-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LYunFqW20PopP4eNosOnXwt57Aq46oHv+HD5tABEgTBqNXxLeypKHOiUGt/C2N7/ oNUjALZty94YfRvyRdHSiw== 0000931763-98-001159.txt : 19980504 0000931763-98-001159.hdr.sgml : 19980504 ACCESSION NUMBER: 0000931763-98-001159 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980501 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: VULCAN MATERIALS CO CENTRAL INDEX KEY: 0000103973 STANDARD INDUSTRIAL CLASSIFICATION: MINING, QUARRYING OF NONMETALLIC MINERALS (NO FUELS) [1400] IRS NUMBER: 630366371 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-50507 FILM NUMBER: 98607499 BUSINESS ADDRESS: STREET 1: ONE METROPLEX DR CITY: BIRMINGHAM STATE: AL ZIP: 35209 BUSINESS PHONE: 2058773000 MAIL ADDRESS: STREET 1: PO BOX 530187 CITY: BIRMINGHAM STATE: AL ZIP: 35253-0187 S-3/A 1 AMENDMENT ONE TO FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1998 Registration No. 333-50507 ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- AMENDMENT NO. 1 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------------- VULCAN MATERIALS COMPANY (Exact name of registrant as specified in its charter) NEW JERSEY 63-0366371 (State or other jurisdiction (I.R.S. Employer Identification Number) of incorporation or organization) ONE METROPLEX DRIVE BIRMINGHAM, ALABAMA 35209 (205) 877-3000 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) MICHAEL R. MILLS, ESQ. VULCAN MATERIALS COMPANY ONE METROPLEX DRIVE BIRMINGHAM, ALABAMA 35209 (205) 877-3000 (Name, address, including zip code, and telephone number, including area code, of agent for service) THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO: ALEXANDER W. PATTERSON, ESQ. ALSTON & BIRD LLP ONE ATLANTIC CENTER 1201 WEST PEACHTREE STREET ATLANTA, GEORGIA 30309-3424 (404) 881-7000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [x] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [_] ___________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: [_] ___________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [_] ___________ CALCULATION OF REGISTRATION FEE
=========================================================================================================================== Title of Shares to be Amount Proposed Maximum Proposed Maximum Amount of Registered to be Registered Offering Price Per Aggregate Offering Registration Share(1) Price(1) Fee(1) - ------------------------------------------------------------------------------------------------------------------------- Common Stock, $1.00 par value per share 410,000 SHARES $ 112.34 $ 46,059,400 $ 13,588 =========================================================================================================================
(1) PURSUANT TO RULE 457(c), THE PROPOSED MAXIMUM OFFERING PRICE PER SHARE AND REGISTRATION FEE ARE BASED UPON THE AVERAGE OF THE HIGH AND LOW PRICES OF THE REGISTRANT'S COMMON STOCK ON APRIL 27, 1998 AS REPORTED ON THE NEW YORK STOCK EXCHANGE. A PORTION OF THE REGISTRATION FEE ($12,519) WAS PREVIOUSLY PAID ON APRIL 20, 1998. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. ______________________________________________________________________________ Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such State. SUBJECT TO COMPLETION - DATED MAY 1, 1998 410,000 SHARES Vulcan Materials Company Common Stock _______________________ This Prospectus relates to 410,000 shares (the "Shares") of Common Stock, $1.00 par value per share (the "Common Stock"), of Vulcan Materials Company, a New Jersey corporation (the "Company"). All of the Shares were acquired by certain shareholders (the "Selling Shareholders") from the Company in connection with the Company's acquisition of C.W. Matthews Quarries, Inc., a Georgia corporation ("C.W. Matthews"). See "Selling Shareholders" below. All or a portion of the Shares may be offered by the Selling Shareholders from time to time (i) in transactions (which may include block transactions) on the New York Stock Exchange or such other national securities exchange or automated interdealer quotation system on which shares of the Company's Common Stock are then traded, (ii) in negotiated transactions, or (iii) by a combination of such methods of sale, at fixed prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, or at negotiated prices. The Selling Shareholders may effect such transactions by selling the Shares directly to purchasers or through underwriters, agents or broker-dealers, and any such underwriters, agents or broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Shareholders and/or the purchasers of the Shares for whom such underwriters, agents or broker-dealers may act as agents or to whom they may sell as principals, or both (which compensation as to a particular underwriter, agent or broker-dealer might be in excess of customary compensation). See "Selling Shareholders" and "Sale of Shares." The Company will bear all expenses in connection with the registration and sale of the Shares being offered by the Selling Shareholders, except the expenses related to special audits incident to or required by this registration, discounts, concessions or commissions to underwriters, agents or broker-dealers and fees and expenses of counsel beyond one counsel for all Selling Shareholders not to exceed five thousand dollars and other advisors to the Selling Shareholders. The Common Stock is traded on the New York Stock Exchange under the symbol "VMC." On April 30, 1998, the last sales price for the Common Stock as reported on the New York Stock Exchange composite tape was $115.0625 per share. _______________________ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. _______________________ The date of this Prospectus is May __, 1998. DOCUMENTS INCORPORATED BY REFERENCE The following documents have been filed by the Company with the Securities and Exchange Commission ("Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") and are incorporated herein by reference: 1. The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. 2. The description of the Company's Common Stock contained in the Company's Registration Statement filed pursuant to Section 12(b) of the Exchange Act. In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the termination of the offering hereunder shall be deemed to be incorporated by reference in this Prospectus and to be part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for all purposes to the extent that a statement contained herein or in any other subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person, to whom a copy of this Prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the documents incorporated by reference (not including the exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents). Requests for such copies should be directed to Mr. William F. Denson, Vulcan Materials Company, One Metroplex Drive Creek, Birmingham, Alabama 35209, or by telephone at (205) 877-3000. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Exchange Act, and in accordance therewith files reports, proxy and information statements and other information with the Commission. Such reports, proxy and information statements and other information filed by the Company with the Commission can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549; and at the Commission's Northeast Regional Office, 7 World Trade Center, Suite 1300, New York, New York 10048, and Midwest Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can also be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington D.C. 20549. The Commission maintains a Web site that contains reports, proxy and information statements and other information regarding registrants such as the Company that file electronically with the Commission. Such reports, proxy and information statements and other information may be found on the Commission's site address, http://www.sec.gov. In addition, such reports, proxy and information statements and other information concerning the Company may be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. The Company has filed a Registration Statement on Form S-3 (together with all amendments and exhibits filed or to be filed in connection therewith, the "Registration Statement") with the Commission pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of which this Prospectus forms a part. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. Such additional information may be obtained from the Commission's principal office in Washington, D.C. Statements contained or incorporated by reference herein concerning the provisions of documents are necessarily summaries of such documents, and each statement is qualified in its entirety by reference to the copy of the applicable document filed with the Commission. -2- THE COMPANY Vulcan Materials Company, a New Jersey corporation incorporated in 1956, and its subsidiaries (together called the "Company") are principally engaged in the production, distribution and sale of construction materials and industrial and specialty chemicals. The Company's principal executive offices are located at One Metroplex Drive, Birmingham, Alabama 35209, and its telephone number is (205) 877-3000. -3- SELLING SHAREHOLDERS The Company issued approximately 387,000 shares of Common Stock to the Selling Shareholders on May 1, 1998 (the "Shares"), pursuant to the terms of the Asset Purchase Agreement and Plan of Reorganization (the "Asset Purchase Agreement") dated September 29, 1997, by and among C.W. Matthews, the shareholders of C.W. Matthews and the Company, as amended by the First Amendment to the Asset Purchase Agreement dated December 19, 1997, the Second Amendment to the Asset Purchase Agreement dated January 15, 1998, and the Third Amendment to the Asset Purchase Agreement dated May 1, 1998 (collectively, the "C.W. Matthews Acquisition"), under which the Company acquired certain assets of C.W. Matthews, including the rights to the Bellwood and Rockmart Quarries (as therein defined) in consideration for the Shares. In connection with the C.W. Matthews Acquisition, the Company entered into a Registration Rights Agreement (the "Registration Rights Agreement") dated May 1, 1998, with the Selling Shareholders pursuant to which the Company agreed to file a registration statement with the Commission to register the Shares for resale by the Selling Shareholders. The Registration Statement of which this Prospectus is a part was filed with the Commission pursuant to the Registration Rights Agreement. In connection with the C.W. Matthews Acquisition, the Company entered into an Escrow Agreement (the "Escrow Agreement") dated May 1, 1998, with C.W. Matthews and the Selling Shareholders pursuant to which 10,293 shares of Common Stock (the "Escrow Shares") will be held in escrow by Sun Trust Bank, Atlanta, the escrow agent, until either (a) the Company fails by October 30, 2004 to apply for, or obtains (i) a certificate of zoning compliance, (ii) a land disturbance permit or (iii) a building permit authorizing the construction of a plant on the Bellwood Quarry property, in which case the Escrow Shares will be disbursed to the Selling Shareholders, or (b) May 1, 2005, in which case the Escrow Shares will be disbursed to the Company. The following table sets forth (i) the name of each of the Selling Shareholders, and (ii) the number of shares of Common Stock beneficially owned by each Selling Shareholder prior to the offering.
SHARES BENEFICIALLY OWNED Prior to Offering -------------------- SELLING SHAREHOLDER NUMBER (1) PERCENT - ---------------------------------------------------------------- --------------- ------------------- Robert E. Matthews.............................................. 279,402(2) 1% James C. Scott, Jr.............................................. 24,722(3) * Q. William Hammack, Jr.......................................... 24,722(4) * Charles Matthews Subchapter S Trust U/A December 12, 1994......................................... 25,264(5) * Mary Matthews Burton Subchapter S Trust U/A December 12, 1994................................... 25,302(6) * Luke Doran Burton Subchapter S Trust U/A December 12, 1994......................................... 4,565(7) * Michael Scott Matthews Subchapter S Trust U/A May 22, 1995........................................ 2,747(8) * Katherine Dawn Matthews Subchapter S Trust U/A February 14, 1997................................. 1,161(9) * ___________________ *Less than 1% (1) All share ownership information was provided to the Company by the Selling Shareholders. (2) Robert E. Matthews owned 1,000 shares of Common Stock prior to the closing of the C.W. Matthews acquisition. Of his 279,402 shares of Common Stock, 7,407 shares are held in escrow under the Escrow Agreement. (3) Of his 24,722 shares of Common Stock, 658 shares are held in escrow under the Escrow Agreement. (4) Of his 24,722 shares of Common Stock, 658 shares are held in escrow under the Escrow Agreement. (5) Of its 25,264 shares of Common Stock, 672 shares are held in escrow under the Escrow Agreement. (6) Of its 25,302 shares of Common Stock, 673 shares are held in escrow under the Escrow Agreement. (7) Of its 4,565 shares of Common Stock, 121 shares are held in escrow under the Escrow Agreement. (8) Of its 2,747 shares of Common Stock, 73 shares are held in escrow under the Escrow Agreement. (9) Of its 1,161 shares of Common Stock, 31 shares are held in escrow under the Escrow Agreement.
-4- SALE OF SHARES The Shares may be sold from time to time by the Selling Shareholders, or by pledgees, donees, transferees or other successors in interest. Such sales may be made from time to time (i) in transactions (which may include block sales) on the New York Stock Exchange or such other national securities exchange or automated interdealer quotation system on which shares of Common Stock are then listed, (ii) in negotiated transactions, or (iii) through a combination of such methods of sale, at fixed prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, or at negotiated prices. The Shares may be sold directly to purchasers or through underwriters, agents or broker-dealers by one or more of the following: (a) ordinary brokerage transactions and transactions in which the broker solicits purchasers; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; (c) a block trade in which the broker or dealer so engaged will attempt to sell the Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (d) an exchange distribution in accordance with the rules of the exchange or automated interdealer quotation system on which the Common Stock is then listed; and (e) through the writing of options on the Shares. Any such underwriters, agents or broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Shareholders and/or the purchasers of the Shares for which such underwriters, agents or broker-dealers may act as agents or to whom they sell as principals, or both (which compensation as to an underwriter, agent or particular broker- dealer will be negotiated prior to the sale and may be in excess of customary compensation). If required by applicable law at the time a particular offer of Shares is made, the terms and conditions of such transaction will be set forth in a Prospectus Supplement to this Prospectus. In addition, any Shares covered by this Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this Prospectus. The Selling Shareholders and any underwriters, agents or broker-dealers who act in connection with the sale of the Shares hereunder may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act, and any compensation received by them might be deemed to be underwriting discounts and commissions under the Securities Act. Under agreements that the Selling Shareholders and the Company may enter