Delaware corporation
("Icahn Enterprises GP"), Icahn Enterprises Holdings L.P., a Delaware limited
partnership ("Icahn Enterprises Holdings"), IPH GP LLC, a Delaware limited
liability company ("IPH"), Icahn Capital LP, a Delaware limited partnership
("Icahn Capital"), Icahn Onshore LP, a Delaware limited partnership ("Icahn
Onshore") and Icahn Offshore LP, a Delaware limited partnership ("Icahn
Offshore").
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties"), are entities controlled by Mr. Carl
C. Icahn. George Hebard is employed by an entity affiliated with Carl Icahn who
will participate in soliciting proxies from Commercial Metals' Shareholders.
Except as described herein, none of Messrs. Unger, Mongillo or Hebard
beneficially owns any interest in securities of Commercial Metals and none of
Messrs. Unger, Mongillo or Hebard will receive any special compensation in
connection with such solicitation of proxies from Commercial Metals'
Shareholders.
Annex A attached hereto sets forth, as to the Nominees and the other
Participants, all transactions in securities of Commercial Metals effected
during the past two years and their beneficial ownership of securities of
Commercial Metals.
With respect to each Participant (including the Nominees), except as set
forth herein or in any of the Annexes attached hereto, (i) such Participant is
not, nor was within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of Commercial
Metals, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Participant nor any of such Participant's associates have any
arrangement or understanding with any person with respect to (A) any future
employment by Commercial Metals or its affiliates or (B) any future transactions
to which Commercial Metals or any of its affiliates will or may be a party.
PROPOSAL 1 - ELECTION OF DIRECTORS
Article II, Section 3 of Commercial Metals' Second Amended and Restated
By-laws (the "Bylaws") provides that nominations of persons for election to the
Board of Directors of the Corporation may be made at an Annual Meeting " by any
shareholder of record of the corporation (the "Record Shareholder") at the time
of giving of the notice required in the following paragraph, who is entitled to
vote at the meeting and who has complied with the notice procedures set forth in
this section." On October 19, 2011, High River, a record holder of Common Stock,
delivered timely notice in accordance with the foregoing and otherwise in
accordance with the Company's Bylaws, notifying Commercial Metals that High
River intends to nominate and will seek to elect at the Annual Meeting - James
Unger, Steve Mongillo and George Hebard (the "Nominees"), as members of the
board of directors of Commercial Metals. Each Nominee, if elected, would serve a
three-year term and hold office until the 2015 annual meeting of Shareholders
and until a successor has been duly elected. Background information about each
of the Nominees is set forth below and in the Annexes attached hereto.
If elected, the Nominees will be a minority of the directors and will not
alone be able to adopt resolutions. However, the Nominees expect to be able to
actively engage other Board members in full discussion of the issues facing the
Company and resolve them together. By utilizing their respective experiences and
working constructively with Board members, the Nominees believe they can effect
positive change at the Company.
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as further
described in Annex A. Messrs. Unger, Mongillo and Hebard are each party to a
Nominee Agreement, substantially in the form attached hereto as Annex B,
pursuant to which Icahn Capital has agreed to pay certain fees to each of
Messrs. Unger and Mongillo and to indemnify each of the Nominees with respect to
certain costs incurred by each such Nominee in connection with the proxy contest
relating to the Annual Meeting. Except as disclosed in this Proxy Statement,
including the Annexes attached hereto and as provided in the Nominee Agreement
(which, among other things, provides for a payment to each of Messrs. Unger and
Mongillo of $25,000), none of the Nominees will receive any compensation from
any of the Participants or any of their affiliates in connection with this proxy
solicitation. Each of Messrs. Unger, Mongillo and Hebard has an interest in the
election of directors at the Annual Meeting pursuant to the Nominee Agreement.
The Nominees would not be barred from being considered independent under
the independence requirements of the New York Stock Exchange and the
independence standards applicable to Commercial Metals under paragraph (a)(1) of
Item 407 of Regulation S-K under the Securities Exchange Act of 1934, as
amended.
MR. JAMES UNGER, age 63
Mr. Unger has served as Vice Chairman of American Railcar Industries Inc.
since April 2009 and has served on the board of directors since 1995. From
March 1995 to April 2009, Mr. Unger served as Chief Executive Officer and
President of American Railcar Industries Inc. Mr. Unger also served as a
consultant to American Railcar Industries Inc. from April 2009 to March 2010.
Prior to joining American Railcar Industries Inc., he served ACF Industries,
Inc. as its president from 1988 to 1995, as its senior vice president and chief
financial officer from 1984 to 1988 and on its board of directors from August
1993 to March 2005. Since 2004, Mr. Unger has served as a director of American
Railcar Leasing LLC. Since June 2003, Mr. Unger has served as president of Ohio
Castings Company, LLC, a joint venture in which American Railcar Industries Inc.
has an interest. From July 2007 through August 2010, Mr. Unger served on the
executive committee of Axis, LLC (and its subsidiaries), an axle manufacturing
joint venture in which American Railcar Industries Inc. has an interest. From
2008 through August 2010, Mr. Unger served on the board of directors of Amtek
Railcar Industries Private Limited, an Indian joint venture in which American
Railcar Industries Inc. has an interest. Mr. Unger served on the board of
directors of Guaranty Financial Group and Guaranty Bank from August 2008 to
August 2009. Mr. Unger was on the board of directors of Aspen Resources Group,
an oil and gas exploration company from May 2002 until April 2007. Mr. Unger
participates in several industry organizations, including as an executive
committee member for the Railway Supply Institute, Inc. (RSI). He also is a
board member of the American Railway Car Institute, a member of the project
review committee for the RSI-AAR Railroad Tank Car Safety Research Test Project,
a steering committee member of RSI on tank railcars, and a member of the
National Freight and Transportation Association. Mr. Unger served as a member of
the board of directors of Ranken Technical College from 1990 to 2002. With
respect to American Railcar Industries Inc. and its various joint ventures
mentioned above, ACF Industries, Inc., American Railcar Leasing LLC, Guaranty
Financial Group and Guaranty Bank, Mr. Carl C. Icahn, directly or indirectly,
either (i) controls or at such time controlled such company, or (ii) at such
time had or has an interest in such company through the ownership of securities.
Mr. Unger received a B.S. in Accounting from the University of Missouri,
Columbia and is a Certified Public Accountant.
Based upon Mr. Unger's experience in the railcar industry, having served as
Chief Executive Officer and a director of American Railcar Industries Inc., the
Participants believe that Mr. Unger has the requisite set of skills to serve as
a Board member of Commercial Metals.
MR. STEVE MONGILLO, age 50
Mr. Mongillo is a private investor. From 2009 to 2011, Mr. Mongillo served
as a director of American Railcar Industries, Inc. From January 2008 to January
2011, Mr. Mongillo served as a managing director of Icahn Capital LP, the entity
through which Mr. Carl Icahn managed third party investment funds. From March
2009 to January 2011, Mr. Mongillo served as a director of WestPoint
International Inc. Prior to joining Icahn Capital, Mr. Mongillo worked at Bear
Stearns for 10 years, most recently as a senior managing director overseeing the
leveraged finance group's efforts in the healthcare, real estate, gaming,
lodging, leisure, restaurant and education sectors. With respect to each company
mentioned above, except Bear Stearns, Mr. Carl Icahn, directly or indirectly,
either (i) controls or at such time controlled such company or (ii) has or at
such time had an interest in such company through the ownership of securities.
Mr. Mongillo received a B.A. from Trinity College and an M.B.A from the Amos
Tuck School of Business Administration at Dartmouth College.
Based upon Mr. Mongillo's significant experience in the financial industry
and his strong understanding of the complex business and financial issues
encountered by large complex companies, the Participants believe that Mr.
Mongillo has the requisite set of skills to serve as a Board member of
Commercial Metals.
MR. GEORGE HEBARD, age 38
Since September 2011, George Hebard has been a Managing Director at Icahn
Capital LP, the entity through which Carl C. Icahn manages investment funds. He
provides investment management expertise on equity and debt investments across a
range of industries. Prior to joining Mr. Icahn, from 2005 to 2011, Mr. Hebard
served as a Managing Director at Blue Harbour Group, an investment firm in
Greenwich, Connecticut. Prior to Blue Harbour Group, Mr. Hebard served as
Managing Director at Ranger Partners from 2002 to 2003, and prior to Ranger
Partners, Mr. Hebard was an Associate at Icahn Associates Corp., from 1998 to
2002. Mr. Hebard has an MBA from INSEAD and an A.B. in Economics from Princeton
University.
