-----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, CUvjdljaLcuhhr7M8kspjbxuPJwwywXcgLn80AwkQ+M3Q0nt8mDDjrnQe1sl9oOT hIbGVJr/2DeHGIvncI9apA== 0000950144-99-003445.txt : 19990331 0000950144-99-003445.hdr.sgml : 19990331 ACCESSION NUMBER: 0000950144-99-003445 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990330 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: 333-68895 FILM NUMBER: 99577134 BUSINESS ADDRESS: STREET 1: ONE METROPLEX DRIVE CITY: BIRMINGHAM STATE: AL ZIP: 35242 BUSINESS PHONE: 2052983000 MAIL ADDRESS: STREET 1: PO BOX 530187 CITY: BIRMINGHAM STATE: AL ZIP: 35253-0187 S-3/A 1 VULCAN MATERIALS COMPANY 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 29, 1999 REGISTRATION NO. 333-68895 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- AMENDMENT NO. 2 TO 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 of Incorporation) (I.R.S. Employer Identification Number)
1200 URBAN CENTER DRIVE BIRMINGHAM, ALABAMA 35242 (205) 298-3000 (205) 298-2960 (FAX) (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ------------------------- WILLIAM F. DENSON, III SENIOR VICE PRESIDENT-LAW AND SECRETARY 1200 URBAN CENTER DRIVE BIRMINGHAM, ALABAMA 35242 (205) 298-3000 (205) 298-2960 (FAX) (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------- COPIES TO: DAVID N. BROWN, ESQ. M. HILL JEFFRIES, ESQ. COVINGTON & BURLING ALSTON & BIRD LLP 1201 PENNSYLVANIA AVENUE, N.W. 1201 WEST PEACHTREE STREET WASHINGTON, D.C. 20004 ATLANTA, GA 30309-3424 (202) 662-5238 (404) 881-7823 (202) 662-6291 (FAX) (404) 881-4777 (FAX)
------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement. 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. [ ] ------------------------ 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. THE PROSPECTUS THAT IS A PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO AND CONSTITUTES A POST-EFFECTIVE AMENDMENT TO THE REGISTRATION STATEMENT ON FORM S-3 (NO. 33-40284) OF THE REGISTRANT, AND IT IS INTENDED TO BE A COMBINED PROSPECTUS REFERRED TO IN RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 SUBJECT TO COMPLETION. DATED MARCH 29, 1999. $700,000,000 VULCAN MATERIALS COMPANY Debt Securities ------------------------- Vulcan Materials Company may from time to time sell up to $700,000,000 aggregate principal amount of debt securities. We will provide the specific terms of each offering of debt securities in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. ------------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------- This prospectus is dated March , 1999. THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. 3 INFORMATION ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission using a "shelf" registration process. Under this process, we may sell the debt securities described in this prospectus in one or more offerings up to a total principal amount of $700,000,000. This prospectus provides you with a general description of the debt securities we may offer. Each time we offer to sell debt securities, we will provide a supplement to the prospectus that will contain specific information about the terms of that particular offering. The prospectus supplement may also add, update or change information contained in this prospectus. Before you invest, you should read carefully both this prospectus and any prospectus supplement together with the additional information described under the heading "Where You Can Find More Information About Us." WHERE YOU CAN FIND MORE INFORMATION ABOUT US We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You can also read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our common stock is listed on the New York Stock Exchange. You can inspect the reports and other information we file at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. The SEC allows us to "incorporate by reference" into this prospectus information contained in the documents we file with the SEC. This means that we can disclose important information to you by referring you to our SEC filings. The information contained in our SEC filings is an important part of this prospectus. Because this information is important, you should read it before you invest in any debt securities. We are incorporating by reference the following documents which we have filed with the SEC (file number 1-4033): 1. Our annual report on Form 10-K for the year ended December 31, 1998; and 2. Our current reports on Form 8-K dated January 6, 1999 (as amended March 19, 1999), January 19, 1999 and February 11, 1999. We are also incorporating into this prospectus any documents that we file with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and until we sell all the debt securities. Information contained in the documents that we file later with the SEC will automatically update and supersede the information contained in this prospectus or in the documents listed above. As a result, before you invest in any debt securities, you should read all of the filings that we make with the SEC after March 29, 1999. i 4 You may request a copy of these SEC filings, at no cost, by writing or calling: William F. Denson, III Senior Vice President-Law and Secretary Vulcan Materials Company 1200 Urban Center Drive Birmingham, Alabama 35242 Telephone: (205) 298-3000 You should rely only on the information that we incorporate by reference or provide in this prospectus, any prospectus supplement and any pricing supplement. We have not authorized anyone to give you different information. ii 5 SUMMARY INFORMATION ABOUT VULCAN MATERIALS COMPANY We are principally engaged in the production, distribution and sale of construction materials and industrial and specialty chemicals. We are the largest producer of