Exhibit 1.1
EXECUTION
COPY
Vulcan Materials Company
6.30% Notes due 2013
7.00% Notes due 2018
Underwriting Agreement
June 17, 2008
Banc of America Securities LLC,
Goldman, Sachs & Co.,
J.P. Morgan Securities Inc.,
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Vulcan Materials Company, a New Jersey corporation (the Company), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the Underwriters) an aggregate of (i) $250,000,000 principal amount of 6.30% Notes due
2013 and (ii) $400,000,000 principal amount of 7.00% Notes due 2018 (together, the Securities).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined under Rule 405 under the Securities
Act of 1933, as amended (the Act), on Form S-3 (File No. 333-147796) in respect of the Securities
has been filed by the Company with the Securities and Exchange Commission (the Commission) not
earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof
has been issued under the Act and no proceeding for that purpose has been initiated, or to the
knowledge of the Company has been threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus
filed as part of such registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is hereinafter called the Basic
Prospectus; any preliminary prospectus (including any preliminary prospectus supplement) relating
to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter
called a Preliminary Prospectus; the various parts of such registration statement, including all
exhibits thereto and any prospectus supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be part of such registration
statement, each as amended at the time such part of the registration statement became effective,
are hereinafter collectively called the Registration Statement; the Basic Prospectus, as amended
and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the Pricing Prospectus; the form of the final prospectus relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the Prospectus; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 11 and Item
12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of 1934, as amended (the Exchange
Act), and incorporated by reference into such Basic Prospectus, Preliminary Prospectus or
Prospectus, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or
the Prospectus, as the case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any issuer free writing prospectus
as defined in Rule 433 under the Act relating to the Securities is hereinafter called an Issuer
Free Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the Trust
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Indenture Act of 1939, as amended (the Trust Indenture Act) and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 3:15 p.m. (Eastern time) on
the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheets
prepared and filed pursuant to Section 5(a) hereof and the Issuer Free Writing Prospectuses, if
any, identified on Schedule II(a) hereto, taken together (collectively, the Pricing Disclosure
Package) as of the Applicable Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus, if any, listed on Schedule II(b) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in the Pricing
Prospectus or an Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representatives expressly for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the
applicable rules and regulations of the Commission thereunder, and when read together with the
other information in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
at the respective times the Registration Statement and any amendments thereto became effective, as
of the Applicable Time, at the date of the Prospectus and at the Time of Delivery (as defined
below), did not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; any further documents so
filed and incorporated by reference in the
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Prospectus or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein; and no such
documents were filed with the Commission since the Commissions close of business on the business
day immediately prior to the date of this Agreement and prior to the execution of this Agreement,
except as set forth on Schedule II(c) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, as of the applicable
effective date as to the Registration Statement and as of the applicable filing date and as of the
Time of Delivery as to the Prospectus, in all material respects to the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein or to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture;
(f) Neither the Company nor any of its subsidiaries has sustained since the respective dates
of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus and the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing Prospectus
and the Prospectus; and, since the respective dates as of which information is given in the
Registration Statement, the Pricing Prospectus and the Prospectus, there has not been any material
change in the capital stock or long term debt (which is debt with a maturity of a year or more) of
the
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Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X)
(Significant Subsidiaries) or any material adverse change in or affecting the business,
management, financial position, shareholders equity, results of operations, or to the knowledge of
the Company in the business prospects, of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus;
(g) (i) The Company and its Significant Subsidiaries have good and valid title to all of the
properties and assets reflected in the financial statements included or incorporated by reference
in the Pricing Prospectus and Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or which are not
material in nature or amount; and (ii) the Company and its Significant Subsidiaries use or occupy
their leased properties under valid and binding leases; except in (i) and (ii) as would not
individually or in the aggregate have a material adverse effect on the business, consolidated
financial position, shareholders equity, results of operations, or to the knowledge of the Company
in the business prospects, of the Company and any of its subsidiaries taken as a whole (a Material
Adverse Effect);
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and authority to own its
properties and conduct its business as described in the Pricing Prospectus and the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would not result in a Material Adverse
Effect; and each Significant Subsidiary of the Company has been duly organized and is validly
existing as a corporation or other organization in good standing under the laws of the jurisdiction
in which it is chartered or organized;
(i) The Company has as of March 31, 2008, an authorized capitalization as set forth in the
Pricing Prospectus and the Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and non-assessable;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement and the Indenture, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the Senior Debt Indenture dated as of December 11, 2007, between the Company and
Wilmington Trust Company (the Trustee), which is substantially in the form filed as an exhibit to
the Registration Statement, as supplemented by the Second Supplemental Indenture, to be dated June
20, 2008, between the Company and
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the Trustee (together, the Indenture), under which they are to be issued; the Indenture has
been duly authorized by the Company and duly qualified under the Trust Indenture Act and,
constitutes a valid and legally binding instrument, enforceable in accordance with its terms,
except as (i) the enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors rights generally and (ii) rights of
acceleration and the availability of other remedies may be limited by equitable principles of
general applicability;
(k) The issue and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, violations or defaults that would not individually or in the
aggregate have a Material Adverse Effect, nor will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties, except for
such violations that would not individually or in the aggregate have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company; and no material consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture except such as have been or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(l) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (or other organizational documents) or in default in the
performance or observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for defaults that would not have
a Material Adverse Effect;
(m) The Securities and the Indenture will conform in all material aspects to the descriptions
thereof in the Pricing Prospectus and the Prospectus;
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(n) Other than as set forth in the Pricing Prospectus and the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the Companys knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an investment company, as such term is
defined in the Investment Company Act of 1940, as amended (the Investment Company Act);
(p) Other than as set forth in the Pricing Prospectus and the Prospectus, the property, assets
and operations of the Company and its Significant Subsidiaries comply in all material respects with
all applicable federal, state and local law, common law, doctrine, rule, order, decree, judgment,
injunction, license, permit and regulation relating to environmental matters (the Environmental
Laws), except to the extent that failure to comply with such Environmental Laws would not have a
Material Adverse Effect; to the knowledge of the Company, none of the property, assets or
operations of the Company and its Significant Subsidiaries is the subject of any federal, state or
local investigation evaluating whether any remedial action is needed to respond to a release into
the environment of any substance regulated by, or form the basis of liability under, any
Environmental Laws (a Hazardous Material), or is in contravention of any Environmental Law that
would have a Material Adverse Effect; neither the Company nor any subsidiary has received any
notice or claim, nor are there pending or, to the Companys knowledge, threatened lawsuits against
them with respect to violations of an Environmental Law or in connection with the release of any
Hazardous Material into the environment that would reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any subsidiary has any contingent liability in
connection with any release of Hazardous Material into the environment, that is material with
respect to the Company and its subsidiaries taken as a whole;
(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the
Company was a well-known seasoned issuer as defined in Rule 405 under the Act; and (B) at the
earliest time after the
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filing of the Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an ineligible issuer as defined in Rule 405 under the Act;
(r) Deloitte & Touche LLP, who have expressed its opinion with respect to certain financial
statements of the Company and the Companys internal control over financial reporting, all included
or incorporated by reference in the Registration Statement, Pricing Prospectus and Prospectus, was