Based upon Mr. Hebard's strong record as a financial analyst who has a
broad understanding of the operational, financial and strategic issues facing
public and private companies, the Participants believe that Mr. Hebard has the
requisite set of skills to serve as a Board member of Commercial Metals.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF JAMES UNGER, STEVE MONGILLO AND
GEORGE HEBARD, AS DIRECTORS, BY MARKING, SIGNING, DATING AND RETURNING THE
ENCLOSED GOLD PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU WITH THIS
PROXY STATEMENT OR BY USING THE GOLD PROXY CARD TO VOTE BY TELEPHONE OR
INTERNET. IF YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU
WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES OF COMMON STOCK
REPRESENTED BY THE GOLD PROXY CARD FOR THE ELECTION OF JAMES UNGER, STEVE
MONGILLO AND GEORGE HEBARD, AS DIRECTORS.
PROPOSAL 2 - POISON PILL REDEMPTION RESOLUTION
Article II, Section 3 of Commercial Metals' Bylaws provides that the
proposal of business to be transacted by the shareholders may be made at an
Annual Meeting " by any shareholder of record of the corporation (the "Record
Shareholder") at the time of giving of the notice required in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this section." On October 19, 2011, High River, a
record holder of Common Stock, delivered timely notice in accordance with the
foregoing and otherwise in accordance with the Company's Bylaws, notifying
Commercial Metals that High River intends to seek to adopt a resolution (the
"Poison Pill Redemption Resolution") of the Stockholders strongly urging the
Board to immediately redeem any and all outstanding Rights (as defined in the
Rights Agreement(as defined below)) issued pursuant to that certain Rights
Agreement, dated as of July 30, 2011, between the Corporation and Broadridge
Corporate Issuer Solutions, Inc. (the "Rights Agreement" or the "Poison Pill")
in accordance with Section 23 of the Rights Agreement and to terminate the
Rights Agreement immediately thereafter.
The following is the text of the proposed resolution:
"RESOLVED, that the Stockholders of the Corporation hereby strongly urge
the Board of Directors of the Corporation (the "Board") to immediately redeem
(the "Redemption") any and all outstanding Rights (as defined in the Rights
Agreement (as defined below)) issued pursuant to that certain Rights Agreement,
dated as of July 30, 2011, between the Corporation and Broadridge Corporate
Issuer Solutions, Inc. (the "Rights Agreement") in accordance with Section 23 of
the Rights Agreement and to terminate the Rights Agreement immediately
thereafter; and be it further
RESOLVED, that the Stockholders of the Corporation hereby strongly urge the
Board to not establish any conditions to the Redemption, other than as
specifically required by and set forth in the Rights Agreement; and be it
further
RESOLVED, that the Stockholders of the Corporation hereby strongly urge the
Board to immediately order the Redemption and give immediate public notice of
the Redemption."
Opponents of the Poison Pill Redemption Resolution may argue that it is in
the best interests of the Stockholders to keep the Poison Pill in order to
protect the stockholders against coercive, unfair or inadequate tender offers or
other abusive takeover tactics and to preserve for such stockholders the
long-term value of their investment in the Company.
WE STRONGLY URGE YOU TO VOTE FOR THE POISON PILL REDEMPTION RESOLUTION, BY
MARKING, SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY CARD IN THE
POSTAGE-PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT OR BY USING THE
GOLD PROXY CARD TO VOTE BY TELEPHONE OR INTERNET. IF YOU HAVE SIGNED THE GOLD
PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION
TO VOTE ALL THE SHARES OF COMMON STOCK REPRESENTED BY THE GOLD PROXY CARD FOR
THE POISON PILL REDEMPTION RESOLUTION.
PROPOSAL 3 - POISON PILL BYLAW AMENDMENT
Article II, Section 3 of Commercial Metals' Bylaws provides that the
proposal of business to be transacted by the shareholders may be made at an
Annual Meeting "by any shareholder of record of the corporation (the "Record
Shareholder") at the time of giving of the notice required in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this section." On October 19, 2011, High River, a
record holder of Common Stock, delivered timely notice in accordance with the
foregoing and otherwise in accordance with the Company's Bylaws, notifying
Commercial Metals that High River intends to seek to adopt a resolution (the
"Poison Pill Bylaw Amendment") that would amend the Bylaws to require
Stockholder approval in order to authorize, establish, adopt, or amend any
rights plan, poison pill or similar plan.
The following is the text of the proposed resolution:
"RESOLVED, that the Second Amended and Restated Bylaws of the Corporation
shall be amended to add the following provisions:
ARTICLE XII
POISON PILLS
(a) In addition to any affirmative vote of stockholders required by any
provision of law, the restated certificate of incorporation of the corporation
or these Bylaws, the corporation shall not authorize, establish, adopt, or amend
any Poison Pill (as defined in subsection (b) below) without the affirmative
vote of the holders of a majority of the voting power of all of the
then-outstanding shares of capital stock of the corporation entitled to vote
generally in the election of directors, voting as a single class.
(b) For purposes of these Bylaws, a "Poison Pill" shall mean any plan or
arrangement of the sort commonly referred to as a "rights plan" or "stockholder
rights plan" or "shareholder rights plan" or "poison pill" that is designed to
prevent or make more difficult a hostile takeover of the corporation by
increasing the cost to a potential acquirer in such a takeover either through
the issuance of new rights, shares of common stock or preferred stock or any
other security or device that may be issued to stockholders of the corporation
other than ratably to all stockholders of the corporation that carry severe
redemption provisions, favorable purchase provisions or otherwise.
(c) Notwithstanding Section 7 "Amendment" of Article X of these Bylaws, no
provision of this Article XII may be amended, modified, repealed or superseded
without the affirmative vote of the holders of a majority of the voting power of
all of the then-outstanding shares of capital stock of the corporation entitled
to vote generally in the election of directors, voting as a single class."
Opponents of the Poison Pill Bylaw Amendment may argue that it is in the
best interests of the Stockholders to reject the Poison Pill Bylaw Amendment in
order to protect the stockholders against coercive, unfair or inadequate tender
offers or other abusive takeover tactics and to preserve for such stockholders
the long-term value of their investment in the Company.
WE STRONGLY URGE YOU TO VOTE FOR THE POISON PILL BYLAW AMENDMENT, BY MARKING,
SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY CARD IN THE POSTAGE-PAID
ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT OR BY USING THE GOLD PROXY
CARD TO VOTE BY TELEPHONE OR INTERNET. IF YOU HAVE SIGNED THE GOLD PROXY CARD
AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL
THE SHARES OF COMMON STOCK REPRESENTED BY THE GOLD PROXY CARD FOR THE POISON
PILL BYLAW AMENDMENT.
PROPOSAL 4 - REPEAL OF NEW BYLAWS DESIGNED TO FRUSTRATE THE PROXY FIGHT
Article II, Section 3 of Commercial Metals' Bylaws provides that the
proposal of business to be transacted by the shareholders may be made at an
Annual Meeting "by any shareholder of record of the corporation (the "Record
Shareholder") at the time of giving of the notice required in the following
paragraph, who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this section." On October 19, 2011, High River, a
record holder of Common Stock, delivered timely notice in accordance with the
foregoing and otherwise in accordance with the Company's Bylaws, notifying
Commercial Metals that High River intends to seek to adopt a resolution (the
"Repeal of New Bylaws Designed to Frustrate the Proxy Fight") that would repeal
any provision of the Bylaws in effect at the time of the Annual Meeting that was
not included in the Bylaws as publicly filed with the Securities and Exchange
Commission prior to October 18, 2011, and is inconsistent with any of the
foregoing Proposals that are approved by the Stockholders at the Annual Meeting.
The Record Holder is not aware of any such provision of the Bylaws that has
become effective, but it is possible that between October 18, 2011 and prior to
the adoption of this resolution such a provision could become effective.
The following is the text of the proposed resolution:
"RESOLVED, that any provision of the Second Amended and Restated Bylaws of
Commercial Metals Company as of the effectiveness of this resolution that was
not included in the Bylaws of Commercial Metals Company as publicly filed with
the Securities and Exchange Commission prior to October 18, 2011, and is
inconsistent with any of the proposals approved by stockholders at the 2012
Annual Meeting of the Stockholders of Commercial Metals Company, be and hereby
are repealed."
Opponents of the Repeal of New Bylaws Designed to Frustrate the Proxy Fight
may argue that it is in the best interests of the Stockholders to reject the
proposal because it could have the effect of repealing one or more properly
adopted bylaw amendments that the Board determined to be in the best interests
of the Company and its Stockholders.