construction aggregates in the United States and are one of the nation's leading producers of chemicals. We have our own operations, and we also operate though subsidiaries. Our principal executive offices are located at 1200 Urban Center Drive, Birmingham, Alabama 35242, and our telephone number is (205) 298-3000. A more detailed description of our business and our subsidiaries is contained in the documents that we have incorporated by reference in this prospectus, which are listed under the heading "Where You Can Find More Information About Us." USE OF PROCEEDS FROM THE SALE OF DEBT SECURITIES Unless we inform you otherwise in the applicable prospectus supplement, we will use the net proceeds that we receive from the sale of the debt securities for general corporate purposes. General corporate purposes may include: - working capital; - capital expenditures; - acquisitions of, or investments in, businesses and assets; - repurchase of our common stock; and - redemption or repayment of our indebtedness. We have not allocated a specific portion of the net proceeds for any particular use at this time. Until we apply the net proceeds of any sale of debt securities for specific purposes, we may invest the net proceeds of any sale in short-term marketable securities. RATIO OF EARNINGS TO FIXED CHARGES Our ability to generate earnings to pay our fixed charges is shown below. These computations include us and our subsidiaries.
YEAR ENDED DECEMBER 31, ----------------------------------- 1998 1997 1996 1995 1994 ---- ---- ---- ---- ---- Ratio of Earnings to Fixed Charges........... 18.9 17.8 16.0 13.3 7.9
We have computed our ratio of earnings to fixed charges for each period by dividing earnings by fixed charges for that period. For purposes of these computations, we calculated "earnings" by adding our pre-tax income, our fixed charges and the amount we amortize for capitalized interest, and we then subtracted the credits we take for capitalized interest. We determined "fixed charges" by adding the interest we pay on our indebtedness, one-third of all our rental expenses, and the amount we amortize for debt financing costs. One-third of all our rental expenses is the approximate portion that represents interest. 6 FINANCIAL INFORMATION GIVING EFFECT TO STOCK SPLIT On February 12, 1999, our board of directors approved an increase in our authorized common stock from 160 million shares to 480 million shares and a three-for-one stock split of our common stock. The stock split became effective on March 10, 1999. We have set forth below financial data related to our common stock, for the time periods set forth below, which is restated to give effect to the stock split. The financial data for the periods set forth below is based on our audited financial statements.
YEAR ENDED DECEMBER 31, ------------------------------------------ 1998 1997 1996 1995 1994 ------ ------ ------ ------ ------ Earnings Per Share: Basic.................................. $ 2.54 $ 2.06 $ 1.81 $ 1.56 $ 0.90 Diluted................................ 2.50 $ 2.03 $ 1.79 $ 1.54 $ 0.89 Weighted Avg Shares Outstanding (in millions): Basic.................................. 100.9 101.5 104.3 106.6 109.3 Diluted................................ 102.2 102.8 105.5 107.8 110.0 Cash Dividends Per Share................. $ 0.69 $ 0.63 $ 0.56 $ 0.49 $ 0.44
DESCRIPTION OF THE DEBT SECURITIES We provide information to you about the debt securities in three separate documents that progressively provide more detail: 1. This Prospectus General information that may or may not apply to each series of debt securities. 2. The Prospectus Supplement More specific than the prospectus. To the extent information differs from the prospectus, you should rely on the information in the prospectus supplement. 3. The Pricing Supplement Provides final details about a specific series or tranche of debt securities. To the extent information differs from the prospectus or the prospectus supplement, you should rely on the information in the pricing supplement. ABOUT THE INDENTURE We will issue the debt securities under an indenture dated as of May 1, 1991, between us and Morgan Guaranty Trust Company of New York, as trustee. The Bank of New York is the current trustee under the indenture, replacing Morgan Guaranty. We have summarized selected provisions of the indenture below. This summary is not complete. It does not describe some of the exceptions and qualifications contained in the indenture. We urge you to read the indenture because the indenture, rather than the following summary, defines your rights as a holder of debt securities. The indenture is an exhibit to our registration statement no. 333-68895, related to the debt securities, that we filed with the SEC. You can read and copy the indenture at the SEC's public reference room in Washington, D.C. or we will send you a free copy if you write us or call us at the 2 7 address or phone number listed under "Where You Can Find More Information About Us." In the summary that follows, we have included references to article and section numbers of the indenture so that you can easily locate the provisions that we summarized. BRIEF SUMMARY OF THE INDENTURE The debt securities will be our direct and unsecured obligations and will rank equally with all our other unsecured and unsubordinated indebtedness. The indenture does not limit the amount of debt securities that we may issue. (Section 301). The indenture permits us to issue debt securities in one or more series. Each series of debt securities may have different terms. The particular terms of any series of debt securities will be established by resolution of our board of directors or by a supplemental indenture relating