and will be an independent registered public accounting firm with respect to the Company as of the
Applicable Time and the Time of Delivery; and KPMG LLP, who have expressed its opinion with respect
to certain financial statements of Florida Rock Industries, Inc. and its subsidiaries (Florida
Rock) included or incorporated by reference in the Registration Statement, Pricing Prospectus and
Prospectus, was an independent registered public accounting firm with respect to Florida Rock as of
November 16, 2007, as required by the Act and the applicable rules and regulations of the
Commission thereunder;
(s) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Companys principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Companys internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(t) Since the date of the latest audited financial statements of the Company included or
incorporated by reference in the Pricing Prospectus and the Prospectus, there has been no change in
the Companys internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Companys internal control over financial reporting;
and
(u) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, and each of the
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Underwriters agrees, severally and not jointly, to purchase from the Company (i) at a purchase
price of 99.199% of the aggregate principal amount thereof, plus accrued interest, if any, from
June 20, 2008 to the Time of Delivery hereunder, the aggregate principal amount of 6.30% Notes due
2013, set forth opposite the name of such Underwriter in Schedule I hereto, and (ii) at a purchase
price of 99.245% of the principal amount thereof, plus accrued interest, if any, from June 20, 2008
to the Time of Delivery hereunder, the principal amount of 7.00% Notes due 2018, set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
one or more definitive global Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (DTC) or its designated custodian. The Company
will deliver the Securities to the Representatives, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the Representatives at least
twenty-four hours in advance, by causing DTC to credit the Securities to the respective accounts of
the Representatives at DTC. The Company will cause the certificates representing the Securities to
be made available to the Representatives for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian (the Designated
Office). The time and date of such delivery and payment shall be 9:30 a.m., New York City time,
on June 20, 2008 or such other time and date as the Representatives and the Company may agree upon
in writing. Such time and date are herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(l) hereof, will be
delivered at the offices of Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004
(the Closing Location), and the Securities will be delivered at the Designated Office, all at the
Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, New York Business Day shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commissions close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you in your reasonable judgment promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you with copies thereof; to prepare final term sheets,
containing a description of the Securities, substantially in the forms attached as Schedules III-1
and III-2 hereto, and to file such term sheets pursuant to Rule 433(d) under the Act within the
time required by such Rule; to file promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to file within the required time periods
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required under the Act in connection with the
offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance
of a notice of objection, promptly to take such steps including, without limitation, amending the
Registration Statement or filing a new registration statement, at its own expense, as may be
necessary to permit offers and sales of the Securities by the Underwriters (references herein to
the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus
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pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the
Act; and to make no further amendment or supplement to such form of prospectus which shall be
disapproved by you promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably require to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
reasonably require and to maintain such qualification so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Securities up to one year from the date hereof, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to qualify as a foreign corporation or as a broker or
dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(d) To furnish the Underwriters with (i) electronic copies of the Prospectus prior to 3:00
p.m., New York City time, on the New York Business Day next succeeding the date of this Agreement
and from time to time, and (ii) written copies of the Prospectus prior to 10:00 a.m., New York
City time, on the second New York Business Day next succeeding the date of this Agreement and from
time to time, in each case in such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the
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expense of such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder of, any securities of the Company that: (i) mature more than one year
after such Time of Delivery, (ii) bear the same rate as the securities and (iii) are otherwise
substantially similar to the Securities;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption
Use of Proceeds.
6.
(a) (i) The Company represents and agrees that, other than the final term sheets prepared and
filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a free writing
prospectus as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, other than the final term sheets prepared and filed pursuant to Section 5(a)
hereof, it has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or any other free writing prospectus that would be
required to be filed with the Commission; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and the Representatives (including the final term
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sheets prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) or Schedule
II(b) hereto, as applicable;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel
and accountants in connection with the registration and sale of the Securities under the Act and
all other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, the Indenture, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all reasonable expenses in
connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection with the Blue Sky
survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters
in connection with, any required review by the Financial Industry Regulatory Authority of the terms
of the sale of the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
-13-
expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters to purchase and pay for the Securities hereunder shall
be subject, in their discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheets contemplated by
Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters, and may rely upon the opinion of New
Jersey counsel with respect to matters of New Jersey law;
(c) William F. Denson, III, Esq., Senior Vice President and General Counsel, for the Company
shall have furnished to you his written opinion dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set
-14-
forth in Annex II(A) hereto, and he may rely upon the opinion of New Jersey counsel with
respect to matters of New Jersey law:
(d) Lowenstein Sandler PC, special New Jersey counsel for the Company, shall have furnished to
you their written opinion, dated the Time of Delivery, in form and substance satisfactory to you,
to the effect set forth in Annex II(B) hereto;
(e) Wachtell, Lipton, Rosen & Katz, counsel for the Company, shall have furnished to you their
written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Annex II(C) hereto, and such counsel may rely upon the opinion of New Jersey
counsel with respect to matters of New Jersey law;
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, each of
Deloitte & Touche LLP and KPMG LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this
Agreement are attached as Annex I(A) hereto and forms of letters to be delivered on the effective
date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery
are attached as Annex I(B) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements of the Company included or incorporated by reference in the
Pricing Prospectus and the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given
in the Pricing Prospectus and the Prospectus there shall not have been any material change in the
capital stock or long term debt (which is debt with a maturity of a year or more) of the Company or
any of its subsidiaries or any material change in or affecting the business, business prospects,
management, or consolidated financial position, shareholders equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is
in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
-15-
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Companys debt securities by any nationally recognized statistical rating
organization, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Companys debt securities;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Companys securities on the
New York Stock Exchange; or (iii) a general moratorium on commercial banking activities declared by
either Federal or New York, Alabama or New Jersey State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus;
(j) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant
to Rule 433(d) under the
-16-
Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim within
30 days after receipt of invoicing for such expense; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim within 30 days after receipt of invoicing for such expenses.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection (except to the extent that the indemnifying party is materially prejudiced by reason of
such failure). In case any such action
-17-
shall be brought against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), provided,
however, such indemnified party shall have the right to employ its own counsel in any such action
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party, unless: (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between
such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it
being understood, however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by the Representatives and that all
such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b)
-18-
above in respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnifying party was materially prejudiced as a result of the failure by
the indemnified party to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The aggregate amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
-19-
Underwriters obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty six
hours after such default by any Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty six hours within which to procure
another party or other parties satisfactory to you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in your opinion may thereby be made necessary.