WE STRONGLY URGE YOU TO VOTE FOR THE REPEAL OF NEW BYLAWS DESIGNED TO FRUSTRATE
THE PROXY FIGHT, BY MARKING, SIGNING, DATING AND RETURNING THE ENCLOSED GOLD
PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY
STATEMENT OR BY USING THE GOLD PROXY CARD TO VOTE BY TELEPHONE OR INTERNET. IF
YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED
TO HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES OF COMMON STOCK REPRESENTED BY
THE GOLD PROXY CARD FOR THE REPEAL OF NEW BYLAWS DESIGNED TO FRUSTRATE THE PROXY
FIGHT.
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Commercial Metals' Proxy Statement, Commercial Metals is
soliciting proxies with respect to three other proposals. Please refer to
Commercial Metals' Proxy Statement for a detailed discussion of these proposals,
including various arguments in favor of and against such proposals. These
proposals are outlined below.
IF YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE
DEEMED TO HAVE GIVEN A DIRECTION TO VOTE ALL OF THE SHARES OF COMMON STOCK
REPRESENTED BY YOUR GOLD PROXY CARD [ ] PROPOSAL 5 LISTED BELOW, [ ] PROPOSAL
6 LISTED BELOW AND [ ] PROPOSAL 7 LISTED BELOW.
PROPOSAL 5 - RATIFICATION OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
According to Commercial Metals' Proxy Statement, the Company will also
solicit proxies with respect to a proposal for Shareholders to ratify the
appointment of Deloitte & Touche LLP, an independent registered public
accounting firm, as Commercial Metals' independent auditors for the fiscal year
ending August 31, 2012. Please refer to Commercial Metals' Proxy Statement for
a discussion of Proposal 5. The Participants intend to vote, and recommend that
you vote, [ ] Proposal 5.
PROPOSAL 6 - ADVISORY VOTE ON EXECUTIVE COMPENSATION
According to Commercial Metals' Proxy Statement, the Company will also
solicit proxies with respect to a proposal for the Shareholders to approve, on
an advisory, non-binding basis, the compensation of Commercial Metals' Named
Executive Officers. This advisory vote on executive compensation described in
this proposal is commonly referred to as a "say-on-pay vote". Please refer to
Commercial Metals' Proxy Statement for a discussion of Proposal 6. The
Participants intend to vote, and recommend that you vote, [ ] Proposal 6.
PROPOSAL 7 - ADVISORY VOTE ON THE FREQUENCY OF FUTURE ADVISORY VOTES ON
EXECUTIVE COMPENSATION
According to Commercial Metals' Proxy Statement, the Company will also
solicit proxies with respect to a proposal for Shareholders to approve, on an
advisory, non-binding basis, for their preference as to whether the Company
should hold future say-on-pay votes every one, two or three years. Please refer
to Commercial Metals' Proxy Statement for a discussion of Proposal 7. The
Participants intend to vote, and recommend that you vote, [ ] Proposal 7.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, it is intended that the persons named on the enclosed
GOLD proxy card will vote that proxy on such other matters in accordance with
their judgment.
VOTING PROCEDURES
According to Commercial Metals' Proxy Statement, the By-laws and applicable
law, holders of shares of Common Stock, at the close of business on the Record
Date are entitled to notice of, and to vote at, the Annual Meeting. Each share
of Common Stock outstanding on the Record Date is entitled to one vote on each
matter presented at the Annual Meeting.
According to Commercial Metals' Proxy Statement, directors are elected by
plurality vote and cumulative voting is not permitted. Plurality voting means
that the individuals who receive the largest number of votes cast are elected as
directors, up to the maximum number of directors to be chosen at the Annual
Meeting. Consequently, any shares of Common Stock not voted (whether by
abstention, broker non-vote or otherwise) have no impact in the election of
directors.
According to Commercial Metals' Proxy Statement, the affirmative vote of a
majority of shares present or represented at the Annual Meeting and entitled to
vote is required to adopt Proposal 2 - "Poison Pill Redemption Resolution",
Proposal 3 - "Poison Pill Bylaw Amendment", Proposal 4 - "Repeal of New Bylaws
Designed to Frustrate the Proxy Fight", Proposal 5 - "Ratification of the
Appointment of Independent Registered Public Accounting Firm", and Proposal 6 -
"Advisory Vote on Executive Compensation".
According to Commercial Metals' Proxy Statement, Proposal 7 - "Advisory
Vote on the Frequency of Future Advisory Votes on Executive Compensation" is an
advisory vote only and therefore it will not bind the Company or the Board.
Commercial Metals' Proxy Statement further provides that the Board and the
Compensation Committee will consider the voting results as appropriate when
adopting a policy on the frequency of future say-on-pay votes. The option of one
year, two years or three years that receives the highest number of votes cast by
stockholders will be considered by the Board as the stockholders' recommendation
as to the frequency of future say-on-pay votes. Nevertheless, the Board may
decide that it is in the best interests of our stockholders and the Company to
hold say-on-pay votes more or less frequently than the option approved by
stockholders.
A quorum must be present, in person or by proxy, in order for the Company
to hold the Annual Meeting. A quorum is the presence by person or by proxy of a
majority of the shares of Common Stock issued and outstanding and entitled to
vote at the Annual Meeting. The shares of Common Stock represented by a proxy
marked "withhold" or "abstain" and broker non-votes (as described below) will be
considered present at the Annual Meeting for purposes of determining a quorum.
BROKER NON-VOTES
If you hold your shares of Common Stock through a bank, broker or other
nominee and do not provide voting instructions to the record holder of the
shares of Common Stock, your shares of Common Stock will not be voted on any
proposal on which your broker or nominee does not have discretionary authority
to vote. In this case, a "broker non-vote" occurs. Shares of Common Stock
constituting broker non-votes are not counted or deemed to be present or
represented for the purpose of determining whether Shareholders have approved a
matter, but they are counted as present for the purpose of determining a quorum
at the Annual Meeting.
The election of directors at the Annual Meeting is a "non-routine matter"
and brokers do not have discretionary authority to vote your shares of Common
Stock on "non-routine matters." Therefore, unless you provide specific voting
instructions to your broker, your broker will not have discretionary authority
to vote your shares of Common Stock for the election of directors at the Annual
Meeting and your shares of Common Stock will not be voted for the election of
directors. If your shares of Common Stock are held in street name, your broker
or nominee has enclosed a voting instruction card with this Proxy Statement. We
strongly encourage you to vote your shares of Common Stock by following the
instructions provided on the voting instruction card.
As explained in the detailed instructions on your GOLD proxy card, there
are four ways you may vote. You may:
1. Sign, date and return the enclosed GOLD proxy card in the enclosed
postage-paid envelope. We recommend that you vote on the GOLD proxy
card even if you plan to attend the Annual Meeting;
2. Vote via the Internet by following the voting instructions on the
GOLD proxy card or the voting instructions provided by your broker,
bank or other holder of record;
3. Vote by telephone by following the voting instructions on the GOLD
proxy card or the instructions provided by your broker, bank or other
holder of record; or
4. Vote in person by attending the Annual Meeting. Written ballots will
be distributed to Shareholders who wish to vote in person at the
Annual Meeting. If you hold your shares of Common Stock through a
bank, broker or other custodian, you must obtain a legal proxy from
such custodian in order to vote in person at the meeting.
To submit a proxy with voting instructions by telephone please call the
telephone number listed on the GOLD proxy card. Proxies may also be submitted
over the Internet. Please refer to the GOLD proxy card for the website
information. In each case Shareholders will be required to provide the unique
control number which has been printed on each Shareholder's GOLD proxy card. In
addition to the instructions that appear on the GOLD proxy card, step-by-step
instructions will be provided by a recorded telephone message for those
Shareholders submitting proxies by telephone or at the designated website for
those Shareholders submitting proxies over the Internet. Shareholders submitting
their proxies with voting instructions by telephone or over the Internet will
receive confirmation on the telephone that their vote by telephone was
successfully submitted, and may provide an email address for confirmation that
their vote by Internet was successfully submitted.