to that series. (Section 301). The prospectus supplement applicable to each series of debt securities will describe the specific terms of the series of debt securities being offered. These terms will include some or all of the following: - the title of the series of debt securities; - the aggregate principal amount of the debt securities we are offering for sale; - the date or dates on which we will pay the principal on the debt securities; - the annual rate or rates, (which may be fixed or variable), or the method used to determine the rate or rates, (including any commodity, commodity index or stock exchange index), at which the debt securities will bear interest and the dates from which any interest will accrue; - the dates on which any interest will be payable; - the currency or currency unit in which the principal of, and the interest or any premium on, the debt securities are payable; - the terms and conditions upon which we may, at our option, redeem the debt securities; - any obligation we have to redeem or repurchase all or some of the debt securities as required by any sinking fund or another similar provision, at the option of a holders of debt securities; - the manner in which the amounts of payment of the principal of, or the interest or any premium on, the debt securities will be determined if these amounts are determined by reference to an index, such as a commodity index, stock exchange index or financial index; - the portion of the principal amount of the debt securities which is due upon acceleration, if it is less than the total principal amount of the debt securities; - any addition to or change in the events of default described in this prospectus or the indenture with respect to any debt securities; 3 8 - any addition to or change in the covenants described in this prospectus or the indenture with respect to any debt securities; - whether the debt securities will be issued in the form of one or more global debt securities; and - any other terms of the debt securities. (Section 301). We may sell debt securities which are due and payable upon acceleration based on an event of default, at a value which is less than their principal amount. These types of debt securities are referred to as original issue discount securities. If we sell them, we will describe in a prospectus supplement the federal income tax and accounting consequences and other special considerations applicable to them. 4 9 RESTRICTIVE COVENANTS We have agreed to restrict our activities, as summarized below, for the benefit of holders of the debt securities. The restrictive covenants summarized in this section will apply to each series of debt securities unless we tell you otherwise in the applicable prospectus supplement. RESTRICTIONS ON SECURED DEBT. We have agreed that we will not, and each of our subsidiaries will not, issue, assume or guarantee any debt secured by a pledge, mortgage or other lien (1) on a principal property owned or leased by us or any subsidiary or (2) on any shares of stock or debt of any subsidiary, unless we secure the debt securities equally and ratably with or prior to the debt secured by the lien. If we secure the debt securities in this manner, we have the option of securing any of our other debt or obligations, or those of any subsidiary, equally and ratably with the debt securities, as long as the other debt or obligations are not subordinate to the debt securities. This covenant has significant exceptions; it does not apply to the following liens: - liens on the property, shares of stock or debt of any corporation existing at the time the corporation becomes our subsidiary; - liens in favor of us or one of our subsidiaries; - liens in favor of U.S. governmental bodies to secure progress, advance or other payments required under any contract or provision of any statute; - liens on property, shares of stock or debt, either: - existing at the time we acquire the property, stock or debt, including acquisition through merger or consolidation; - securing all or part of the cost of acquiring the property, stock or debt or constructing on the property; or - securing debt to finance the purchase price of the property, stock or debt or the cost of constructing on the property that were incurred prior to or at the time the property, stock or debt was acquired or within 120 days after we acquire the property, stock or debt or complete construction on the property; and - any extension, renewal or replacement of the liens described above if the extension, renewal or replacement is limited to the same property, shares or debt that secured the lien that was extended, except that if the debt secured by a lien is increased as a result of the extension, renewal or replacement, we will be required to include the increase when we compute the amount of debt that is subject to this covenant. (Section 1008). In addition, this covenant restricting secured debt does not apply to any debt that either we or any of our subsidiaries issue, assume or guarantee if the total principal amount of the debt, when added to (1) all of the other outstanding debt that this covenant would otherwise restrict, and (2) the total amount of remaining rent, discounted by 10% per year, that we or any subsidiary owes under any lease arising out of a sale and leaseback transaction, is less than or equal to 10% of the combined net tangible assets of us and our subsidiaries. (Section 1008). When we talk about combined net tangible assets, we mean, in general, the aggregate amount of the assets of us and our consolidated subsidiaries after 5 10 deducting (a) all current liabilities and (b) all goodwill, trade names, trademarks, patents, and similar intangible assets. (Section 