The term Underwriter as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does not exceed one
eleventh of the aggregate principal amount of all the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
-20-
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of
a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery
of the Securities, but the Company shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of each of: (a) Banc of America Securities LLC, 40 West 57th Street, New
York, New York, 10019, Attention: High Grade Transaction Management/Legal, (b) Goldman, Sachs &
Co., 85 Broad Street, 23rd Floor, New York, New York 10004, Attention: Registration Department, (c)
J.P. Morgan Securities Inc., 270 Park Avenue, New
-21-
York, New York 10017, Attn: Investment Grade Syndicate Desk, and (d) Wachovia Capital Markets,
LLC, 301 S. College Street, Charlotte, North Carolina 28288, Attn: Transaction Management Group;
and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its
Underwriters Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term business day
shall mean any day when the Commissions office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arms-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent, fiduciary or financial advisor of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or
-22-
any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18.
This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters, imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, tax structure is limited to
any facts that may be relevant to that treatment.
-23-
If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
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Very truly yours,
VULCAN MATERIALS COMPANY
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By:
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/s/ Daniel
F. Sansone
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Name: Daniel F. Sansone
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Title: Senior Vice President
and
Chief Financial Officer
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Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC,
GOLDMAN, SACHS & CO.,
J.P. MORGAN SECURITIES INC.,
WACHOVIA CAPITAL MARKETS, LLC
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By:
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/s/ Lily Chang
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(BANC OF AMERICA SECURITIES LLC)
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Name: Lily Chang
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Title: Principal
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By:
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/s/ Goldman, Sachs & Co.
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(GOLDMAN, SACHS & CO.)
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By:
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/s/ Stephen L. Sheiner
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(J.P. MORGAN SECURITIES INC.)
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Name: Stephen L. Sheiner
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Title: Vice President
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By:
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/s/ Carolyn Coan
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(WACHOVIA CAPITAL MARKETS, LLC)
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Name: Carolyn Coan
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Title: Vice President
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SCHEDULE I
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Principal Amount of Securities to be Purchased
|
Underwriter
|
|
6.30% Notes due 2013
|
|
7.00% Notes due 2018
|
|
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Banc of America Securities LLC
|
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$
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46,250,000
|
|
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$
|
74,000,000
|
|
Goldman, Sachs & Co.
|
|
|
46,250,000
|
|
|
|
74,000,000
|
|
J.P. Morgan Securities Inc.
|
|
|
46,250,000
|
|
|
|
74,000,000
|
|
Wachovia Capital Markets,
LLC
|
|
|
46,250,000
|
|
|
|
74,000,000
|
|
Morgan Keegan & Company,
Inc.
|
|
|
19,587,500
|
|
|
|
31,340,000
|
|
UBS Securities LLC
|
|
|
19,587,500
|
|
|
|
31,340,000
|
|
Citigroup Global Markets Inc
.
|
|
|
8,750,000
|
|
|
|
14,000,000
|
|
Mizuho Securities USA Inc.
|
|
|
8,750,000
|
|
|
|
14,000,000
|
|
Fifth Third Securities, Inc.
|
|
|
4,162,500
|
|
|
|
6,660,000
|
|
The Williams Capital Group,
L.P.
|
|
|
4,162,500
|
|
|
|
6,660,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
250,000,000
|
|
|
|
400,000,000
|
|
|
|
|
-1-
SCHEDULE II
(a) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
None.
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None.
(c) Additional Documents Incorporated by Reference:
None.
Schedule III-1
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
June 17, 2008
Vulcan Materials Company
6.300% Notes due June 15, 2013
|
|
|
Issuer:
|
|
Vulcan Materials Company
|
Note Type:
|
|
Senior Unsecured Notes
|
Ratings:
|
|
A3 / A- (Negative Outlook/Stable)
|
Type of Offering:
|
|
SEC Registered
|
Final Terms
|
|
|
Principal Amount:
|
|
$250,000,000
|
Benchmark:
|
|
3.500% due May 31, 2013
|
Benchmark Yield:
|
|
3.648%
|
Re-offer Spread:
|
|
+270bps
|
Re-offer Yield:
|
|
6.348%
|
Coupon:
|
|
6.300%
|
Price to Public:
|
|
99.799%
|
Coupon Dates:
|
|
June 15 and December 15
|
First Coupon Date:
|
|
December 15, 2008
|
Trade Date:
|
|
June 17, 2008
|
Settlement Date:
|
|
June 20, 2008 (T+3)
|
Maturity Date:
|
|
June 15, 2013
|
Make Whole Call:
|
|
At any time at a discount rate of Treasury plus 45 bps
|
|
|
|
CUSIP:
|
|
929160AJ8
|
ISIN:
|
|
US929160AJ88
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
UBS Securities LLC
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov
.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC toll-free at
1-800-294-1322 or Goldman, Sachs & Co. toll-free at 1-866-471-2526.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-2-
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
June 17, 2008
Vulcan Materials Company
7.000% Notes due June 15, 2018
|
|
|
|
Issuer:
|
|
|
Vulcan Materials Company
|
Note Type:
|
|
|
Senior Unsecured Notes
|
Ratings:
|
|
|
A3 / A- (Negative Outlook/Stable)
|
Type of Offering:
|
|
|
SEC Registered
|
Final Terms
|
|
|
|
Principal Amount:
|
|
|
$400,000,000
|
Benchmark:
|
|
|
3.875% due May 15, 2018
|
Benchmark Yield:
|
|
|
4.215%
|
Re-offer Spread:
|
|
|
+280bps
|
Re-offer Yield:
|
|
|
7.015%
|
Coupon:
|
|
|
7.000%
|
Price to Public:
|
|
|
99.895%
|
Coupon Dates:
|
|
|
June 15 and December 15
|
First Coupon Date:
|
|
|
December 15, 2008
|
Trade Date:
|
|
|
June 17, 2008
|
Settlement Date:
|
|
|
June 20, 2008 (T+3)
|
Maturity Date:
|
|
|
June 15, 2018
|
Make Whole Call:
|
|
|
At any time at a discount rate of Treasury plus 45 bps
|
CUSIP:
|
|
|
929160AK5
|
-3-
|
|
|
ISIN:
|
|
US929160AK51
|
Bookrunners:
|
|
Banc of America Securities LLC
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
|
Co-Managers:
|
|
Morgan Keegan & Company, Inc.