Whether or not you are able to attend the Annual Meeting, you are urged to
complete the enclosed GOLD proxy and return it in the enclosed self-addressed,
postage-paid envelope. All valid proxies received prior to the meeting will be
voted. If you specify a choice with respect to any item by marking the
appropriate box on the proxy, the shares of Common Stock will be voted in
accordance with that specification. IF NO SPECIFICATION IS MADE, THE SHARES OF
COMMON STOCK WILL BE VOTED (I) FOR JAMES UNGER, STEVE MONGILLO AND GEORGE HEBARD
FOR DIRECTORS; (II) FOR THE POISON PILL REDEMPTION RESOLUTION, (III) FOR THE
POISON PILL BYLAW AMENDMENT (IV) FOR THE REPEAL OF NEW BYLAWS DESIGNED TO
FRUSTRATE THE PROXY FIGHT, (V) [ ] THE RATIFICATION OF THE APPOINTMENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM, (VI) [ ] THE ADVISORY VOTE ON
EXECUTIVE COMPENSATION, (VII) [ ] YEAR FOR AN ADVISORY VOTE ON THE FREQUENCY OF
FUTURE ADVISORY VOTES ON EXECUTIVE COMPENSATION, AND (VIII) IN THE PROXY
HOLDERS' DISCRETION AS TO OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL
MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 967-7921
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
PROXY PROCEDURES
IN ORDER TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE
PARTICIPANTS AT THE ANNUAL MEETING, PLEASE MARK, SIGN, DATE AND RETURN THE
ENCLOSED GOLD PROXY CARD IN THE ENCLOSED POSTAGE-PAID ENVELOPE OR USE THE GOLD
PROXY CARD TO VOTE BY TELEPHONE OR INTERNET.
The accompanying GOLD proxy card will be voted at the Annual Meeting in
accordance with your instructions on such card.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a Shareholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares of Common Stock after the Record Date. Accordingly, it is important that
you vote the shares of Common Stock held by you on the Record Date, or grant a
proxy to vote such shares of Common Stock on the GOLD proxy card, even if you
sell such shares of Common Stock after the Record Date.
IF YOUR SHARES OF COMMON STOCK ARE HELD IN THE NAME OF A BROKERAGE FIRM,
BANK, BANK NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE
SUCH SHARES OF COMMON STOCK AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS.
ACCORDINGLY, IF YOU WISH TO SUPPORT THE NOMINEES AND VOTE AS RECOMMENDED BY THE
PARTICIPANTS AT THE ANNUAL MEETING PLEASE CONTACT THE PERSON RESPONSIBLE FOR
YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF THE GOLD PROXY
CARD AS SOON AS POSSIBLE.
REVOCATION OF PROXIES
Any Shareholder of record may revoke or change his or her proxy
instructions at any time prior to the vote at the Annual Meeting by:
- submitting a properly executed, subsequently dated GOLD proxy card
that will revoke all prior proxy cards, including any white proxy
cards which you may have submitted to Commercial Metals;
- submitting a properly executed, subsequently dated WHITE proxy card
that will revoke all prior proxy cards, including any gold proxy cards
which you may have submitted to Commercial Metals;
- instructing the Participants by telephone or via the Internet as to
how you would like your shares of Common Stock voted (instructions are
on your GOLD proxy card);
- attending the Annual Meeting and withdrawing his or her proxy by
voting in person (although attendance at the Annual Meeting will not
in and of itself constitute revocation of a proxy); or
- delivering written notice of revocation either to the Participants
c/o D.F. King & Co., Inc., 48 Wall Street, 22nd Floor, New York, NY
10005, or the Corporate Secretary of Commercial Metals at 6565 North
MacArthur Boulevard, Suite 800, Irving, Texas 75039.
IF YOU PREVIOUSLY SIGNED AND RETURNED A WHITE PROXY CARD TO COMMERCIAL
METALS, WE URGE YOU TO REVOKE IT BY (1) MARKING, SIGNING, DATING AND RETURNING
THE GOLD PROXY CARD, (2) INSTRUCTING US BY TELEPHONE OR VIA THE INTERNET AS TO
HOW YOU WOULD LIKE YOUR SHARES OF COMMON STOCK VOTED WITH RESPECT TO THE GOLD
PROXY CARD, (3) ATTENDING THE ANNUAL MEETING AND VOTING IN PERSON OR (4)
DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE PARTICIPANTS OR TO THE
CORPORATE SECRETARY OF THE COMPANY.
If you attend the Annual Meeting and you beneficially own shares of Common
Stock but are not the record owner, your mere attendance at the Annual Meeting
WILL NOT be sufficient to revoke your prior given proxy card. You must have
written authority from the record owner to vote the shares of Common Stock in
its name at the meeting. Contact D.F. King & Co., Inc. at the number shown in
this Proxy Statement for assistance or if you have any questions.
Although a revocation is effective if delivered to Commercial Metals, the
Participants request that either the original or a copy of any revocation be
mailed to the Participants c/o D.F. King & Co., Inc., 48 Wall Street, 22nd
Floor, New York, NY 10005, so that the Participants will be aware of all
revocations.
COST AND METHOD OF SOLICITATION
Solicitation of proxies will be made by Messrs. Icahn, Unger, Mongillo and
Hebard.
Icahn Capital has retained D.F. King & Co., Inc. ("D.F. King") to conduct
the solicitation, for which D.F. King is to receive a fee of up to [ ]. Icahn
Capital has agreed to indemnify D.F. King against certain liabilities and
expenses, including certain liabilities under the federal securities laws.
Insofar as indemnification for liabilities arising under the federal securities
laws may be permitted to D.F. King pursuant to the foregoing provisions, we have
been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy and is therefore unenforceable.
Proxies may be solicited by mail, courier services, Internet, advertising,
telephone or telecopier or in person. It is anticipated that D.F. King will
employ up to 100 persons to solicit proxies from Commercial Metals' Shareholders
for the Annual Meeting. The total expenditures in furtherance of, or in
connection with, the solicitation of proxies is approximately [ ] to date, and
is estimated to be [ ] in total.
The Participants will pay all costs associated with this solicitation. The
Participants do not intend to seek reimbursement for the costs and expenses
associated with the proxy solicitation in the event that any of the Nominees are
elected to the Board of Directors of Commercial Metals.
ADDITIONAL INFORMATION
Certain information regarding the securities of Commercial Metals held by
Commercial Metals' directors, management and 5% Shareholders is contained in
Commercial Metals' Proxy Statement. Information concerning the date by which
proposals of security holders intended to be presented at the next annual
meeting of Shareholders of Commercial Metals must be received by Commercial
Metals for inclusion in the Commercial Metals' Proxy Statement and form of proxy
for that meeting is also contained in Commercial Metals' Proxy Statement. This
information is expected to be contained in Commercial Metals' public filings.
The Participants take no responsibility for the accuracy or completeness of such
information contained in Commercial Metals' public filings.
Date: [ ]
CARL C. ICAHN
JAMES UNGER
STEVE MONGILLO
GEORGE HEBARD
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
ICAHN ONSHORE LP
ICAHN OFFSHORE LP
ICAHN CAPITAL L.P.
IPH GP LLC
ICAHN ENTERPRISES HOLDINGS L.P.
ICAHN ENTERPRISES G.P. INC.
BECKTON CORP.
ANNEX A
SECURITY OWNERSHIP OF THE PARTICIPANTS
(1) TITLE OF (2) NAME OF (3) AMOUNT OF (4) PERCENT OF
CLASS BENEFICIAL BENEFICIAL CLASS (2)
OWNER (1) OWNERSHIP
-------- ---------- ---------- ----------
Common Stock, par High River 2,304,999 2.00%
value $0.10 per
share ("Shares")
Shares Icahn Partners 3,531,955 3.06%
Shares Icahn Master 3,808,353 3.30%
Shares Icahn Master II 1,310,448 1.13%
Shares Icahn Master III 569,245 0.49%
_________________________
(1) Please note that each Holder listed in this table is, as of the date of
this Notice, the direct beneficial owner of the Shares set forth under the
heading "(3) Amount of Beneficial Ownership" and that indirect beneficial
ownership of Shares is described below in the text of this Annex A under
the heading "Description of Beneficial Ownership and Beneficial Owners.