101). When we talk about a principal property, we mean, in general, any facility that we or any subsidiary leases or owns, together with the land on which the facility is built, which is used primarily for manufacturing or processing and which has a gross book value in excess of 1% of the combined net tangible assets of us and our subsidiaries. (Section 101). LIMITATION ON SALE AND LEASEBACKS. We have agreed that neither we nor any of our subsidiaries will enter into a sale and leaseback transaction related to a principal property which would take effect more than 120 days after the construction and commencement of full operation of the property, except for temporary leases for a term of not more than three years and except for leases between us and a subsidiary or between our subsidiaries, unless one of the following applies: - we or our subsidiary could have incurred debt secured by a lien on the principal property to be leased back in an amount equal to the remaining rent, discounted by 10% per year, for that sale and leaseback transaction, without being required to equally and ratably secure the debt securities as required by the "Restrictions on Secured Debt" covenant described above, or - within 120 days after the sale of transfer, we apply to the retirement of our long-term debt, which is debt with a maturity of a year or more, an amount of cash at least equal to (1) the net proceeds of the sale of the principal property sold and leased back under the sale and leaseback arrangement, or (2) the fair market value of the principal property sold and leased back under the arrangement, whichever is greater. (Section 1009). CONSOLIDATION, MERGER, SALE OF ASSETS We have agreed, for the benefit of the holders of the debt securities, to a covenant restricting our activities in connection with a consolidation, merger or sale of our assets substantially as an entirety. The indenture generally permits us to consolidate with or merge into another entity. It also generally permits us to sell all or substantially all our assets to another entity. We have agreed, however, not to complete a consolidation, merger or sale of our assets as an entirety unless all of the following conditions are met: - the remaining or acquiring entity is a corporation, partnership or trust and it assumes all of our obligations under the indenture, including making all principal, interest and any premium payments, when due, on the debt securities and performing our covenants under the indenture; - immediately after giving effect to the consolidation, merger or sale, no event of default would occur or be continuing; and - if, as a result of the consolidation, merger or sale, our properties or assets would become subject to a mortgage, pledge or other lien that would not be permitted by the indenture, the remaining or acquiring entity will secure the debt securities equally and ratably with or prior to the debt secured by the mortgage, pledge or lien. (Section 801). If we complete a consolidation, merger or sale of assets, we will be released from all our liabilities and obligations under the indenture and the debt securities. In addition, the 6 11 remaining or acquiring corporation will be substituted for us in the indenture with the same effect as if it had been an original party to the indenture. As a result, the remaining or acquiring corporation will be permitted to exercise our rights and powers under the indenture. (Section 802). EVENTS OF DEFAULT Each of the following is an event of default with respect to the debt securities of any series: - our failure to pay interest on the debt securities of that series for a period of 30 days after the interest is due; - our failure to pay the principal of, or any premium on, the debt securities of that series when the principal or premium is due; - our failure to make any sinking fund payment as required by the terms of the debt securities of that series; - our failure to perform or breach of any covenant or warranty in the indenture, other than a covenant or warranty we have included solely for the benefit of another series of debt securities for a period of 60 days after (1) we receive written notice from the trustee or (2) we and the trustee receive written notice from at least 10% of the holders of the debt securities of that series, specifying the default or breach and asking us to remedy it; - events described in the indenture involving our bankruptcy, insolvency or reorganization; and - any other event of default provided for that series of debt securities. (Section 501). If an event of default for any series of debt securities occurs and is continuing, either the trustee or the holders of at least 25% in principal amount of the debt securities of that series is permitted to require us to immediately pay the principal of, and any interest on, the debt securities of that series. The holders of a majority in principal amount of the outstanding debt securities of the series affected by the default may, under the circumstances specified in the indenture, rescind their request to accelerate payment of that series. (Section 502). A holder of a debt security of any series may pursue any remedy under the indenture only if all of the following occur: - the holder gives the trustee written notice of a continuing event of default for that series; - the holders of at least 25% in principal amount of the outstanding debt securities of that series make a written request to the trustee to institute proceedings; - the holder offers the trustee indemnity reasonably satisfactory to the trustee for any expenses or liabilities that the trustee might incur in pursuing the remedy; - the trustee fails to act for a period of 60 days