UBS Securities LLC
Citigroup Global Markets Inc.
Mizuho Securities USA Inc.
Fifth Third Securities, Inc.
The Williams Capital Group, L.P.
|
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at
www.sec.gov
.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC toll-free at
1-800-294-1322 or Goldman, Sachs & Co. toll-free at 1-866-471-2526.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-4-
Exhibit 4.1
VULCAN MATERIALS COMPANY
and
WILMINGTON TRUST COMPANY,
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 20, 2008
to
SENIOR DEBT INDENTURE
Dated as of December 11, 2007
6.30% Notes due 2013
7.00% Notes due 2018
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE ONE
|
|
|
DEFINITIONS
|
|
|
|
|
|
|
|
Section 101.
|
|
Definition of Terms
|
|
2
|
|
|
|
|
|
ARTICLE TWO
|
|
|
GENERAL TERMS AND CONDITIONS OF THE 2013 NOTES
|
|
|
|
|
|
|
|
Section 201.
|
|
Designation and Principal Amount
|
|
3
|
Section 202.
|
|
Maturity
|
|
3
|
Section 203.
|
|
Further Issues
|
|
3
|
Section 204.
|
|
Form and Payment
|
|
4
|
Section 205.
|
|
Global Securities
|
|
4
|
Section 206.
|
|
Definitive Form
|
|
4
|
Section 207.
|
|
Interest
|
|
4
|
Section 208.
|
|
Authorized Denominations
|
|
4
|
Section 209.
|
|
Redemption
|
|
4
|
Section 210.
|
|
Change of Control
|
|
5
|
Section 211.
|
|
Appointment of Agents
|
|
7
|
|
|
|
|
|
ARTICLE THREE
|
|
|
GENERAL TERMS AND CONDITIONS OF THE 2018 NOTES
|
|
|
|
|
|
|
|
Section 301.
|
|
Designation and Principal Amount
|
|
7
|
Section 302.
|
|
Maturity
|
|
7
|
Section 303.
|
|
Further Issues
|
|
7
|
Section 304.
|
|
Form and Payment
|
|
7
|
Section 305.
|
|
Global Securities
|
|
7
|
Section 306.
|
|
Definitive Form
|
|
8
|
Section 307.
|
|
Interest
|
|
8
|
Section 308.
|
|
Authorized Denominations
|
|
8
|
Section 309.
|
|
Redemption
|
|
8
|
Section 310.
|
|
Change of Control
|
|
8
|
Section 311.
|
|
Appointment of Agents
|
|
10
|
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE FOUR
|
|
|
FORMS OF NOTES
|
|
|
|
|
|
|
|
Section 401.
|
|
Form of 2013 Notes
|
|
11
|
Section 402.
|
|
Form of 2018 Notes
|
|
11
|
|
|
|
|
|
ARTICLE FIVE
|
|
|
ORIGINAL ISSUE OF NOTES
|
|
|
|
|
|
|
|
Section 501.
|
|
Original Issue of 2013 Notes
|
|
11
|
Section 502.
|
|
Original Issue of 2018 Notes
|
|
11
|
|
|
|
|
|
ARTICLE SIX
|
|
|
MISCELLANEOUS
|
|
|
|
|
|
|
|
Section 601.
|
|
Ratification of Indenture
|
|
11
|
Section 602.
|
|
Trustee Not Responsible for Recitals
|
|
12
|
Section 603.
|
|
Governing Law
|
|
12
|
Section 604.
|
|
Separability
|
|
12
|
Section 605.
|
|
Counterparts
|
|
12
|
|
|
|
|
|
EXHIBIT A
|
|
Form of 2013 Notes
|
|
A-1
|
|
|
|
|
|
EXHIBIT B
|
|
Form of 2018 Notes
|
|
B-1
|
SECOND SUPPLEMENTAL INDENTURE, dated as of June 20, 2008 (this Supplemental Indenture),
between Vulcan Materials Company, a corporation duly organized and existing under the laws of the
State of New Jersey, having its principal office at 1200 Urban Center Drive, Birmingham, Alabama
35242 (the Company), and Wilmington Trust Company, a corporation duly organized and existing
under the laws of the State of Delaware, as trustee (the Trustee).
WHEREAS, the Company executed and delivered the senior debt indenture, dated as of
December 11, 2007, to the Trustee (as heretofore supplemented, the Indenture), to provide for the
issuance of the Companys notes or other evidences of indebtedness (the Securities), to be issued
in one or more series;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the
establishment of two new series of its notes under the Indenture to be known as its 6.30% Notes
due 2013 (the 2013 Notes) and 7.00% Notes due 2018 (the 2018 Notes), the form and substance
of each such series and the terms, provisions and conditions thereof to be set forth as provided in
the Indenture and this Supplemental Indenture;
WHEREAS, the Board of Directors of the Company and the Pricing Committee thereof, pursuant to
resolutions duly adopted on November 12, 2007 and June 17, 2008, respectively, has duly authorized
the issuance of the 2013 Notes and the 2018 Notes, and has authorized the proper officers of the
Company to execute any and all appropriate documents necessary or appropriate to effect each such
issuance;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of
Article Two and Section 901(7) of the Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental
Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Company, in accordance with its terms, and to make each of the 2013 Notes and the 2018 Notes, each
when executed by the Company and authenticated and delivered by the Trustee or an authentication
agent, the valid obligations of the Company, have been performed, and the execution and delivery of
this Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the premises and the purchase and acceptance of each of the
2013 Notes and the 2018 Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the forms and terms of each of the 2013 Notes and the 2018 Notes, the
Company covenants and agrees, with the Trustee, as follows:
ARTICLE ONE
DEFINITIONS
Section 101.