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 115,534,330 Shares stated to be outstanding as of
October 21, 2011 by the Company in the Company's Form 10-K filed for the
fiscal year ended August 31, 2011.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River Limited Partnership ("High River"). Beckton
Corp., a Delaware corporation ("Beckton") is the sole stockholder of Icahn
Enterprises G.P. Inc., a Delaware corporation ("Icahn Enterprises GP"), which is
the general partner of Icahn Enterprises Holdings L.P., a Delaware limited
partnership ("Icahn Holdings"). Icahn Holdings is the sole member of IPH GP LLC,
a Delaware limited liability company ("IPH"), which is the general partner of
Icahn Capital L.P., a Delaware limited partnership ("Icahn Capital"). Icahn
Capital is the general partner of each of Icahn Onshore LP, a Delaware limited
partnership ("Icahn Onshore") and Icahn Offshore LP, a Delaware limited
partnership ("Icahn Offshore"). Icahn Onshore is the general partner of Icahn
Partners LP, a Delaware limited partnership ("Icahn Partners"). Icahn Offshore
is the general partner of each of Icahn Partners Master Fund LP, a Cayman
Islands exempted limited partnership ("Icahn Master"), Icahn Partners Master
Fund II LP, a Cayman Islands exempted limited partnership ("Icahn Master II")
and Icahn Master Fund III LP, a Cayman Islands exempted limited partnership
("Icahn Master III", and together with High River, Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III, the "Direct Beneficial Owners"). Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore, Icahn Offshore, the "Beneficial
Owners" and each of them a "Beneficial Owner." As such, Mr. Icahn is in a
position indirectly to determine the investment and voting decisions made by
each of the Direct Beneficial Owners. In addition, Mr. Icahn is the indirect
holder of approximately 92.6% of the outstanding depositary units representing
limited partnership interests in Icahn Enterprises L.P. ("Icahn Enterprises").
Icahn Enterprises GP is the general partner of Icahn Enterprises, which is the
sole limited partner of Icahn Holdings.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue,
47th Floor, New York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises L.P. and Icahn Holdings. Beckton is
primarily engaged in the business of holding the capital stock of Icahn
Enterprises GP. Mr. Carl C. Icahn is primarily engaged in serving as (i) Chief
Executive Officer of Icahn Capital LP, a wholly owned subsidiary of Icahn
Enterprises L.P., through which Mr. Icahn manages various private investment
funds, including Icahn Partners, Icahn Master, Icahn Master II and Icahn Master
III, (ii) Chairman of the Board of Icahn Enterprises GP, the general partner of
Icahn Enterprises L.P., a New York Stock Exchange listed diversified holding
company engaged in a variety of businesses, including investment management,
automotive, casino gaming, railcar, food packaging, metals, real estate and home
fashion, and (iii) Chairman of the Board and a director of Starfire Holding
Corporation ("Starfire"), a holding company engaged in the business of investing
in and/or holding securities of various entities, and as Chairman of the Board
and a director of various of Starfire's subsidiaries.
The Direct Beneficial Owners and the Beneficial Owners may be deemed to
beneficially own, in the aggregate, 11,525,000 Shares, representing
approximately 9.98% of the Corporation's outstanding Shares (based upon the
115,534,330 Shares stated to be outstanding as of October 21, 2011 by the
Corporation in the Corporation's Form 10-K filed for the fiscal year ended
August 31, 2011).
High River has sole voting power and sole dispositive power with regard to
2,304,999 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Partners has sole
voting power and sole dispositive power with regard to 3,531,955 Shares. Each of
Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton
and Mr. Icahn has shared voting power and shared dispositive power with regard
to such Shares. Icahn Master has sole voting power and sole dispositive power
with regard to 3,808,353 Shares. Each of Icahn Offshore, Icahn Capital, IPH,
Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting
power and shared dispositive power with regard to such Shares. Icahn Master II
has sole voting power and sole dispositive power with regard to 1,310,448
Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Master III has sole voting
power and sole dispositive power with regard to 569,245 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and shared dispositive power with regard to
such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 2,304,999 Shares
which High River directly beneficially owns. Each of Icahn Onshore, Icahn
Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by
virtue of their relationships to Icahn Partners, may be deemed to indirectly
beneficially own the 3,531,955 Shares which Icahn Partners directly beneficially
owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Master, Icahn Master II and Icahn Master III, may be deemed to indirectly
beneficially own the 5,688,046 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares,
as well as the exercise of call options, by Mr. Icahn and his affiliates within
the past two years, and the number of shares in each such purchase and sale, or
exercise of call options.
NAME DATE SHARES PURCHASED/CALL OPTIONS EXERCISED
---- ---- ---------------------------------------
High River 8/12/2010 1,000.00
High River 8/12/2010 8,560.00
High River 8/13/2010 180,000.00
High River 8/16/2010 35,826.00
High River 8/17/2010 80.00
High River 8/18/2010 420.00
High River 8/19/2010 2,340.00
High River 8/20/2010 15,060.00
High River 8/23/2010 40,000.00
High River 8/24/2010 68,837.00
High River 8/25/2010 50,020.00
High River 8/26/2010 90,740.00
High River 8/27/2010 55,040.00
High River 8/30/2010 28,540.00
High River 8/31/2010 37,100.00
High River 9/1/2010 640.00
High River 9/2/2010 60.00
High River 10/29/2010 2,920.00
High River 11/10/2010 30,000.00
High River 11/11/2010 8,580.00
High River 11/12/2010 117,483.00
High River 11/15/2010 60,000.00
High River 11/16/2010 60,000.00
High River 11/17/2010 30,000.00
High River 6/17/2011 47,593.00
High River 7/15/2011 7,000.00
High River 9/1/2011 1,327,160.00 (3)
Icahn Partners 8/12/2010 14,566.00
Icahn Partners 8/13/2010 274,247.00
Icahn Partners 8/16/2010 54,585.00
Icahn Partners 8/17/2010 122.00
Icahn Partners 8/18/2010 640.00
Icahn Partners 8/19/2010 3,565.00
Icahn Partners 8/20/2010 22,946.00
Icahn Partners 8/23/2010 60,944.00
Icahn Partners 8/24/2010 104,879.00
Icahn Partners 8/25/2010 76,210.00
Icahn Partners 8/26/2010 138,251.00
Icahn Partners 8/27/2010 83,859.00
Icahn Partners 8/30/2010 43,483.00
Icahn Partners 8/31/2010 56,526.00
Icahn Partners 9/1/2010 171.00
Icahn Partners 9/2/2010 98.00
Icahn Partners 10/29/2010 5,720.00
Icahn Partners 11/10/2010 47,547.00
Icahn Partners 11/11/2010 13,103.00
Icahn Partners 11/12/2010 179,417.00
Icahn Partners 11/15/2010 91,630.00
Icahn Partners 11/16/2010 91,630.00
Icahn Partners 11/17/2010 45,815.00
Icahn Partners 6/17/2011 72,902.00
Icahn Partners 7/15/2011 10,726.00
Icahn Partners 9/1/2011 2,038,373.00 (3)
Icahn Master 8/12/2010 16,522.00
Icahn Master 8/13/2010 311,077.00
Icahn Master 8/16/2010 61,916.00
Icahn Master 8/17/2010 139.00
Icahn Master 8/18/2010 725.00
Icahn Master 8/19/2010 4,043.00
Icahn Master 8/20/2010 26,029.00
Icahn Master 8/23/2010 69,127.00
Icahn Master 8/24/2010 118,964.00
Icahn Master 8/25/2010 86,445.00
Icahn Master 8/26/2010 156,817.00
Icahn Master 8/27/2010 95,121.00
Icahn Master 8/30/2010 49,324.00
Icahn Master 8/31/2010 64,116.00
Icahn Master 9/1/2010 451.00
Icahn Master 9/2/2010 110.00
Icahn Master 10/29/2010 5,324.00
Icahn Master 11/10/2010 52,607.00
Icahn Master 11/11/2010 14,834.00
Icahn Master 11/12/2010 203,106.00
Icahn Master 11/15/2010 103,729.00
Icahn Master 11/16/2010 103,729.00
Icahn Master 11/17/2010 51,862.00
Icahn Master 6/17/2011 78,734.00
Icahn Master 7/15/2011 11,567.00
Icahn Master 9/1/2011 2,121,935.00 (3)
Icahn Master II 8/12/2010 4,817.00
Icahn Master II 8/13/2010 90,691.00
Icahn Master II 8/16/2010 18,051.00
Icahn Master II 8/17/2010 38.00
Icahn Master II 8/18/2010 213.00
Icahn Master II 8/19/2010 1,180.00
Icahn Master II 8/20/2010 7,585.00
Icahn Master II 8/23/2010 20,155.00
Icahn Master II 8/24/2010 34,682.00
Icahn Master II 8/25/2010 25,202.00
Icahn Master II 8/26/2010 45,718.00
Icahn Master II 8/27/2010 27,731.00
Icahn Master II 8/30/2010 14,379.00
Icahn Master II 8/31/2010 18,693.00
Icahn Master II 9/1/2010 1,938.00
Icahn Master II 9/2/2010 32.00
Icahn Master II 11/10/2010 12,754.00
Icahn Master II 11/11/2010 4,293.00
Icahn Master II 11/12/2010 58,790.00
Icahn Master II 11/15/2010 30,025.00
Icahn Master II 11/16/2010 30,024.00
Icahn Master II 11/17/2010 15,015.00
Icahn Master II 6/17/2011 26,993.00
Icahn Master II 7/15/2011 3,979.00
Icahn Master II 9/1/2011 817,470.00 (3)
Icahn Master III 8/12/2010 2,335.00
Icahn Master III 8/13/2010 43,985.00
Icahn Master III 8/16/2010 8,754.00
Icahn Master III 8/17/2010 21.00
Icahn Master III 8/18/2010 102.00
Icahn Master III 8/19/2010 572.00
Icahn Master III 8/20/2010 3,680.00
Icahn Master III 8/23/2010 9,774.00
Icahn Master III 8/24/2010 16,821.00
Icahn Master III 8/25/2010 12,223.00
Icahn Master III 8/26/2010 22,174.00
Icahn Master III 8/27/2010 13,449.00
Icahn Master III 8/30/2010 6,974.00
Icahn Master III 8/31/2010 9,065.00
Icahn Master III 10/29/2010 636.00
Icahn Master III 11/10/2010 7,092.00
Icahn Master III 11/11/2010 2,090.00
Icahn Master III 11/12/2010 28,619.00
Icahn Master III 11/15/2010 14,616.00
Icahn Master III 11/16/2010 14,617.00
Icahn Master III 11/17/2010 7,308.00
Icahn Master III 6/17/2011 11,744.00
Icahn Master III 7/15/2011 1,728.00
Icahn Master III 9/1/2011 330,866.00 (3)
_________________________
(3) The Direct Beneficial Owner acquired these Shares upon the exercise of
call options as described on Attachment I-A to this Annex A.