after receiving the notice, request and offer of indemnity described above; and 7 12 - during the 60-day period, the holders of a majority in principal amount of the debt securities do not give the trustee a direction inconsistent with the written request that the trustee institute proceedings. (Section 507). This provision does not, however, affect the right of a holder of a debt security to sue for enforcement of an overdue payment. (Section 509). In most cases, holders of a majority in principal amount of the outstanding debt securities of a series may direct the time, method and place of: - conducting any proceeding for any remedy available to the trustee, or - exercising any trust or power conferred on the trustee with respect to that series. (Section 512). The indenture requires us to file each year with the trustee a statement specifying whether or not we are in default of any of our covenants or obligations under the indenture. (Section 1004). AMENDMENT, SUPPLEMENTATION AND WAIVER OF INDENTURE TERMS As a general rule, we may amend or supplement the indenture if the holders of 66 2/3% in principal amount of the debt securities of all series affected by the amendment or supplement, acting as one class, consent to it. This general rule does not apply if the amendment or supplement would do any of the following, which require the consent of the holders of 100% of the debt securities affected: - change the stated maturity of any debt security; - change the time for payment of interest on any debt security; - reduce the rate of interest on any debt security; - reduce the principal amount of any debt security; - reduce the premium payable on the redemption of the debt security or change the time at which the debt security may or must be redeemed; - make payments on the debt securities payable in currency other than as originally stated in the debt securities; - impair the holder's right to sue to enforce any payment on the debt security after the payment is due; - waive a continuing default or event of default regarding any payment of principal, interest or any premium on the debt securities; or - reduce the percentage in principal amount of debt securities whose holders must consent to an amendment or supplement to the indenture or a waiver of its provisions (Sections 513 and 902). 8 13 We may amend or supplement the indenture or waive any provision of it without the consent of any holders of debt securities: - to cure any ambiguity, omission, defect or inconsistency; - to provide for the assumption of our obligations under the indenture by a successor upon any merger or consolidation or the sale of substantially all our assets; - to add covenants that would benefit the holders of any debt securities; or - to make any change that does not adversely affect any outstanding debt securities of any series in any material respect. The holders of 66 2/3% in principal amount of debt securities of any series may waive, as to that series, the requirement that we comply with the covenants in the indenture summarized above under "Restrictions on Secured Debt" and "Limitations on Sales and Leasebacks." (Section 1010). The holders of a majority in principal amount of the debt securities of any series may waive any other past default under the indenture with respect to that series, except for the following defaults which cannot be waived without the consent of 100% of the holders of debt securities of that series: - a default in the payment of the principal of or any premium or interest on debt securities of that series; and - a default under any covenant or provision of the indenture which cannot be modified or amended without the consent 100% of the holders of the debt securities of that series. (Section 513). DISCHARGE OF OUR OBLIGATIONS THROUGH DEFEASANCE If we irrevocably deposit with the trustee money or government securities in an amount sufficient to pay the principal and interest, and any premium or sinking fund payments, on the debt securities of a series on the scheduled due dates for these payments, then, at our option, either of the following will occur: - we will be discharged from substantially all of our obligations with respect to debt securities of that series and will be deemed to have paid the entire indebtedness represented by the debt securities. This is generally referred to as "legal defeasance." or - we will no longer have any obligation to comply with the restrictive covenants in the indenture summarized above under "Restrictions on Secured Debt," "Limitations on Sale and Leasebacks" and "Consolidation, Merger, Conveyance, Transfer or Lease," in which case any failure on our part to comply with these covenants will not constitute an event of default under the indenture. This is generally referred to as "covenant defeasance." If we discharge our obligations under a series of debt securities in either way, we will still be obligated to register the transfer or exchange of debt securities; replace stolen, lost or mutilated debt securities; and maintain paying agencies for the holders of the debt securities of the series affected. The rights of the holders of debt securities of that series to receive principal, interest, and any premium payments will also survive the discharge, 9 14 except that the holders will have the right to receive payments solely from the trust fund created by our deposit of money or government securities. In order for us to exercise either legal defeasance or covenant defeasance, we need to meet all of the following conditions: - on the date we deposit the money or government securities with the trustee, no event of default with respect to the debt securities of the series discharged would occur or be continuing; - the defeasance will not result in a breach or violation of, or a default under, the indenture or any other agreement or instrument to which we are a party; and - we will be required to deliver to the trustee a legal opinion stating that the holders of the debt securities affected will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance. The legal opinion must also state that the holders will be subject to federal income tax in the same amount, in the same manner and at the same times as would have been the case if the deposit and defeasance had not occurred. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service to that effect. (Sections 1302, 1303, 1304). In addition, if all the debt securities of a series are due and payable within one year or are to be called for redemption within one year, we can be discharged from all our obligations with respect to the debt securities of that series if we irrevocably deposit with the trustee money in an amount sufficient to pay the entire principal amount of the debt securities at maturity or on redemption. (Section 401). If we exercise our option to effect a covenant defeasance with respect to the debt securities of any series and at a later date those debt securities are declared due and payable on an accelerated basis because an event of default occurred regarding a covenant other than the covenants defeased, there may be a shortfall in the amount we owe. If we elect covenant defeasance and payment on the debt securities is accelerated, the amount of money and securities we deposited with the trustee as defeasance related payments may not be sufficient to pay amounts due on the debt securities at the time of their acceleration, even though they would be sufficient to pay amounts due on the debt securities at the time of their stated maturity. In this event, we would remain liable for the payments due upon acceleration. GOVERNING LAW New York law will govern the indenture and the debt securities. (Section 112). REGARDING THE TRUSTEE The trustee is not obligated to exercise its powers under the indenture at the request of any holders of debt securities unless the holders have offered to the trustee reasonably satisfactory indemnity or security against expenses or liabilities which the trustee might incur in complying with the request of the holders. (Sections 603). 10 15 The current trustee, the Bank of New York, provides us with a variety of commercial banking services in the ordinary course of business, including providing demand deposit and custody accounts and providing related cash management services. FORM, EXCHANGE, REGISTRATION AND TRANSFER OF DEBT SECURITIES We will issue the debt securities in registered form, without coupons. We will issue the debt securities in one of the following forms: - in the form of certificates in definitive form, in denominations of $1,000 and multiples of $1,000, registered in the name of the holders of the debt securities. (Section 302); or - in the form of one or more global notes registered in the name of the Depositary Trust Company, New York, New York, or its nominee. If we issue debt securities in the form of a global note, DTC will place the debt securities in book-entry form. When we issue a series of debt securities, we will let you know in the prospectus supplement for the series the form that the debt securities will take. CERTIFICATED DEBT SECURITIES. You may transfer or exchange certificated debt securities at any office we maintain for this purpose. We will not charge a service charge to register the transfer or exchange of debt securities. We may, however, require you to pay any tax or other governmental charge required in connection with the registration. (Section 305). Unless we inform you otherwise in a prospectus supplement, we will make payments on certificated debt securities at the office of the trustee. We will make interest payments to the person in whose name the debt security is registered at the close of business on the record date for interest payment. You may effect the transfer of certificated debt securities only by surrendering the certificate representing those certificated debt securities and having us or the trustee reissue the certificate or issue a new certificate to the new holder. If we call any debt securities for redemption, neither the security registrar nor the transfer agent will be required to register the transfer or exchange of any debt security either: (1) during a period beginning 15 days prior to the mailing of the relevant notice of redemption and ending at the close of business on the day of mailing of the notice, or (2) after the notice of redemption is mailed, except that if a debt security is being redeemed in part, we will register the transfer and exchange of the unredeemed portion of the debt security. (Section 305). GLOBAL DEBT SECURITIES AND THE BOOK ENTRY SYSTEM. If we issue debt securities in the form of one or more global notes, each global note will be registered in the name of, and deposited with, DTC or its nominee. DTC was created to hold securities deposited by its participating organizations, such as brokers or underwriters, so that its participants could clear and settle securities transactions between each other though electronic computerized book-entry changes in their accounts rather than by physically exchanging securities certificates. This book-entry system eliminates the need to physically transfer certificates to register transfers, pledges or other transactions. Participants in DTC include securities brokers and dealers (including any underwriters of the debt securities), banks, trust 11 16 companies, and clearing corporations. Non-participants, such as