Definition of Terms
.
Unless the context otherwise requires:
(a) each term defined in the Indenture has the same meaning when used in this Supplemental
Indenture;
(b) the singular includes the plural and vice versa; and
(c) headings are for convenience of reference only and do not affect interpretation.
Change of Control means the occurrence of any of the following: (1) the consummation of any
transaction (including, without limitation, any merger or consolidation) the result of which is
that any person (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the
Company or one of its subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the
Company or other Voting Stock into which the Voting Stock of the Company is reclassified,
consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the
direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of all or substantially all of the
assets of the Company and the assets of its subsidiaries, taken as a whole, to one or more Persons
(other than the Company or one of its subsidiaries); or (3) the first day on which a majority of
the members of the Board of Directors of the Company is composed of members who are not Continuing
Directors. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of
Control if (1) the Company becomes a direct or indirect wholly-owned subsidiary of a holding
company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same as the holders of the Voting
Stock of the Company immediately prior to that transaction or (B) immediately following that
transaction no person (other than a holding company satisfying the requirements of this sentence)
is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such
holding company.
Continuing Directors means, as of any date of determination, any member of the Companys
Board of Directors who (1) was a member of such Board of Directors on the date of this Supplemental
Indenture or (2) was nominated for election, elected or appointed to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of Directors
at the time of such nomination, election or appointment (either by a specific vote or by approval
of the Companys proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
-2-
Investment Grade means a rating of Baa3 or better by Moodys (or its equivalent under any
successor rating categories of Moodys); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and the equivalent investment grade credit rating from any
additional Rating Agency or Rating Agencies selected by the Company.
Moodys means Moodys Investors Service, Inc.
Rating Agency means in respect of any series of Securities (a) each of Moodys and S&P; and
(b) if either of Moodys or S&P ceases to rate the Securities of such series or fails to make a
rating of the Securities of such series publicly available for reasons outside of the Companys
control, a nationally recognized statistical rating organization within the meaning of Section
3(a)(62) under the Exchange Act, selected by the Company and certified by the Companys Board of
Directors as a replacement agency for the agency that ceased such rating or failed to make it
publicly available.
S&P means Standard & Poors Ratings Services, a division of McGraw-Hill, Inc.
Voting Stock of any specified person (as that term is used in Section 13(d)(3) of the
Exchange Act) as of any date means the capital stock of such person that is at the time entitled to
vote generally in the election of the board of directors of such person.
ARTICLE TWO
GENERAL TERMS AND CONDITIONS OF THE 2013 NOTES
Section 201.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the 6.30% Notes due 2013, which is not limited in aggregate principal amount. The
aggregate principal amount of the 2013 Notes to be issued shall be as set forth in any Company
Order for the authentication and delivery of the 2013 Notes, pursuant to Section 303 of the
Indenture.
Section 202.
Maturity
.
The Stated Maturity of principal for the 2013 Notes will be June 15, 2013.
Section 203.
Further Issues.
The Company may from time to time, without the consent of the Holders of the 2013 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2013 Notes. Any such additional notes, together with
the 2013 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
-3-
Section 204.
Form and Payment
.
Principal of, premium, if any, and interest on the 2013 Notes shall be payable in U.S.
dollars.
Section 205.
Global Securities
.
Upon the original issuance, the 2013 Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of the Depository Trust Company
(DTC). The Company will issue the 2013 Notes in denominations of $2,000 and integral multiples
of $1,000 in excess thereof and will deposit the Global Securities with DTC or its custodian and
register the Global Securities in the name of Cede & Co.
Section 206.
Definitive Form
.
If (a) the Depositary is at any time unwilling or unable to continue as depositary or ceases
to be a registered clearing agency and, in either case, a successor depositary is not appointed by
the Company within 90 days of notice thereof, (b) an Event of Default has occurred with regard to
the 2013 Notes and has not been cured or waived, or (c) the Company at any time and in its sole
discretion determines not to have the 2013 Notes represented by Global Securities, the Company may
issue the 2013 Notes in definitive form in exchange for such Global Securities. In any such
instance, an owner of a beneficial interest in 2013 Notes will be entitled to physical delivery in
definitive form of 2013 Notes, equal in principal amount to such beneficial interest and to have
2013 Notes registered in its name as shall be established in a Company Order.
Section 207.
Interest
.
The 2013 Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from June 20, 2008 at the rate of 6.30% per annum, payable semiannually;
interest payable on each Interest Payment Date will include interest accrued from June 20, 2008, or
from the most recent Interest Payment Date to which interest has been paid or duly provided for;
the Interest Payment Dates on which such interest shall be payable are June 15 and December 15,
commencing on December 15, 2008; and the record date for the interest payable on any Interest
Payment Date is the close of business on June 1 or December 1 (whether or not such day is a
Business Day), as the case may be, next preceding the relevant Interest Payment Date.
Section 208.
Authorized Denominations
.
The 2013 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Section 209.
Redemption
.
The 2013 Notes are subject to redemption at the option of the Company as set forth in the form
of 2013 Note attached hereto as Exhibit A.
-4-
Section 210.
Change of Control
.
(a) Upon the occurrence of a 2013 Change of Control Repurchase Event (as defined below),
unless the Company has exercised its right to redeem all 2013 Notes in accordance with the
redemption terms as set forth in the 2013 Notes or has defeased the 2013 Notes as set forth in the 2013 Notes, the Company shall make an irrevocable offer to
each Holder of 2013 Notes to repurchase all or any part (equal to or in excess of $2,000 and in
integral multiples of $1,000) of such Holders 2013 Notes at a repurchase price in cash equal to
101% of the aggregate principal amount of 2013 Notes repurchased plus accrued and unpaid interest,
if any, on the 2013 Notes repurchased to, but not including, the date of repurchase.