into, each underwriter and each person who controls any underwriter may be entitled to indemnification by the Selling Shareholders and the Company against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to the registration or qualification of the shares, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with the registration or qualification of the shares. The Selling Shareholders and the Company have agreed to indemnify each other against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any prospectus, offering circular or other document (including any related registration statement, notification or the like) incident to the registration or qualification of the shares, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or the Exchange Act or any rule or regulation thereunder applicable to the Company and relating to action or inaction required of the Company in connection with the registration or qualification of the shares. The Company will bear all expenses in connection with the registration and sale of the Shares being offered by the Selling Shareholders, except the expenses related to special audits incident to or required by this registration, discounts, concessions or commissions to underwriters, agents or broker-dealers and fees and expenses of counsel beyond one counsel for all Selling Shareholders not to exceed five thousand dollars and other advisors to the Selling Shareholders. -5- LEGAL MATTERS Certain legal matters in connection with the Common Stock offered hereby will be passed upon for the Company by Alston & Bird LLP, Atlanta, Georgia. EXPERTS The consolidated financial statements and the related financial statement schedule incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 1997 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing. -6- ================================================================================ No dealer, salesperson or any other person has been authorized to give any information or to make any representations other than those contained in this Prospectus, and if given or made, such information or representations must not be relied upon as having been authorized by the Company or the Selling Shareholders. This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, to any person in any jurisdiction in which such offer to sell or solicitation is not authorized, or in which the person making such offer or solicitation is not qualified to do so, or to any person to whom it is unlawful to make such offer or solicitation. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that the information contained herein is correct as of any time subsequent to the date hereof. ______________ TABLE OF CONTENTS
PAGE ---- DOCUMENTS INCORPORATED BY REFERENCE........................................ 2 AVAILABLE INFORMATION...................................................... 2 THE COMPANY................................................................ 3 SELLING SHAREHOLDERS....................................................... 4 SALE OF SHARES............................................................. 5 LEGAL MATTERS.............................................................. 6 EXPERTS.................................................................... 6
410,000 SHARES VULCAN MATERIALS COMPANY COMMON STOCK MAY __, 1998 ================================================================================ PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the distribution of the Common Stock are set forth in the following table. All amounts except the Securities and Exchange Commission registration fee are estimated. The Company will bear all expenses in connection with the registration and sale of the Shares being offered by the Selling Shareholders, except to the expenses related to special audits incident to or required by this registration, discounts, concessions or commissions to underwriters, agents or broker-dealers and fees and expenses of counsel beyond one counsel for all Selling Shareholders not to exceed five thousand dollars and other advisors to the Selling Shareholders.
Securities and Exchange Commission registration fee $13,588 Legal fees and expenses................................................... 25,000 Accountants' fees and expenses............................................ 6,000 Miscellaneous............................................................. 5,412 Total.................................................................. 50,000
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 14A:3-5 of the New Jersey Business Corporation Act empowers a New Jersey corporation to indemnify present and former directors, officers, employees or agents of the corporation and certain other specified persons. Article IV of the By-Laws of the Registrant provides as follows: (a) Subject to the provisions of this Article IV, the corporation shall indemnify the following persons to the fullest extent permitted and in the manner provided by and the circumstances described in the laws of the State of New Jersey, including Section 14A:3-5 of the New Jersey Business Corporation Act and any amendments thereof or supplements thereto: (i) any person who is or was a director, officer, employee or agent of the corporation; (ii) any person who is or was a director, officer, employee or agent of any constituent corporation absorbed by the corporation in a consolidation or merger, but only to the extent that (a) the constituent corporation was obligated to indemnify such person at the effective date of the merger or consolidation or (b) the claim or potential claim of such person for indemnification was disclosed to the corporation and the operative merger or consolidation documents contain an express agreement by the corporation to pay the same; (iii) any person who is or was serving at the request of the corporation as a director, officer, trustee, fiduciary, employee or agent of any other domestic or foreign corporation, or any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, whether or not for profit; and (iv) the legal representative of any of the foregoing persons (collectively, a "Corporate Agent"). (b) Anything herein to the contrary notwithstanding, the corporation shall not be obligated under this Article IV to provide indemnification (i) to any bank, trust company, insurance company, partnership or other entity, or any director, officer, employee or agent thereof or (ii) to any other person who is not a director, officer or employee of the corporation, in respect of any service by such person or entity, whether at the request of the corporation or by agreement therewith, as investment advisor, actuary, custodian, trustee, fiduciary or consultant to any employee benefit plan. (c) To the extent that any right of indemnification granted hereunder requires any determination that a Corporate Agent shall have been successful on the merits or otherwise in any Proceeding (as hereinafter defined) or in defense of any claim, issue or matter therein, the Corporate Agent shall be deemed to have been "successful" if, without any settlement having II-1 been made by the Corporate Agent, (i) such Proceeding shall have been dismissed or otherwise terminated or abandoned without any judgment or order having been entered against the Corporate Agent, (ii) such claim, issue or other matter therein shall have been dismissed or otherwise eliminated or abandoned as against the Corporate Agent, or (iii) with respect to any threatened Proceeding, the Proceeding shall have been abandoned or there shall have been a failure for any reason to institute the Proceeding within a reasonable time after the same shall have been threatened or after any inquiry or investigation that could have led to any such Proceeding shall have been commenced. The Board of Directors or any authorized committee thereof shall have the right to determine what constitutes