Shares purchased by each of the Direct Beneficial Owners are maintained in
margin accounts that include positions in securities in addition to the Shares.
As of [ ], 2011, the indebtedness of (i) High River's margin account was
approximately $[ ] million, (ii) Icahn Partners' margin account was
approximately $[ ] million, (iii) Icahn Master's margin account was
approximately $[ ] million, (iv) Icahn Master II's margin account was
approximately $[ ] million, and (v) Icahn Master III's margin account was
approximately $[ ] million.
ANNEX A
ATTACHMENT 1-A
The following are American call options to purchase one Share of underlying
common stock, purchased by the Direct Beneficial Owners, which were written by
UBS AG with a $9.10 strike price and an expiration date of November 16, 2012,
and which provided for physical settlement (unless the Direct Beneficial Owner
opted for a cash settlement). These call options are further described in the
chart set forth below.
On September 1, 2011, the Direct Beneficial Owners exercised all of their
respective call options.
NAME DATE QUANTITY
---- ---- ---------
High River 11/17/2010 11,240.00
High River 11/18/2010 8,260.00
High River 11/19/2010 5,784.00
High River 6/16/2011 86,289.00
High River 6/20/2011 8,537.00
High River 7/8/2011 45,044.00
High River 7/15/2011 11,000.00
High River 7/18/2011 105,062.00
High River 7/19/2011 107,394.00
High River 7/20/2011 80,000.00
High River 7/21/2011 160,000.00
High River 7/22/2011 186,003.00
High River 7/25/2011 91,962.00
High River 7/26/2011 170,335.00
High River 7/27/2011 133,288.00
High River 7/28/2011 116,962.00
Icahn Partners 11/17/2010 17,165.00
Icahn Partners 11/18/2010 12,615.00
Icahn Partners 11/19/2010 8,833.00
Icahn Partners 6/16/2011 136,543.00
Icahn Partners 6/20/2011 13,076.00
Icahn Partners 7/8/2011 69,597.00
Icahn Partners 7/15/2011 16,855.00
Icahn Partners 7/18/2011 160,988.00
Icahn Partners 7/19/2011 164,560.00
Icahn Partners 7/20/2011 122,584.00
Icahn Partners 7/21/2011 245,168.00
Icahn Partners 7/22/2011 285,013.00
Icahn Partners 7/25/2011 140,913.00
Icahn Partners 7/26/2011 261,005.00
Icahn Partners 7/27/2011 204,238.00
Icahn Partners 7/28/2011 179,220.00
Icahn Master 11/17/2010 19,432.00
Icahn Master 11/18/2010 14,280.00
Icahn Master 11/19/2010 10,000.00
Icahn Master 6/16/2011 72,083.00
Icahn Master 6/20/2011 14,123.00
Icahn Master 7/8/2011 72,134.00
Icahn Master 7/15/2011 18,174.00
Icahn Master 7/18/2011 173,586.00
Icahn Master 7/19/2011 177,437.00
Icahn Master 7/20/2011 132,179.00
Icahn Master 7/21/2011 264,354.00
Icahn Master 7/22/2011 307,317.00
Icahn Master 7/25/2011 151,941.00
Icahn Master 7/26/2011 281,430.00
Icahn Master 7/27/2011 220,219.00
Icahn Master 7/28/2011 193,246.00
Icahn Master II 11/17/2010 5,625.00
Icahn Master II 11/18/2010 4,133.00
Icahn Master II 11/19/2010 2,893.00
Icahn Master II 6/16/2011 112,238.00
Icahn Master II 6/20/2011 4,842.00
Icahn Master II 7/8/2011 27,111.00
Icahn Master II 7/15/2011 6,254.00
Icahn Master II 7/18/2011 59,730.00
Icahn Master II 7/19/2011 61,056.00
Icahn Master II 7/20/2011 45,481.00
Icahn Master II 7/21/2011 90,964.00
Icahn Master II 7/22/2011 105,748.00
Icahn Master II 7/25/2011 52,282.00
Icahn Master II 7/26/2011 96,841.00
Icahn Master II 7/27/2011 75,776.00
Icahn Master II 7/28/2011 66,496.00
Icahn Master III 11/17/2010 2,738.00
Icahn Master III 11/18/2010 2,012.00
Icahn Master III 11/19/2010 1,410.00
Icahn Master III 6/16/2011 24,293.00
Icahn Master III 6/20/2011 2,108.00
Icahn Master III 7/8/2011 11,334.00
Icahn Master III 7/15/2011 2,717.00
Icahn Master III 7/18/2011 25,946.00
Icahn Master III 7/19/2011 26,523.00
Icahn Master III 7/20/2011 19,756.00
Icahn Master III 7/21/2011 39,514.00
Icahn Master III 7/22/2011 45,935.00
Icahn Master III 7/25/2011 22,712.00
Icahn Master III 7/26/2011 42,066.00
Icahn Master III 7/27/2011 32,917.00
Icahn Master III 7/28/2011 28,885.00
ANNEX A
ATTACHMENT 1-B
The following are European put options to sell one Share of common stock,
which were written by the Direct Beneficial Owners to UBS AG and had a $9.10
strike price and an expiration date of November 16, 2012 or the date on which
the corresponding American-style call option described in Annex A, Attachment
1-A is exercised. These options provided that they settled in cash and are
further described in the chart set forth below.
On September 1, 2011, the Direct Beneficial Owners exercised all of the
call options described in Annex A, Attachment 1-A, and upon exercise of the call
options, all of the put options described below expired pursuant to their terms.