(b) Within 30 days following any 2013 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2013
Notes, with a copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2013
Change of Control Repurchase Event;
(ii) offering to repurchase all 2013 Notes tendered;
(iii) setting forth the payment date (the 2013 Change of Control Payment Date) for the
repurchase of the 2013 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2013 Change of Control Repurchase Event occurring on or
prior to the 2013 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2013 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2013 Notes.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the 2013 Notes as a result of a 2013 Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the 2013 Change of Control Repurchase Event provisions of the 2013 Notes, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the 2013 Change of Control Repurchase Event provisions of the 2013
Notes by virtue of such conflict.
-5-
(d) On the repurchase date following a 2013 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2013 Notes or portions thereof properly tendered pursuant to such
offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect
of all 2013 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2013 Notes properly accepted,
together with an Officers Certificate of the Company stating the aggregate principal amount of
2013 Notes or portions thereof being repurchased by the Company.
(e) Upon receipt of the required funds, the Paying Agent will promptly distribute to each
Holder of 2013 Notes properly tendered the purchase price for such 2013 Notes deposited with the
Paying Agent, the Company will execute and the Authenticating Agent, upon the execution and
delivery by the Company of such 2013 Notes, will promptly authenticate and deliver (or cause to be
transferred by book-entry) to each Holder a new 2013 Note equal in principal amount to any
unpurchased portion of any 2013 Notes surrendered; provided that each new 2013 Note will be in a
principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2013 Notes upon a
2013 Change of Control Repurchase Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for an offer made by the Company and such
third party purchases all 2013 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2013 Notes if there has occurred and is continuing
on the 2013 Change of Control Payment Date an Event of Default in respect of any series of notes
under the Indenture, other than a default in the payment of all or any portion of the aggregate
purchase price in respect of all 2013 Notes or portions thereof properly tendered in connection
with a Change of Control Repurchase Event.
(g) Solely for purposes of this Section 210 in connection with the 2013 Notes, the following
terms shall have the following meanings:
2013 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2013 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
-6-
2013 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2013 Below Investment Grade Ratings Event.
Section 211.
Appointment of Agents
.
Citibank, N.A. will initially be the Security Registrar and Paying Agent for the 2013 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency & Trust, Vulcan Materials Company; or any other address that the Securities
Registrar and Paying Agent may designate with respect to itself from time to time by notice to the
Trustee, the Company and the Holders.
ARTICLE THREE
GENERAL TERMS AND CONDITIONS OF THE 2018 NOTES
Section 301.
Designation and Principal Amount
.
There is hereby authorized and established a series of Securities under the Indenture,
designated as the 7.00% Notes due 2018, which is not limited in aggregate principal amount. The
aggregate principal amount of the 2018 Notes to be issued shall be as set forth in any Company
Order for the authentication and delivery of the 2018 Notes, pursuant to Section 303 of the
Indenture.
Section 302.
Maturity
.
The Stated Maturity of principal for the 2018 Notes will be June 15, 2018.
Section 303. Further Issues.
The Company may from time to time, without the consent of the Holders of the 2018 Notes, issue
additional notes of that series. Any such additional notes will have the same ranking, interest
rate, maturity date and other terms as the 2018 Notes. Any such additional notes, together with
the 2018 Notes herein provided for, will constitute a single series of Securities under the
Indenture.
Section 304.
Form and Payment
.
Principal of, premium, if any, and interest on the 2018 Notes shall be payable in U.S.
dollars.
Section 305.
Global Securities
.
Upon the original issuance, the 2018 Notes will be represented by one or more Global
Securities registered in the name of Cede & Co., the nominee of DTC. The
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Company will issue the 2018 Notes in denominations of $2,000 and integral multiples of $1,000
in excess thereof and will deposit the Global Securities with DTC or its custodian and register the
Global Securities in the name of Cede & Co.
Section 306.
Definitive Form
.
If (a) the Depositary is at any time unwilling or unable to continue as depositary or ceases
to be a registered clearing agency and, in either case, a successor depositary is not appointed by
the Company within 90 days of notice thereof, (b) an Event of Default has occurred with regard to
the 2018 Notes and has not been cured or waived, or (c) the Company at any time and in its sole
discretion determines not to have the 2018 Notes represented by Global Securities, the Company may
issue the 2018 Notes in definitive form in exchange for such Global Securities. In any such
instance, an owner of a beneficial interest in 2018 Notes will be entitled to physical delivery in
definitive form of 2018 Notes, equal in principal amount to such beneficial interest and to have
2018 Notes registered in its name as shall be established in a Company Order.
Section 307.
Interest
.
The 2018 Notes will bear interest (computed on the basis of a 360-day year consisting of
twelve 30-day months) from June 20, 2008 at the rate of 7.00% per annum, payable semiannually;
interest payable on each Interest Payment Date will include interest accrued from June 20, 2008, or
from the most recent Interest Payment Date to which interest has been paid or duly provided for;
the Interest Payment Dates on which such interest shall be payable are June 15 and December 15,
commencing on December 15, 2008; and the record date for the interest payable on any Interest
Payment Date is the close of business on June 1 or December 1 (whether or not such day is a
Business Day), as the case may be, next preceding the relevant Interest Payment Date.
Section 308.
Authorized Denominations
.
The 2018 Notes shall be issuable in denominations of $2,000 and integral multiples of $1,000
in excess thereof.
Section 309.
Redemption
.
The 2018 Notes are subject to redemption at the option of the Company as set forth in the form
of 2018 Note attached hereto as Exhibit B.
Section 310.
Change of Control
.
(a) Upon the occurrence of a 2018 Change of Control Repurchase Event (as defined below),
unless the Company has exercised its right to redeem all 2018 Notes in accordance with the
redemption terms as set forth in the 2018 Notes or has defeased the 2018 Notes as set forth in the 2018 Notes, the Company shall make an irrevocable offer to
each Holder of 2018 Notes to repurchase all or any part (equal to or in excess of $2,000 and in
integral multiples of $1,000) of such Holders 2018 Notes at a repurchase price in cash equal to
101% of the aggregate principal amount
-8-
of 2018 Notes repurchased plus accrued and unpaid interest, if any, on the 2018 Notes
repurchased to, but not including, the date of repurchase.