a "reasonable time" or an "abandonment" for purposes of this paragraph (c), and any such determination shall be conclusive and final. (d) To the extent that any right of indemnification granted hereunder shall require any determination that the Corporate Agent has been involved in a Proceeding by reason of his or her being or having been a Corporate Agent, the Corporate Agent shall be deemed to have been so involved if the Proceeding involves action allegedly taken by the Corporate Agent for the benefit of the corporation or in the performance of his or her duties or the course of his or her employment for the corporation. (e) If a Corporate Agent shall be a party defendant in a Proceeding, other than a Proceeding by or in the right of the corporation, and the Board of Directors or a duly authorized committee of disinterested directors shall determine that it is in the best interests of the corporation for the corporation to assume the defense of any such Proceeding, the Board of Directors or such committee may authorize and direct that the corporation assume the defense of the Proceeding and pay all expenses in connection therewith without requiring such Corporate Agent to undertake to pay or repay any part thereof. Such assumption shall not affect the right of any such Corporate Agent to employ his or her own counsel or to recover indemnification under this By-law to the extent that he may be entitled thereto. (f) As used herein, the term "Proceeding" shall mean and include any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any inquiry or investigation which could lead to such action, suit or proceeding. (g) The right to indemnification granted under this Article IV shall not be exclusive of any other rights to which any Corporate Agent seeking indemnification hereunder may be entitled. The Company maintains directors and officers liability insurance which insures against liabilities that directors and officers of the Company may incur in such capacities. Pursuant to a Registration Rights Agreement between the C.W. Matthews, the shareholders of C.W. Matthews and the Company, the Selling Shareholders have agreed to indemnify the Company, each of its directors and officers and each underwriter, if any, of the Company's securities covered by this registration statement, each person who controls the Company or such underwriter against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in this registration statement, prospectus, offering circular or other document made by such Selling Shareholder, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements by such Selling Shareholder therein not misleading, and will reimburse the Company and such directors, officers, partners, members, persons, underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in this registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished II-2 to the Company by such Selling Shareholder and stated to be specifically for use therein; provided, however, that the obligations of each of the Selling Shareholders hereunder is limited to an amount equal to the net proceeds to such Selling Shareholder of securities being sold. II-3 ITEM 16. EXHIBITS EXHIBIT NO. DESCRIPTION - ----------- ----------- 2 Asset Purchase Agreement and Plan of Reorganization (the "Asset Purchase Agreement") dated September 29, 1997, by and among C.W. Matthew Quarries, Inc., the shareholders of C.W. Matthews Quarries, Inc. and the Company, as amended by the First Amendment to the Asset Purchase Agreement dated December 19, 1997, and the Second Amendment to the Asset Purchase Agreement dated January 15, 1998.** 3 (i) Certificate of Incorporation (Restated 1988) of the Company filed as Exhibit 3 (a) to the Company's 1988 Form 10-K Annual Report (File No. 1-4033).* 3 (ii) By-laws of the Company, as restated February 2, 1990, and as last amended February 14, 1997, filed as Exhibit 3(ii) to the Company's 1996 Form 10-K Annual Report (File No. 1- 4033).* 5 Opinion of Alston & Bird LLP.** 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Alston & Bird LLP (included in Exhibit 5). 24 Powers of Attorney.** 99.1 Form of Registration Rights Agreement by and between C.W. Matthews, the shareholders of C.W. Matthews and the Company.** 99.2 Form of Escrow Agreement between C.W. Matthews, the shareholders of C.W. Matthews, the Company and Sun Trust Bank, Atlanta. * Incorporated by reference **Previously filed Item 17. UNDERTAKINGS (a) The Undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement. II-4 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Section do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) If the registrant is a foreign private issuer, to file a post- effective amendment to the Registration Statement to include any financial statements required by Rule 3-19 of this chapter at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, the financial statements required pursuant to this paragraph (a)(4) and other information necessary to insure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to Registration Statements on Form F-3, a post- effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Rule 3-19 of this Chapter if such financial statements and information are contained in periodic reports filed with or furnished with the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed the initial bona fide offering thereof. (h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Birmingham, State of Alabama, as of April 29, 1998. VULCAN MATERIALS COMPANY By: /s/ Donald M. James -------------------------------------------- Donald M. James Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities indicated as of April 29, 1998.
Signatures Title Date ---------- ----- ---- /S/ D. M. James Chairman, Chief Executive Officer and April 29, 1998 ---------------------- and Director D. M. James (Principal Executive Officer) /s/ P.J. Clemens, III Executive Vice President - Finance and April 29, 1998 ---------------------- and Administration P.J. Clemens, III (Principal Financial Officer) /s/ E.A. Khan Controller April 29, 1998 ---------------------- (Principal Accounting Officer) E.A. Khan The following directors: Marion H. Antonini Director Livio D. DeSimone Director John K. Greene Director Douglas J. McGregor Director Ann D. McLaughlin Director James V. Napier Director Donald B. Rice Director Herbert A. Sklenar Director Orin R. Smith Director By:/s/ William F. Denson, III April 29, 1998 ----------------------------- William F. Denson, III Attorney-in-fact
II-6 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION - ----------- ----------- 23.1 Consent of Deloitte & Touche LLP. 99.2 Form of Escrow Agreement between C.W. Matthews, the shareholders of C.W. Matthews, the Company and Sun Trust Bank, Atlanta. EX-23.1 2 CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Vulcan Materials Company on Form S-3 of our reports dated February 6, 1998, appearing in and incorporated by reference in the Annual Report on Form 10-K of Vulcan Materials Company for the year ended December 31, 1997 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ Deloitte & Touche LLP Birmingham, Alabama April 29, 1998 EX-99.2 3 FORM OF ESCROW AGREEMENT EXHIBIT 99.2 ESCROW AGREEMENT ---------------- THIS ESCROW AGREEMENT (this "Agreement") is made as of April 30, 1998, by and among Vulcan Materials Company, a New Jersey corporation ("Vulcan"), C.W. Matthews Quarries, Inc., a Georgia corporation ("Matthews"), the shareholders of Matthews listed on SCHEDULE A hereto (each being a "Shareholder," and all of them together being the "Shareholders") and SunTrust Bank, Atlanta, a Georgia banking corporation ("Escrow Agent"). BACKGROUND ---------- A. Vulcan, Matthews and the Shareholders are parties to that certain Asset Purchase Agreement and Plan of Reorganization, dated September 29, 1997 (the "Asset Purchase Agreement"), by and among