NAME DATE QUANTITY
---- ---- ---------
High River 11/17/2010 11,240.00
High River 11/18/2010 8,260.00
High River 11/19/2010 5,784.00
High River 6/16/2011 86,289.00
High River 6/20/2011 8,537.00
High River 7/8/2011 45,044.00
High River 7/15/2011 11,000.00
High River 7/18/2011 105,062.00
High River 7/19/2011 107,394.00
High River 7/20/2011 80,000.00
High River 7/21/2011 160,000.00
High River 7/22/2011 186,003.00
High River 7/25/2011 91,962.00
High River 7/26/2011 170,335.00
High River 7/27/2011 133,288.00
High River 7/28/2011 116,962.00
Icahn Partners 11/17/2010 17,165.00
Icahn Partners 11/18/2010 12,615.00
Icahn Partners 11/19/2010 8,833.00
Icahn Partners 6/16/2011 136,543.00
Icahn Partners 6/20/2011 13,076.00
Icahn Partners 7/8/2011 69,597.00
Icahn Partners 7/15/2011 16,855.00
Icahn Partners 7/18/2011 160,988.00
Icahn Partners 7/19/2011 164,560.00
Icahn Partners 7/20/2011 122,584.00
Icahn Partners 7/21/2011 245,168.00
Icahn Partners 7/22/2011 285,013.00
Icahn Partners 7/25/2011 140,913.00
Icahn Partners 7/26/2011 261,005.00
Icahn Partners 7/27/2011 204,238.00
Icahn Partners 7/28/2011 179,220.00
Icahn Master 11/17/2010 19,432.00
Icahn Master 11/18/2010 14,280.00
Icahn Master 11/19/2010 10,000.00
Icahn Master 6/16/2011 72,083.00
Icahn Master 6/20/2011 14,123.00
Icahn Master 7/8/2011 72,134.00
Icahn Master 7/15/2011 18,174.00
Icahn Master 7/18/2011 173,586.00
Icahn Master 7/19/2011 177,437.00
Icahn Master 7/20/2011 132,179.00
Icahn Master 7/21/2011 264,354.00
Icahn Master 7/22/2011 307,317.00
Icahn Master 7/25/2011 151,941.00
Icahn Master 7/26/2011 281,430.00
Icahn Master 7/27/2011 220,219.00
Icahn Master 7/28/2011 193,246.00
Icahn Master II 11/17/2010 5,625.00
Icahn Master II 11/18/2010 4,133.00
Icahn Master II 11/19/2010 2,893.00
Icahn Master II 6/16/2011 112,238.00
Icahn Master II 6/20/2011 4,842.00
Icahn Master II 7/8/2011 27,111.00
Icahn Master II 7/15/2011 6,254.00
Icahn Master II 7/18/2011 59,730.00
Icahn Master II 7/19/2011 61,056.00
Icahn Master II 7/20/2011 45,481.00
Icahn Master II 7/21/2011 90,964.00
Icahn Master II 7/22/2011 105,748.00
Icahn Master II 7/25/2011 52,282.00
Icahn Master II 7/26/2011 96,841.00
Icahn Master II 7/27/2011 75,776.00
Icahn Master II 7/28/2011 66,496.00
Icahn Master III 11/17/2010 2,738.00
Icahn Master III 11/18/2010 2,012.00
Icahn Master III 11/19/2010 1,410.00
Icahn Master III 6/16/2011 24,293.00
Icahn Master III 6/20/2011 2,108.00
Icahn Master III 7/8/2011 11,334.00
Icahn Master III 7/15/2011 2,717.00
Icahn Master III 7/18/2011 25,946.00
Icahn Master III 7/19/2011 26,523.00
Icahn Master III 7/20/2011 19,756.00
Icahn Master III 7/21/2011 39,514.00
Icahn Master III 7/22/2011 45,935.00
Icahn Master III 7/25/2011 22,712.00
Icahn Master III 7/26/2011 42,066.00
Icahn Master III 7/27/2011 32,917.00
Icahn Master III 7/28/2011 28,885.00
ANNEX B
[FORM OF NOMINEE AGREEMENT]
October 17, 2011
To the undersigned potential nominee:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of Commercial
Metals Company (the "Company") in connection with a proxy contest with
management of the Company in respect of the election of directors of the Company
at the 2012 Annual Meeting of Stockholders of Commercial Metals Company (the
"Annual Meeting"), expected to be held in early 2012, or a special meeting of
stockholders of the Company called for a similar purpose (the "Proxy Contest").
Icahn Capital LP ("Icahn") agrees to pay the costs of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC,
which indicates that Icahn, or an affiliate thereof, intends to nominate you for
election at the Annual Meeting, you will be entitled to be paid $25,000 by Icahn
unless you are elected to serve as a director of the Company at the Annual
Meeting or a special meeting of stockholders of the Company called for a similar
purpose or in connection with a settlement of the Proxy Contest by Icahn and the
Company, in which case you will not receive any payment from Icahn in connection
with the Proxy Contest. Payment to you pursuant to this paragraph, if any, will
be made by Icahn, subject to the terms hereof, upon the earliest of (i) the
certification of the results of the election in respect of the Proxy Contest,
(ii) the settlement of the Proxy Contest by Icahn and the Company, or (iii) the
withdrawal of the Proxy Contest by Icahn (4).
You understand that it may be difficult, if not impossible, to replace
nominees who, such as yourself, have agreed to serve on the Slate and later
change their minds and determine not to seek election. Accordingly, the Slate is
relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information
necessary for Icahn to make appropriate disclosure both to the Company and for
use in creating the proxy material to be sent to shareholders of the Company and
to be filed with the Securities and Exchange Commission. You have agreed that
(i) you will immediately complete and sign the questionnaire and return it to
Andrew Langham, Assistant General Counsel, Icahn Enterprises LP, 767 Fifth
Avenue, Suite 4700, New York, NY 10153, Tel: (212) 702-4382, Fax: (212)
688-1158, Email: alangham@sfire.com and (ii) your responses to the questions
contained therein will be true and correct in all respects. In addition, you
have agreed that, concurrently with your execution of this letter, you will
execute the attached instrument directed to the Company informing the Company
that you consent to being nominated by Icahn, or an affiliate thereof, for
election as a director of the Company and, if elected, consent to serving as a
director of the Company. Upon being notified that we have chosen you, we may
forward that instrument and your completed questionnaire (or summaries thereof)
to the Company.
Icahn hereby agrees that, so long as you actually serve on the Slate, Icahn
will defend, indemnify and hold you harmless from and against any and all
losses, damages, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys' fees, costs,
expenses and disbursements) incurred by you in the event that (i) you become a
party, or are threatened to be made a party, to any civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal thereof
relating solely to your role as a nominee for director of Commercial Metals
Company on the Slate (a "Proceeding") or (ii) you are called to testify or give
a deposition in any Proceeding (whether or not you are a party or are threatened
to be made a party to such Proceeding), including, in each case, the advancement
to you of all reasonable attorneys' costs and expenses incurred by you in
connection with any Proceeding. Your right of indemnification hereunder shall
continue (i) in the event that Icahn determines to withdraw the Slate or remove
you from the Slate and (ii) after the election has taken place but only for
events which occur prior to such election and subsequent to the date hereof.
Anything to the contrary herein notwithstanding, Icahn is not indemnifying you
for any action taken by you or on your behalf which occurs prior to the date
hereof or subsequent to the Annual Meeting or such earlier time as you are no
longer a nominee of the Slate for election to the Company's Board of Directors
or for any actions taken by you as a director of the Company, if you are
elected. Nothing herein shall be construed to provide you an indemnity: (i) in
the event you are found to have engaged in a violation of any provision of state
or federal law in connection with the Proxy Contest unless you demonstrate that
your action was taken in good faith and in a manner you reasonably believed to
be in or not opposed to the best interests of electing the Slate; or (ii) if you
acted in a manner which constitutes gross negligence or willful misconduct. In
the event that you shall make any claim for indemnification hereunder, you shall
promptly notify Icahn in the event of any third-party claims actually made
against you or known by you to be threatened. In addition, with respect to any
_________________________
(4) This paragraph does not appear in the Nominee Agreement signed by Mr.
Hebard.
such claim, Icahn shall be entitled to control your defense with counsel chosen
by Icahn. Icahn shall not be responsible for any settlement of any claim against
you covered by this indemnity without its prior written consent. However, Icahn
may not enter into any settlement of any such claim without your consent unless
such settlement includes a release of you from any and all liability in respect
of such claim.
Each of us recognizes that should you be elected to the Board of Directors
of the Company all of your activities and decisions as a director will be
governed by applicable law and subject to your fiduciary duty to the
stockholders of the Company and, as a result, that there is, and can be, no
agreement between you and Icahn which governs the decisions which you will make
as a director of the Company.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
ICAHN CAPITAL LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
__________________________
Name:
IMPORTANT
---------
1. If your shares of Common Stock are held in your own name, please mark,
date and mail the enclosed GOLD proxy card to our Proxy Solicitor, D.F. King &
Co., Inc., in the postage-paid envelope provided.
2. If your shares of Common Stock are held in the name of a brokerage firm,
bank nominee or other institution, only it can vote such shares of Common Stock
and only upon receipt of your specific instructions. Accordingly, you should
contact the person responsible for your account and give instructions for a GOLD
proxy card to be signed representing your shares of Common Stock.
3. If you have already submitted a white proxy card to Commercial Metals
for the Annual Meeting, you may change your vote to a vote FOR the election of
the Nominees and FOR the Proposals by marking, signing, dating and returning the
enclosed GOLD proxy card for the Annual Meeting, which must be dated after any
proxy you may have submitted to Commercial Metals. You may also submit your
later-dated proxy by using the enclosed GOLD proxy card to vote by telephone or
by Internet. ONLY YOUR LATEST DATED PROXY FOR THE ANNUAL MEETING WILL COUNT AT
THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
D.F. KING & CO., INC.