securities brokers and dealers, banks and trust companies, can beneficially own securities held by DTC only though a participant. The rules that apply to DTC and its participants are on file with the SEC. If we issue a global note to DTC, we will not issue certificates to each holder. Instead, DTC will keep a computerized record of its participants whose clients have purchased beneficial ownership of the debt securities represented by the global note. Likewise, DTC's participants will keep a record of their clients. When we issue a global note, DTC will credit the computerized accounts of its participants with the respective portion of the principal amount of the global note that each participant beneficially owns. The underwriters, dealers or agents distributing the debt securities will designate which accounts to credit. DTC's computerized records will show beneficial ownership of a global note by participants, and the computerized records of participants will show beneficial ownership of a global note by persons who beneficially own debt securities through participants. So long as DTC or its nominee is the registered owner of a global note, we will consider DTC or its nominee to be the sole owner or holder of the debt securities represented by the global note for all purposes under the indenture. As a result, except as set forth below, owners of beneficial interests in a global note: - will not be entitled to have the debt securities represented by the global note registered in their names; - will not receive or be entitled to receive physical delivery of a certificate in definitive form representing the debt securities; and - will not be considered the owners or holders of the debt securities under the indenture. As a result, any participant with DTC which owns a beneficial interest in a global note will be dependent on DTC's procedures, and any person who is not a participant with DTC will be dependent on its participant's procedures, to exercise any of the rights of a holder of debt securities under the indenture. We understand, however, that under DTC's usual practice, neither DTC nor its nominee will consent or vote with respect to the debt securities. Instead, when a vote or consent is required, DTC mails a proxy to the issuer as soon as possible after the record date for the vote or consent. The proxy assigns DTC's or its nominee's consenting or voting right to those participants of DTC who beneficially own the debt securities, as shown on the accounts of DTC as of the record date. The Company is permitted under the indenture to give effect to these proxies. (Section 308). We will wire principal and interest payments to DTC or its nominee. We and the trustee will treat DTC or its nominee as the owner of the global notes for all purposes. Accordingly, we, the trustee and any paying agent will have no direct responsibility or liability to pay amounts due on the global notes to owners of beneficial interests in the global notes. Consistent with DTC's current practice, we expect that immediately after DTC receives a principal, interest or premium payment from us, DTC will credit participants' accounts with payments in amounts proportionate to their respective holdings of beneficial interests in the global notes as shown on DTC's records. However, making 12 17 sure than payments are passed-through to beneficial owners of a global note will be the sole responsibility of the participants and not of DTC, the trustee or us. DTC is owned by a number of its participants and by the New York Stock Exchange, the American Stock Exchange, and the National Association of Securities Dealers, Inc. DTC has informed us that it is: - a limited-purpose trust company organized under the New York Banking Law; - a "banking organization" within the meaning of the New York Banking Law; - a member of the United States Federal Reserve System; - a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and - a "clearing agency" registered under the provisions of Section 17A of the Securities Exchange Act. We will provide certificated notes in definitive form in exchange for a global note only if: - DTC notifies us that it is unwilling or unable to continue as depositary; - DTC ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by us within 90 days; or - we determine not to require all of the debt securities of a series to be represented by a global note. If we issue debt securities in definitive form in exchange for a global security, an owner of a beneficial interest in the global security will be entitled to have debt securities equal in principal amount to the beneficial interest registered in its name and will be entitled to physical delivery of its debt securities in definitive form. (Section 305). DISTRIBUTION OF THE DEBT SECURITIES We may sell debt securities through agents, underwriters or dealers, or directly to one or more purchasers. AGENTS We may sell debt securities through agents designated by us from time to time. We will name any agent involved in the offer or sale of debt securities and will list commissions payable by us to these agents in the applicable prospectus supplement. These agents will be acting on a best efforts basis to solicit purchases for the period of their appointment, unless we state otherwise in the prospectus supplement. UNDERWRITERS If we use underwriters for a sale of debt securities, the underwriters will acquire the debt securities for their own account. The underwriters may resell the debt securities from 13 18 time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The underwriters will be obligated to purchase all of the debt securities of the series offered if any of the debt securities of that series are