Matthews, the Shareholders and Vulcan, as amended by the First Amendment to the Asset Purchase Agreement dated December 19, 1997, and the Second Amendment to the Asset Purchase Agreement dated January 15, 1998 (collectively, the "Purchase Agreement"). B. The capitalized terms used herein and not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement. C. The 37 acre tract of land described in SCHEDULE A was formerly owned by Matthews and was conveyed to Fulton County, Georgia on January 21, 1998 (the "Parcel"). D. The parties to the Purchase Agreement acknowledge that Vulcan has assumed as part of its operating plan for the Parcel that a rebuilt stone processing plant (the "Plant") will be placed on the Parcel no later than the seventh anniversary of the Closing of the Purchase Agreement. E. The parties have agreed to place 10,293 shares of Common Stock of Vulcan ("Common Stock") into escrow at the Closing to protect Vulcan against the adverse financial consequences of being unable to place the Plant on the Parcel. F. Escrow Agent is willing to accept the escrow fund and to hold and distribute the escrow fund in accordance with the terms and conditions set forth herein. AGREEMENT --------- NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Appointment of Escrow Agent. Vulcan, Matthews and each of the --------------------------- Shareholders hereby designate and appoint Escrow Agent to serve as escrow agent hereunder, and Escrow Agent hereby confirms its agreement to act as escrow agent upon the terms, conditions, and provisions of this Agreement and no additional duties or obligations shall be implied hereunder. 2. Creation of the Escrow Shares. ----------------------------- (a) Concurrently with the Closing and the execution and delivery of this Agreement, the Shareholders have deposited 10,293 shares of Common Stock with Escrow Agent (the "Escrow Shares"). (b) On this date, each Shareholder shall execute and deliver one or more stock powers in negotiable form representing the Escrow Shares and naming Escrow Agent, as representative of the respective interests of the Shareholders, as the registered holder. (c) Escrow Agent acknowledges receipt of the Escrow Shares and agrees to hold and disburse the Escrow Shares for the benefit of Vulcan and the Shareholders, as the case may be, in accordance with the provisions of this Agreement. (d) SCHEDULE B hereto sets forth the respective number of Escrow Shares of each Shareholder as of May 1, 1998 (each Shareholder's "Escrow Shares"). (e) The Shareholders are entitled to receive currently any and all cash dividends or other cash income with respect to each Shareholder's Escrow Shares ("Dividends"). The Shareholders shall include any Dividends in their respective incomes. Each Shareholder has the right to direct Escrow Agent in writing as to the exercise of voting rights with respect to the portion of the Escrow Shares held by the Escrow Agent on behalf of such Shareholder, and the Escrow Agent shall comply with any such directions if received in a timely manner. In the absence of such directions, the Escrow Agent shall not vote any such portion of the Escrow Shares. (f) In the event of any stock split or stock dividend with respect to the Escrow Shares that becomes effective during the term of this Agreement, the additional shares so issued with respect to the Escrow Shares shall be added to the Escrow Shares and subject to the escrow covered by this Agreement, and any other references herein to a specific number of shares of the Common Stock shall be adjusted accordingly. (g) Escrow Agent shall maintain a ledger (the "Escrow Ledger") setting forth (i) the name and address of each Shareholder, (ii) the amount of the Escrow Shares, (iii) the portion of the Escrow Shares attributable to each Shareholder, (iv) the amount of Dividends, (v) each Shareholder's share of Dividends based on such Shareholder's Escrow Shares, and (vii) such other information as Vulcan or the Shareholders may reasonably require from time to time in writing for the administration of this Agreement. Escrow Agent shall send copies of each updated version of the Escrow Ledger to Vulcan and all Shareholders as soon as practicable -2- following each such update and each March 31, June 30, September 30 and December 31 during the term of this Agreement. 3. Term. The term of this Agreement commences on the date hereof and ---- shall terminate at such time as all of the Escrow Shares have been distributed to Vulcan or the Shareholders pursuant to the terms of this Agreement. 4. Certificate of Zoning Compliance/Building Permit. Vulcan shall take ------------------------------------------------- reasonable efforts to apply to the City of Atlanta, Georgia, for (a) a Certificate of Zoning Compliance confirming that the zoning status of the Parcel allows as a permitted use the construction of the proposed Plant, or (b) a land disturbance permit authorizing the construction of the proposed Plant on the Parcel, or (c) a building permit authorizing the construction of the proposed Plant on the Parcel (in each case, the "Approval"). Matthews and the Shareholders expressly acknowledge that Vulcan has the sole discretion to select among the three foregoing options to confirm the zoning status of the Parcel. Vulcan shall apply to the City of Atlanta for the Approval by no later than October 30, 2004. 5. Distributions from Escrow Shares. -------------------------------- (a) Unless Escrow Agent receives on or before October 30, 2004 evidence in the form of a certified letter from the City of Atlanta stating that Vulcan has applied for the Approval (or other reasonable documentation to such effect), Escrow Agent shall distribute the Escrow Shares to the Shareholders in accordance with each Shareholder's Escrow Shares. (b) Subject to the provisions of Section 5(e), if Vulcan applies for the Approval and the Approval is denied solely by reason of the failure of the Parcel (which failure existed on the Closing Date) to comply in all material respects with zoning ordinances that are legally valid and applicable to the Parcel, then, upon receipt of evidence of such denial in the form of a copy of the application submitted to the City of Atlanta and a copy of the transmittal from the City of Atlanta ruling on such application, Escrow Agent shall distribute the Escrow Shares to Vulcan. (c) If the City of Atlanta grants the Approval, Vulcan shall provide notice to the Shareholders and to Escrow Agent of such grant in accordance with Section 12(e) and, upon receipt of such notice (or other reasonable documentation to such effect), Escrow Agent shall distribute the Escrow Shares to the Shareholders in accordance with each Shareholder's Escrow Shares. (d) Except as otherwise provided in Section 5(e), if no evidence of the denial or approval of the Certificate of Zoning Compliance is provided to Escrow Agent on or before the close of business on May 1, 2005, Escrow Agent shall promptly distribute the Escrow Shares to the Shareholders in accordance with each Shareholder's Escrow Shares. -3- (e) Neither Vulcan nor Escrow Agent has the obligation to seek administrative review or institute litigation regarding the decision by the City of Atlanta, Georgia to grant or deny the Approval; provided, however, Vulcan shall (i) allow the Shareholders to conduct an appeal of any such decision on behalf of Vulcan and, if necessary or advisable, in Vulcan's name (with Vulcan's participation, if such participation is desired by Vulcan) and (ii) cooperate with any such appeal by the Shareholders. If such an appeal is filed, Escrow Agent shall not distribute the Escrow Shares while the appeal is pending. If such an appeal is pending on May 1, 2005, the deadline provided in Section 5(d) shall not expire and Escrow Agent shall not distribute the Escrow Shares before there is a determination of the appeal. If