(b) Within 30 days following any 2018 Change of Control Repurchase Event or, at the Companys
option, prior to any Change of Control, but in either case, after the public announcement of such
Change of Control, the Company shall mail, or shall cause to be mailed, to each Holder of 2018
Notes, with a copy to the Trustee, a notice:
(i) describing the transaction or transactions that constitute or may constitute the 2018
Change of Control Repurchase Event;
(ii) offering to repurchase all 2018 Notes tendered;
(iii) setting forth the payment date (the 2018 Change of Control Payment Date) for the
repurchase of the 2018 Notes, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed;
(iv) if mailed prior to the date of consummation of the Change of Control, stating that the
offer to repurchase is conditioned on a 2018 Change of Control Repurchase Event occurring on or
prior to the 2018 Change of Control Payment Date specified in such notice;
(v) disclosing that any 2018 Note not tendered for repurchase will continue to accrue
interest; and
(vi) specifying the procedures for tendering 2018 Notes.
(c) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and
any other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the 2018 Notes as a result of a 2018 Change of
Control Repurchase Event. To the extent that the provisions of any securities laws or regulations
conflict with the 2018 Change of Control Repurchase Event provisions of the 2018 Notes, the Company
will comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under the 2018 Change of Control Repurchase Event provisions of the 2018
Notes by virtue of such conflict.
(d) On the repurchase date following a 2018 Change of Control Repurchase Event, the Company
shall, to the extent lawful:
(i) accept for payment all 2018 Notes or portions thereof properly tendered pursuant to such
offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect
of all 2018 Notes or portions thereof properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the 2018 Notes properly accepted,
together with an Officers Certificate of the Company stating the
-9-
aggregate principal amount of 2018 Notes or portions thereof being repurchased by the Company.
(e) Upon receipt of the required funds, the Paying Agent will promptly distribute to each
Holder of 2018 Notes properly tendered the purchase price for such 2018 Notes deposited with the
Paying Agent by the Company, the Company will execute and the Authenticating Agent, upon the
execution and delivery by the Company of such 2018 Notes, will promptly authenticate and deliver
(or cause to be transferred by book-entry) to each Holder a new 2018 Note equal in principal amount
to any unpurchased portion of any 2018 Notes surrendered;
provided
that each new 2018 Note will be
in a principal amount of an integral multiple of $1,000.
(f) The Company shall not be required to make an offer to repurchase the 2018 Notes upon a
2018 Change of Control Repurchase Event if a third party makes such an offer in the manner, at the
times and otherwise in compliance with the requirements for an offer made by the Company and such
third party purchases all 2018 Notes properly tendered and not withdrawn under its offer. In
addition, the Company shall not repurchase any 2018 Notes if there has occurred and is continuing
on the 2018 Change of Control Payment Date an Event of Default in respect of any series of notes
under the Indenture, other than a default in the payment of all or any portion of the aggregate
purchase price in respect of all 2018 Notes or portions thereof properly tendered in connection
with a Change of Control Repurchase Event.
(g) Solely for purposes of this Section 310 in connection with the 2018 Notes, the following
terms shall have the following meanings:
2018 Below Investment Grade Ratings Event means that on any day commencing 60 days prior to
the first public announcement by the Company of any Change of Control (or pending Change of
Control) and ending 60 days following consummation of such Change of Control (which period will be
extended following consummation of a Change of Control for up to an additional 60 days for so long
as either of the Rating Agencies has publicly announced that it is considering a possible ratings
change), the 2018 Notes are downgraded to a rating that is below Investment Grade by each of the
Rating Agencies (regardless of whether the rating prior to such downgrade was Investment Grade or
below Investment Grade).
2018 Change of Control Repurchase Event means the occurrence of both a Change of Control and
a 2018 Below Investment Grade Ratings Event.
Section 311.
Appointment of Agents
.
Citibank, N.A. will initially be the Security Registrar and Paying Agent for the 2018 Notes
and will act as such only at its offices (a) for Securities transfer purposes and for purposes of
presentment and surrender of Securities for the final distributions thereon, at Citibank, N.A., 111
Wall Street, 15th Floor, New York, New York 10005, Attention: 15th Floor Window and (b) for all
other purposes, at Citibank, N.A., 388 Greenwich Street, 14th Floor, New York, New York, 10013,
Attention: Agency &
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Trust, Vulcan Materials Company; or any other address that the Securities Registrar and Paying
Agent may designate with respect to itself from time to time by notice to the Trustee, the Company
and the Holders.
ARTICLE FOUR
FORMS OF NOTES
Section 401.
Form of 2013 Notes
.
The 2013 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit A hereto.
Section 402.
Form of 2018 Notes
.
The 2018 Notes and the Trustees Certificate of Authentication to be endorsed thereon are to
be substantially in the form set forth in Exhibit B hereto.
ARTICLE FIVE
ORIGINAL ISSUE OF NOTES
Section 501.
Original Issue of 2013 Notes
.
The 2013 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2013 Notes as in such Company Order provided.
Section 502.
Original Issue of 2018 Notes
.
The 2018 Notes may, upon execution of this Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order,
authenticate and deliver such 2018 Notes as in such Company Order provided.
ARTICLE SIX
MISCELLANEOUS
Section 601.
Ratification of Indenture
.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and
confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided;
provided
that the provisions of this Supplemental
Indenture apply solely with respect to the 2013 Notes and the 2018 Notes.
-11-
Section 602.
Trustee Not Responsible for Recitals
.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no representation as to
the validity or sufficiency of this Supplemental Indenture.
Section 603.
Governing Law
.
This Supplemental Indenture, each 2013 Note and each 2018 Note shall be governed by and
construed in accordance with the laws of the State of New York.
Section 604.
Separability
.
In case any one or more of the provisions contained in this Supplemental Indenture, the 2013
Notes or the 2018 Notes shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provisions of
this Supplemental Indenture or of the notes, but this Supplemental Indenture and the notes shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 605.
Counterparts
.
This Supplemental Indenture may be executed in any number of counterparts each of which shall
be an original; but such counterparts shall together constitute but one and the same instrument.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the day and year first above written.
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VULCAN MATERIALS COMPANY
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By:
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/s/
Daniel F. Sansone
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Name:
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Daniel F. Sansone
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Title:
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Senior Vice President and
Chief Financial
Officer
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WILMINGTON TRUST COMPANY,
as Trustee
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By:
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/s/
Michael
G. Oller, Jr.
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Name:
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Michael G. Oller, Jr.