SHAREHOLDERS CALL TOLL-FREE: (800) 967-7921
BANKS AND BROKERAGE FIRMS CALL: (212) 269-5550
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
COMMERCIAL METALS COMPANY
ANNUAL MEETING OF SHAREHOLDERS
_____________, 2012
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY: CARL C. ICAHN, JAMES UNGER, STEVE MONGILLO, GEORGE
HEBARD, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP.,
ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II
L.P., ICAHN PARTNERS MASTER FUND III L.P., ICAHN ENTERPRISES G.P. INC., ICAHN
ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN ONSHORE LP,
ICAHN OFFSHORE LP AND BECKTON CORP. (THE "PARTICIPANTS")
VOTING CONTROL NUMBER: ________________
THERE ARE THREE WAYS TO AUTHORIZE THE PROXIES TO CAST YOUR VOTES.
YOUR TELEPHONE OR INTERNET VOTE AUTHORIZES THE NAMED PROXIES TO VOTE
YOUR SHARES IN THE SAME MANNER AS IF YOU HAD RETURNED YOUR PROXY CARD.
WE ENCOURAGE YOU TO USE THESE COST EFFECTIVE AND CONVENIENT WAYS OF
VOTING, 24 HOURS A DAY, 7 DAYS A WEEK.
TELEPHONE VOTING INTERNET VOTING VOTING BY MAIL
This method of voting is Visit the Internet voting Simply sign and date
available for residents of Web site at [ ]. Have this your proxy card and
the US and Canada. On a proxy card ready and follow return it in the post-
touch-tone telephone, call the instructions on your age-paid envelope to
TOLL FREE [ ], 24 hours a screen. You will incur on- D.F. King & Co., Inc.,
day, 7 days a week. Have ly your usual Internet c/o ____. If you are
this proxy card ready, then charges. Available 24 voting by telephone or
follow the prerecorded in- hours a day, 7 days a the Internet, please
structions. Your vote will week until ___ a.m. do not mail your proxy
be confirmed and cast as (Central Standard Time) card.
you have directed. Avail- on [ ], 2012.
able 24 hours a day, 7
days a week until ___ a.m.
(Central Standard Time)
on [ ], 2012.
DETACH BELOW AND RETURN USING THE ENVELOPE PROVIDED ONLY IF YOU ARE VOTING BY
MAIL
YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL, MUST BE RECEIVED NO LATER
THAN [ ] TO BE INCLUDED IN THE VOTING RESULTS.
DETACH HERE
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
COMMERCIAL METALS COMPANY
ANNUAL MEETING OF SHAREHOLDERS
_____________, 2012
GOLD PROXY CARD GOLD PROXY CARD
THIS PROXY IS SOLICITED BY:
CARL C. ICAHN, JAMES UNGER, STEVE MONGILLO, GEORGE HEBARD, HIGH RIVER LIMITED
PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP., ICAHN PARTNERS LP, ICAHN
PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P., ICAHN PARTNERS
MASTER FUND III L.P., ICAHN ENTERPRISES G.P. INC., ICAHN ENTERPRISES HOLDINGS
L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN ONSHORE LP, ICAHN OFFSHORE LP AND
BECKTON CORP. (THE "PARTICIPANTS").
The undersigned hereby appoints and constitutes each of Steve Mongillo and
George Hebard (acting alone or together) as proxies, with full power of
substitution in each, to represent the undersigned at the Annual Meeting of
Shareholders of Commercial Metals Company ("Commercial Metals") to be held on
____________, 2012 at ____ (Central Standard Time) at _______________, and at
any adjournment or postponement or continuations thereof (the "Annual Meeting"),
hereby revoking any proxies previously given, to vote all shares of Common Stock
of Commercial Metals held or owned by the undersigned as directed below, and in
their discretion upon such other matters as may come before the meeting
(provided, however, that the persons named above will be permitted to use such
discretionary authority only for matters which they do not know, a reasonable
time before the solicitation, are to be presented at the meeting).
IF NO DIRECTION IS MADE, THE SHARES OF COMMON STOCK WILL BE VOTED (I) FOR JAMES
UNGER, STEVE MONGILLO AND GEORGE HEBARD FOR DIRECTORS; (II) FOR THE POISON PILL
REDEMPTION RESOLUTION, (III) FOR THE POISON PILL BYLAW AMENDMENT, (IV) FOR THE
REPEAL OF NEW BYLAWS DESIGNED TO FRUSTRATE THE PROXY FIGHT, (V) [ ] THE
RATIFICATION OF THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM, (VI) [ ] THE ADVISORY VOTE ON EXECUTIVE COMPENSATION, (VII) EVERY [ ]
YEAR FOR AN ADVISORY VOTE ON THE FREQUENCY OF FUTURE ADVISORY VOTES ON EXECUTIVE
COMPENSATION, AND (VIII) IN THE PROXY HOLDERS' DISCRETION AS TO OTHER MATTERS
THAT MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
THE PROXY STATEMENT, AS WELL AS OTHER PROXY MATERIALS DISTRIBUTED BY THE
PARTICIPANTS, ARE AVAILABLE FREE OF CHARGE ONLINE AT WWW.DFKING.COM/CMC.
SIGN, DATE AND MAIL YOUR PROXY TODAY
UNLESS YOU HAVE VOTED BY TELEPHONE OR BY INTERNET,
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
IF YOU HAVE NOT VOTED BY INTERNET OR TELEPHONE, PLEASE DATE, MARK, SIGN AND
RETURN THIS PROXY PROMPTLY. YOUR VOTE, WHETHER BY INTERNET, TELEPHONE OR MAIL,
MUST BE RECEIVED NO LATER THAN ____, CENTRAL STANDARD TIME, ON ______, 2012, TO
BE INCLUDED IN THE VOTING RESULTS.
[PRELIMINARY COPY OF PROXY CARD, SUBJECT TO COMPLETION]
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
THE PARTICIPANTS RECOMMEND A VOTE "FOR" THE ELECTION OF THE NOMINEES LISTED IN
PROPOSAL 1 BELOW.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) James Unger FOR ALL WITHHELD FROM FOR ALL
(02) Steve Mongillo NOMINEES ALL NOMINEES EXCEPT
(03) George Hebard
NOTE: IF YOU DO NOT WISH YOUR SHARES VOTED "FOR" A PARTICULAR NOMINEE, MARK THE
"FOR ALL EXCEPT" BOX AND WRITE THE NAME(S) OF THE NOMINEE(S) YOU DO NOT SUPPORT
ON THE LINE BELOW. YOUR SHARES WILL BE THEN VOTED FOR THE REMAINING NOMINEE(S).
________________________________________________________________________________
THE PARTICIPANTS RECOMMEND A VOTE "FOR" IN PROPOSAL 2 BELOW; "FOR" IN PROPOSAL 3
BELOW; "FOR" IN PROPOSAL 4 BELOW; "___" IN PROPOSAL 5 BELOW; "___" IN PROPOSAL 6
BELOW; AND "___" IN PROPOSAL 7 BELOW.
2. Adoption of poison pill redemption [ ] [ ] [ ]
resolution. FOR AGAINST ABSTAIN
3. Adoption of poison pill bylaw amendment. [ ] [ ] [ ]
FOR AGAINST ABSTAIN
4. Repeal of new bylaws designed to [ ] [ ] [ ]
frustrate the proxy fight. FOR AGAINST ABSTAIN
5. Ratification of the appointment of [ ] [ ] [ ]
independent registered public FOR AGAINST ABSTAIN
accounting firm.
6. Advisory vote on executive [ ] [ ] [ ]
compensation. FOR AGAINST ABSTAIN
7. Advisory vote on frequency of future [ ] [ ] [ ] [ ]
advisory votes on executive 1 year 2 years 3 years ABSTAIN
compensation.
Please be sure to sign and date this Proxy.
------------------------------------- --------------------------
SIGNATURE(S) OF SHAREHOLDER(S) DATE
------------------------------------- --------------------------
SIGNATURE(S) IF HELD JOINTLY DATE
----------------------------------------------------------------------
TITLE, IF ANY
Please sign exactly as your name(s) appear on this proxy. When Shares are
held jointly, each holder should sign. When signing as Executor,
administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a
partnership, please sign in partnership name by authorized person.