the appeal is successful, then upon receipt of reasonable documentation to such effect, Escrow Agent shall promptly distribute the Escrow Shares to the Shareholders in accordance with each Shareholder's Escrow Shares. If the Approval is denied after exhaustion of all appeals, Escrow Agent shall distribute the Escrow Shares to Vulcan. (f) Escrow Agent shall have no liability in acting upon any of the above evidence. In addition, Escrow Agent shall not have any responsibility to elicit or obtain any such evidence from the City of Atlanta, Georgia, but shall act only on evidence which has been provided to Escrow Agent. (g) Escrow Agent shall be entitled to rely upon and shall be protected in acting upon any certification, statement, request, consent, receipt, instructions, or agreement whatsoever which Escrow Agent in good faith believes to be genuine, to have been signed or presented by the person or parties purporting to sign or present the same, not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and accuracy of any information therein contained, so long as it conforms to the provisions of this Agreement and so long as a copy of it has been provided to both Vulcan and Matthews at least ten (10) days prior to Escrow Agent's action, and in reliance thereon Escrow Agent shall not incur any liability under this Agreement. 6. Escrow Agent's Duties. Escrow Agent has only such duties as expressly --------------------- set forth in this Agreement and the Schedules hereto, and is not required, in carrying out its duties under this Agreement, to refer to the Purchase Agreement or any other agreement between the parties or any of them or among the parties or any of them and any other person or entity. Escrow Agent shall not be liable for any act or failure to act arising from the transactions contemplated by this Agreement, other than for its gross negligence or willful misconduct. 7. Remedies of Escrow Agent. In the event of any disagreement or ------------------------ controversy hereunder, or if conflicting demands or notices are made upon Escrow Agent, or if Escrow Agent in good faith is in doubt as to what action it should take hereunder, the parties expressly agree and consent that Escrow Agent shall have the absolute right, at its option, to file a suit in interpleader and obtain an order from a court of competent jurisdiction requiring all persons involved to interplead their several claims and rights among themselves and with Escrow Agent. 8. Reliance on Counsel. Escrow Agent may from time to time consult with ------------------- legal counsel of its own choosing in the event of any disagreement, or -4- controversy, or question or doubt as to the construction of any of the provisions hereof or its duties hereunder, and it shall incur no liability and shall be fully protected in acting in good faith in accordance with the opinion or instructions of such counsel. Any such fees and expenses of such legal counsel shall be considered part of the fees and expenses of Escrow Agent described within this Escrow Agreement. 9. Escrow Agent's Fees and Expenses. Vulcan and Matthews herewith remit -------------------------------- to Escrow Agent the sum of $1,250 in partial consideration for carrying out Escrow Agent's duties hereunder. Vulcan and Robert E. Matthews shall pay all additional reasonable compensation of Escrow Agent as set forth in SCHEDULE C hereto and all expenses, disbursements, and advances incurred in carrying out Escrow Agent's duties hereunder. If Escrow Agent resigns or is terminated pursuant to Section 11 of this Agreement, Escrow Agent shall be entitled to its compensation earned prior to such resignation or termination. 10. Indemnification. --------------- Vulcan and each of the Shareholders shall jointly and severally indemnify, protect and save and hold Escrow Agent and its successors and permitted assigns harmless from all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs and expenses (including reasonable attorneys' fees and expenses) of whatsoever kind or nature imposed on, incurred by or asserted against Escrow Agent which in any way relate to or arise out of the execution and delivery of this Agreement or any action taken hereunder; provided, however, -------- ------- that Vulcan and the Shareholders shall have no obligation to indemnify and save and hold Escrow Agent harmless from any liability incurred by, imposed upon, or asserted against Escrow Agent resulting from the gross negligence or willful misconduct of Escrow Agent. Vulcan shall indemnify Escrow Agent for up to one- half of the amount of any indemnification obligations owing by Vulcan under this Section 10, and all of the Shareholders shall indemnify Escrow Agent for up to one-half of the amount of any indemnification obligations owing under this Section 10, with each Shareholder being jointly and severally liable for the Shareholders' aggregate one-half share of any such indemnification obligations. The provisions of this Section 10 shall survive the term of this Agreement. 11. Resignation by or Termination of Escrow Agent. Escrow Agent may --------------------------------------------- resign as such by delivering written notice to such effect at least thirty (30) days prior to the effective date of such resignation to each of the Shareholders and Vulcan. Vulcan and the Shareholders, acting jointly, may terminate Escrow Agent from its position as such by delivering written notice to Escrow Agent to such effect executed by Vulcan and the Shareholders at least thirty (30) days prior to the effective date of such termination (unless such termination is as a result of Escrow Agent's breach of its obligations hereunder, in which case the effective date of such termination shall be any date specified in such notice by Vulcan and the Shareholders). In the event of such resignation by or termination of Escrow Agent, Vulcan and the Shareholders shall agree in a written instrument to the appointment of a successor escrow agent. The Escrow Agent which has been so terminated or has so resigned shall promptly deliver to the successor escrow agent the entire balance of the Escrow Shares (together with copies of all records pertaining thereto) upon presentation of evidence reasonably satisfactory to it of the appointment and authorization of -5- such successor escrow agent by Vulcan and the Shareholders. Upon receipt of the Escrow Shares, such successor escrow agent shall thereupon be bound by all of the provisions hereof. From and after the appointment of a successor escrow agent pursuant to this Section 11, all references herein to Escrow Agent shall be deemed to be to such successor escrow agent. Should Vulcan and the Shareholders fail to appoint a successor escrow agent within thirty (30) days of the effective date of any resignation or termination pursuant to this Section 11, then Escrow Agent may institute suit in a court of competent jurisdiction to have a successor escrow agent appointed and tender into the custody of that court all of the remaining portion of the Escrow Shares. 