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Title:
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Assistant Vice President
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Acknowledged:
CITIBANK, N.A.,
as initial Authenticating Agent, Paying Agent, Security Registrar and Calculation Agent
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By:
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/s/ John J. Byrnes
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Name: John J. Byrnes
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Title: Vice President
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EXHIBIT A
FORM OF 2013 NOTES
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
6.30% NOTE DUE 2013
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No.
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$
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CUSIP No. 929160AJ8
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Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of
Dollars on June 15, 2013, and to pay interest
thereon from June 20, 2008 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on June 15 and December 15 in each year, commencing
December 15, 2008 at the rate of 6.30% per annum, until the principal hereof
A-1
is paid or made available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 6.30% per annum on any overdue principal and premium
and on any overdue installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be the June 1 or
December 1 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an
authentication agent on its behalf referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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Attest:
A-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
Authorized Officer
or
WILMINGTON TRUST COMPANY,
as Trustee
By: CITIBANK, N.A., as Authenticating Agent
By:
Authorized Officer
A-4
(FORM OF REVERSE OF 2013 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under a Senior Debt Indenture,
dated as of December 11, 2007 (herein called the Indenture), as supplemented by the Second
Supplemental Indenture, dated as of June 20, 2008, between the Company and Wilmington Trust
Company, as Trustee (herein called the Trustee, which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
The Securities are subject to redemption upon not less than 30 days nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the Company, at a redemption
price equal to the greater of (i) one hundred percent (100%) of the principal amount of the
Securities and (ii) the sum of the present values of the remaining scheduled payments of principal
and interest (exclusive of interest accrued to the Redemption Date) on the Securities discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below), plus 45 basis points, and plus accrued and unpaid
interest, if any, on the Securities being redeemed to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Independent Investment Banker (as defined below) will calculate the Redemption Price.
Treasury Rate means, with respect to the Securities on any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity with the remaining term of those Securities.
Comparable Treasury Price means, with respect to the Securities on any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) on the third Business Day preceding such Redemption Date,
as set forth in the daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated Composite 3:30 p.m. Quotations for U.S. Government
Securities or (ii) if such release (or any successor release) is not published or
A-5
does not contain such prices on such Business Day, (a) the average of the Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Trustee as directed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and the Securities on any Redemption Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
Reference Treasury Dealer means each of Banc of America Securities LLC, Goldman, Sachs &
Co., J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, and their respective
successors;
provided
,
however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall
replace that former dealer with another Primary Treasury Dealer.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive covenants and other covenants and the
related Events of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security. In addition, upon the Companys exercise of the
option provided in Section 1301 to obtain a covenant defeasance with respect to this Security, the
Company shall be released from its obligations under Section 210 of the Second Supplemental
Indenture (in addition to the Sections provided in Section 1303 of the Indenture) with respect to
this Security on and after the date the applicable conditions set forth in Section 1304 are
satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
A-6
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and multiples of $1,000 thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
A-7
EXHIBIT B
FORM OF 2018 NOTES
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (DTC) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
VULCAN MATERIALS COMPANY
7.00% NOTE DUE 2018
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No.
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$
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CUSIP No. 929160AK5
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Vulcan Materials Company, a corporation duly organized and existing under the laws of New
Jersey (herein called the Company, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of
Dollars on June 15, 2018, and to pay interest
thereon from June 20, 2008, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on June 15 and December 15 in each year, commencing
December 15, 2008 at the rate of 7.00% per annum, until the principal hereof
B-1
is paid or made available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 7.00% per annum on any overdue principal and premium
and on any overdue installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be the June 1 or
December 1 (whether or not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made
at the office or agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an
authentication agent on its behalf referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
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VULCAN MATERIALS COMPANY
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By:
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Attest:
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
Authorized Officer
or
WILMINGTON TRUST COMPANY,
as Trustee
By: CITIBANK, N.A., as Authenticating Agent
By:
Authorized Officer
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(FORM OF REVERSE OF 2018 NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under a Senior Debt Indenture,
dated as of December 11, 2007 (herein called the Indenture), as supplemented by the Second
Supplemental Indenture, dated as of June 20, 2008, between the Company and Wilmington Trust
Company, as Trustee (herein called the Trustee, which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof.
The Securities are subject to redemption upon not less than 30 days nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the Company, at a redemption
price equal to the greater of (i) one hundred percent (100%) of the principal amount of the
Securities and (ii) the sum of the present values of the remaining scheduled payments of principal
and interest (exclusive of interest accrued to the Redemption Date) on the Securities discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined below), plus 45 basis points, and plus accrued and unpaid
interest, if any, on the Securities being redeemed to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Independent Investment Banker (as defined below) will calculate the Redemption Price.
Treasury Rate means, with respect to the Securities on any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date.
Comparable Treasury Issue means the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity with the remaining term of those Securities.
Comparable Treasury Price means, with respect to the Securities on any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) on the third Business Day preceding such Redemption Date,
as set forth in the daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated Composite 3:30 p.m. Quotations for U.S. Government
Securities or (ii) if such release (or any successor release) is not published or
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does not contain such prices on such Business Day, (a) the average of the Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers appointed by the
Trustee as directed by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and the Securities on any Redemption Date, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such Redemption Date.
Reference Treasury Dealer means each of Banc of America Securities LLC, Goldman, Sachs &
Co., J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, and their respective
successors;
provided
,
however
, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a Primary Treasury Dealer), the Company shall
replace that former dealer with another Primary Treasury Dealer.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the entire indebtedness of
the Company on this Security and (ii) certain restrictive covenants and other covenants and the
related Events of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Security. In addition, upon the Companys exercise of the
option provided in Section 1301 to obtain a covenant defeasance with respect to this Security, the
Company shall be released from its obligations under Section 310 of the Second Supplemental
Indenture (in addition to the Sections provided in Section 1303 of the Indenture) with respect to
this Security on and after the date the applicable conditions set forth in Section 1304 are
satisfied.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past
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defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this
Security.
Except as set forth in Article Thirteen of the Indenture, no reference herein to the Indenture
and no provision of this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and multiples of $1,000 thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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