12. General Provisions. ------------------ (a) Assignment. This Agreement shall be binding upon the successors and ---------- permitted assigns of the parties. Neither this Agreement nor any right or benefit of any party hereunder may be assigned or transferred by such party without the prior written consent of all other parties hereto, which consent shall not be unreasonably withheld or delayed; provided, however, that Vulcan -------- ------- may assign its rights, together with its obligations, without prior written consent hereunder (i) to any of its affiliates, (ii) to any lender or lenders providing financing to Vulcan or its affiliates or (iii) in connection with any sale, transfer or other disposition (by operation of law or otherwise) of all or substantially all of its assets or business or stock of Vulcan. Vulcan may not sell or otherwise dispose of the Parcel without causing the transferee of the Parcel to assume all of Vulcan's obligation hereunder. (b) Amendment. This Agreement may not be amended or modified without the --------- prior written consent of all parties. (c) Waiver. Failure to insist upon strict compliance with any of the terms ------ or conditions of this Agreement at any one time shall not be deemed a waiver of such term or condition at any other time; nor shall any waiver or relinquishment of any right or power granted herein at any time be deemed a waiver or relinquishment of the same or any other right or power at any other time. (d) Governing Law. Notwithstanding the place where this Agreement may be ------------- executed by any of the parties, the parties expressly agree that this Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of Georgia, without regard for its conflict of laws doctrine. (e) Notices. All notices, requests, demands, tenders or other ------- communications required or permitted hereunder must be in writing and are deemed to have been duly given if (a) delivered personally, (b) sent by telecopy with the original sent via mail, (c) mailed, certified or registered mail, return receipt requested, postage prepaid, or (d) sent by Fedex or other nationally recognized overnight courier service or overnight express U.S. Mail, postage prepaid, as follows: -6- (i) If to Vulcan: Vulcan Materials Company P.O. Box 80730 Atlanta, Georgia 30366 or 2299 Perimeter Park Drive Atlanta, Georgia 30341 Attention: Mr. G.M. (Mac) Badgett, III, President, Southeast Division (Telephone: (770) 458-5896 (Telecopy: (770) 452-9505) (Tax Identification Number: 63-0366371) with copies to: Vulcan Materials Company P.O. Box 530187 Birmingham, Alabama 35253 or One Metroplex Drive Birmingham, Alabama 35209 Attention: Michael R. Mills, Esq. (Telephone: 205) 877-3207) (Telecopy: (205) 877-3094) -and- Alston & Bird, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Attention: Alexander W. Patterson, Esq. (Telephone: (404) 881-7688) (Telecopy: (404) 881-7777) (ii) If to Matthews or any of the Shareholders: c/o C.W. Matthews Quarries, Inc. P.O. Drawer 970 Marietta, Georgia 30061 or 1600 Kenview Drive Marietta, Georgia 30060 Attention: Mr. Robert E. Matthews, President (Telephone: (770) 422-7520) (Telecopy: (770) 422-1068) (Tax Identification Number: 58-2207049) -7- with a copy to: Kilpatrick Stockton LLP 1100 Peachtree Street Suite 2800 Atlanta, Georgia 30309 Attention: Harold E. Abrams, Esq. (Telephone: (404) 815-6600) (Telecopy: (404) 815-6555) (iii) If to Escrow Agent: SunTrust Bank, Atlanta Corporate Trust Department Room 400 - Annex 58 Edgewood Avenue Atlanta, Georgia 30303 Attention: Ronald C. Painter (Telephone: (404) 588-7191) (Telecopy: (404) 332-3966) Any party may change the address to which notices are to be sent by giving written notice of such change of address to the other parties in the manner above provided for giving notice. Notices personally delivered or transmitted by telecopy are deemed to have been given on the date so delivered or transmitted. Notices mailed are deemed to have been given on the date three (3) business days after the date posted, and notices sent in accordance with (d) above are deemed to have been given on the next business day after delivery to the courier service or U.S. Mail (in time for next day delivery). The parties may change the address for any such notice, request, demand, tender or other communication by delivery of such notice of change of address in accordance with the terms of this Section 12(e). (f) Invalid Provision. If any provision of this Agreement is determined to ----------------- be invalid or unenforceable, this Agreement shall be deemed amended to delete such provision and the remainder of this Agreement shall be enforceable by its terms. (g) Binding Effect. This Agreement shall be binding upon and inure to the -------------- benefit of the parties hereto and their respective permitted successors and assigns. (h) Further Assurances. Each party agrees to execute and deliver all such ------------------ further instruments and do all such further acts as may be reasonably necessary or appropriate to effectuate this Agreement. -8- (i) Headings. Headings and captions contained in this Agreement are -------- inserted only as a matter of convenience and for reference and in no way define, limit, extend or prescribe the scope of this Agreement or the intent of any provision. (j) Person and Gender. The masculine gender shall include the feminine and ----------------- neuter genders and the singular shall include the plural. (k) Entire Agreement; Exclusive Remedy. This Agreement constitutes the ---------------------------------- entire agreement of the parties with respect to matters set forth in this Agreement, and supersedes any prior understanding or agreement, oral or written, with respect to such matters. Specifically, the provisions of this Agreement supersede all provisions contained in the Purchase Agreement with respect to the representation of Seller and the Shareholders regarding the material compliance of the Parcel with applicable zoning laws, and the recovery of the Escrow Shares constitutes the exclusive remedy of Vulcan with respect to any damages incurred by reason of a breach of such representation. (l) Interpretations. Neither this Agreement nor any uncertainty or --------------- ambiguity herein shall be construed or resolved against any party hereto, whether under any rule of construction or otherwise. No party shall be considered the draftsman. On the contrary, this Agreement has been reviewed, negotiated and accepted by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties hereto. (m) Execution in Counterparts. This Agreement may be executed in any ------------------------- number of counterparts, each of which shall be an original, and all such counterparts shall constitute one and the same Agreement, binding on all the parties notwithstanding that all the parties are not signatories to the same counterpart. -9- IN WITNESS WHEREOF, the parties have each executed under seal or caused this Agreement to be duly executed under seal on their respective behalves by their respective duly authorized officers, all as of the day and year first above written. MATTHEWS: -------- ATTEST: C.W. MATTHEWS QUARRIES, INC., a Georgia corporation - ---------------------------- Name: James C. Scott, Jr. Title: Secretary By: ----------------------------- Robert E. Matthews [CORPORATE SEAL] President SHAREHOLDERS: ------------ (SEAL) ----------------------------- Robert E. Matthews (SEAL) ----------------------------- James C. Scott, Jr., individually; as Co-Trustee of the Charles Matthews Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Mary Matthews Burton Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Luke Doran Burton Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Michael Scott Matthews Subchapter S Trust U/A May 22, 1995; and as Co-Trustee of the Katherine Dawn Matthews Subchapter S Trust U/A February 14, 1997 -10- (SEAL) ------------------------------ Q. William Hammack, Jr., individually; as Co-Trustee of the Charles Matthews Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Mary Matthews Burton Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Luke Doran Burton Subchapter S Trust U/A December 12, 1994; as Co-Trustee of the Michael Scott Matthews Subchapter S Trust U/A May 22, 1995; and as Co-Trustee of the Katherine Dawn Matthews Subchapter S Trust U/A February 14, 1997 (SEAL) ------------------------------ Dianne Matthews, as Co-Trustee of the Charles Matthews Subchapter S Trust U/A December 12, 1994 and as Co-Trustee of the Mary Matthews Burton Subchapter S Trust U/A December 12, 1994 VULCAN: ------ ATTEST: VULCAN MATERIALS COMPANY, a New Jersey corporation - --------------------------------- Name: Roger Estill Title: Comptroller By: ---------------------------- Name: Mac Badgett [CORPORATE SEAL] Title: President, Southeast Division ESCROW AGENT: ------------ SUNTRUST BANK, ATLANTA By: ---------------------------- Name: Ronald C. Painter Title: Vice President, Corporate Trust -11- SCHEDULE A The Parcel ---------- Lease Tract 38.464 Acres All that tract or parcel of land lying in Land Lot 225, of the 17th District, of Fulton County, Georgia and being more particularly described as follows: To find the POINT OF BEGINNING commence at a point (iron pin found) at the intersection of the Easterly right-of-way of Grove Park Place (60' R/W) and the Southerly right-of-way of Johnson Road (80 R/W), said point being the TRUE POINT OF BEGINNING. From the TRUE POINT OF BEGINNING as thus established, THENCE along said right-of-way of Johnson Road, along a 1066.13 foot radius curve turning to the left an arc distance of 712.40 feet (said curve being subtended. by a chord bearing North 70 degrees 05 minutes 17 seconds East a distance of 699.22 feet) to a point; THENCE North 51 degrees 13 minutes 55 seconds East a distance of 313.87 feet to an iron pin found; THENCE leaving said right-of-way of Johnson Road, South 78 degrees 27 minutes 59 seconds East a distance of 702.14 feet to a point on the approximate location of the Land Lot Line common to Land Lots 190 and 225; THENCE along said Land Lot Line, South 01 degrees 49 minutes 55 seconds West a distance of 676.75 feet to an iron pin found; THENCE South 00 degrees 54 minutes 00 seconds East a distance of 339.65 feet to an iron pin set; THENCE leaving said Land Lot Line, North 88 degrees 59 minutes 43 seconds West a distance of 639.91 feet to an iron pin set; THENCE South 00 degrees 56 minutes 06 seconds East a distance of 549.92 feet to an iron pin set; THENCE North 89 degrees 17 minutes 40 seconds West a distance of 179.98 feet to an iron pin set; THENCE North 00 degrees 42 minutes 20 seconds East a distance of 49.99 feet to an iron pin set; THENCE South 89 degrees 17 minutes 40 seconds East a distance of 139.98 feet to an iron pin set; THENCE North 00 degrees 42 minutes 20 seconds East a distance of 49.99 feet to an iron pin set; THENCE North 89 degrees 17 minutes 40 seconds West a distance of 390.59 feet to an iron pin set; THENCE along a 7242.25 foot radius curve turning to the right an arc distance of 449.5 8 feet (said curve being subtended by a chord bearing North 25 degrees 03 minutes 00 seconds West a distance of 449.51 feet) to an iron pin set; -12- THENCE South 74 degrees 04 minutes 14 seconds West a distance of 6.62 feet to an iron pin set on said right-of-way of Grove Park Place; THENCE along said right-of-way of Grove Park Place, along a 412.82 foot radius curve turning to the left an arc distance of 135.64 feet (said curve being subtended by a chord bearing North 25 degrees 23 minutes 29 seconds West a distance of 135.03 feet) to a point; THENCE North 34 degrees 48 minutes 05 seconds West a distance of 281.47 feet to an iron pin set; THENCE along a 542.77 foot radius curve turning to the right an arc distance of 322.20 feet (said curve being subtended by a chord bearing North 17 degrees 48 minutes 05 seconds West a distance of 317.49 feet) to a point; THENCE North 00 degrees 48 minutes 05 seconds West a distance of 94.27 feet to a point (iron pin found) at the right-of-way intersections of Johnson Road and Grove Park Place, said point being the TRUE POINT OF BEGINNING. Less and except tract of Lug shown as Pactel Cellular, Inc. of America Lease Tract being more particularly described as follows: To find the POINT OF BEGINNING commence at an iron pin found at the intersection of the Easterly right-of-way of Grove Park Place (60' R/W) and the Southerly right-of-way of Johnson Road (80 R/W). THENCE along said right-of-way of Johnson Road, along a 1066.13 foot radius curve turning to the left an arc distance of 712.40 feet (said curve being subtended by a chord bearing North 70 degrees 05 minutes 17 seconds East a distance of 699.22 feet) to a point; THENCE North 51 degrees 13 minutes 55 seconds East a distance of 98.93 feet to a point; THENCE leaving said right-of-way of Johnson Road, along a 21.950 foot radius curve turning to the left an arc distance of 23.940 feet (said curve being subtended by a chord bearing South 70 degrees 08 minutes 57 seconds East a distance of 22.771 feet) to a point; THENCE North 78 degrees 33 minutes 39 seconds East a distance of 114.088 feet to a point, said point being the TRUE POINT OF BEGINNING. From the TRUE POINT OF BEGINNING as thus established, THENCE North 38 degrees 46 minutes 05 seconds West a distance of 30.000 feet to a point; THENCE North 51 degrees 13 minutes 55 seconds East a distance of 7.500 feet to a point; THENCE North 51 degrees 13 minutes 55 seconds East a distance of 52.500 feet to a point; THENCE South 38 degrees 46 minutes 05 seconds East a distance of 60.000 feet to a point; THENCE South 51 degrees 13 minutes 55 seconds West a distance of 60.000 feet to a point; THENCE North 38 degrees 46 minutes 05 seconds West a distance of 30.000 feet to a point, said point being the TRUE POINT OF BEGINNING. Said tract of land containing 38.464 acres, less and except 0.083 acres contained in said Pactel Cellular, Inc. of America lease tract, and being shown on and described according to that certain plat titled "Composite Lease Boundary for C. W. Matthews" by Blue Ridge Engineering, Inc., dated October 29, 1997, and bearing the seal of H. Tate Jones Ga. RLS # 2339, which survey is hereby made part of this legal description by this reference. -13- SCHEDULE B Escrow Shares
Number of Shareholder Escrow Shares - ------------------------------------------------------------------ ------------- Robert E. Matthews 7,407 Taxpayer Identification Number: ###-##-#### James C. Scott, Jr. 658 Taxpayer Identification Number: ###-##-#### Q. William Hammack, Jr. 658 Taxpayer Identification Number: ###-##-#### Charles Matthews Subchapter S Trust U/A December 12, 1994 672 Taxpayer Identification Number: 58-6302995 Katherine Dawn Matthews Subchapter S Trust U/A February 14, 1997 31 Taxpayer Identification Number: 58-6339950 Luke Doran Burton Subchapter S Trust U/A December 12, 1994 121 Taxpayer Identification Number: 58-6302996 Mary Matthews Burton Subchapter S Trust U/A December 12, 1994 673 Taxpayer Identification Number: 58-6302994 Michael Scott Matthews Subchapter S Trust U/A May 22, 1995 73 Taxpayer Identification Number: 58-6308544 ------ TOTALS 10,293
-14- SCHEDULE C Escrow Agent's Fees ------------------- The annual fee of $1,250 for administering this Agreement is due from Vulcan and Matthews at the time of closing. Unless this Agreement is terminated in accordance with Section 3 of this Agreement, the annual fee will be divided in half and one half will be invoiced to Vulcan and the other half will be invoiced to Robert E. Matthews, with any fractional cent to be invoiced to Vulcan, (as provided in Section 9 of this Agreement) in each of the next seven anniversaries of this Agreement. Administrative expenses such as, but not limited to postage, courier, overnight mail, insurance, legal, money wire transfer, long distance telephone charges, facsimile, stationery, travel, etc., will be divided in half and one half will be invoiced to Vulcan and the other half will be invoiced to Robert E. Matthews, with any fractional cent to be invoiced to Vulcan, as appropriate, at cost and per annum, with the costs not to exceed $50 per annum, unless approved by Vulcan and Robert E. Matthews in advance for any costs that exceed $50 per annum. It is acknowledged that the schedule of fees shown above are acceptable for the services mutually agreed upon and the parties authorize SunTrust Bank, Atlanta to perform said services. -15- -----END PRIVACY-ENHANCED MESSAGE-----