purchased. Underwriters may be deemed to have received compensation from us in the form of underwriting discounts or commissions and may also receive commissions from the purchasers of debt securities for whom they may act as agent. Underwriters may sell debt securities to or through dealers. These dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. We will identify any underwriters or dealers involved in the offer or sale of debt securities and describe their compensation in the applicable prospectus supplement. DELAYED DELIVERY We may authorize underwriters, dealers or agents to solicit offers by institutions to purchase debt securities from us at the public offering price stated in the applicable prospectus supplement under delayed delivery contracts providing for the payment and delivery on a specified date in the future. If we sell debt securities under these delayed delivery contracts, the applicable prospectus supplement will state that as well as the conditions to which these delayed delivery contracts will be subject and the commissions payable for that solicitation. DIRECT SALES We may sell debt securities directly to one or more purchasers. In this case, we will not engage underwriters or agents in the offer and sale of debt securities. INDEMNIFICATION OF, AND ORDINARY TRANSACTIONS WITH, UNDERWRITERS, DEALERS AND AGENTS We may have agreements with the underwriters, dealers or agents who participate in the distribution of debt securities to indemnify them against some types of liabilities, including liabilities under the Securities Act, and to contribute to payments which these underwriters, dealers or agents may be required to make. Underwriters, dealers and agents may engage in transactions with, or perform services for, us or our subsidiaries in the ordinary course of their business. NO ASSURANCE OF LIQUID MARKET Each series of debt securities will be a new issue of securities with no established trading market. We cannot assure you that there will be liquidity in the trading market for any debt securities we issue. 14 19 STABILIZATION AND PENALTY BIDS Until the distribution of the debt securities is completed, rules of the SEC may limit the ability of underwriters and some selling group members to bid for and purchase the debt securities. As an exception to these rules, underwriters are permitted to engage in transactions that stabilize the price of the debt securities. These transactions include bids or purchases for the purpose of pegging, fixing or maintaining the price of the debt securities. If any underwriters create a short position in the debt securities in connection with an offering, i.e., if they sell more debt securities than are set forth in the cover page of the applicable prospectus supplement, the underwriters may reduce that short position by purchasing debt securities in the open market. Underwriters may also impose a penalty bid on some of the selling group members. This means that if the underwriters purchase debt securities in the open market to reduce the underwriters' short position or to stabilize the price of the debt securities, they may reclaim the amount of the selling concession from the selling group members who sold those debt securities as part of the offering. In general, purchases of a security for the purpose of stabilization or to reduce a short position could cause the price of the security to be higher than it might be in the market if these purchases did not occur. The imposition of a penalty bid might also have an effect on the price of the debt securities to the extent that it discourages resales of the debt securities. Neither we nor the underwriters are making any representations or predictions regarding the direction or size of any effect that the transactions described above may have on the price of the debt securities. The underwriters are not required to engage in any of the transactions described above, and if the underwriters engage in any of these market-making activities, they may discontinue them at any time without notice. LEGAL OPINION REGARDING THE DEBT SECURITIES William F. Denson, III, our Senior Vice President-Law and Secretary, will issue a legal opinion on our behalf about the validity of the debt securities offered by this prospectus. As of February 28, 1999, after giving effect to our 3-for-1 stock split which was effected on March 10, 1999, Mr. Denson beneficially owned 24,003 shares of our common stock, held awards of 10,890 shares of our common stock under a long-range performance share plan, held stock options for the purchase of 77,775 shares of our common stock under a long-term incentive plan, and held 31,905 shares of our common stock under a thrift plan for salaried employees. Covington & Burling, Washington, DC, advises us, and Alston & Bird LLP, Atlanta, Georgia, advises the underwriters and agents, with regard to various matters related to the debt securities and this prospectus. Alston & Bird LLP also acts as our counsel from time to time in various matters. 15 20 EXPERTS The consolidated financial statements and the related financial statement schedule incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended December 31, 1998, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their reports, which are incorporated in this prospectus by reference, and have been so incorporated in reliance upon the reports of Deloitte & Touche LLP given upon their authority as experts in accounting and auditing. The consolidated financial statements of CalMat Co. and subsidiaries as of December 31, 1998 and 1997 and for each for the three years in the period ended December 31, 1998, incorporated in this prospectus by reference from our current report on Form 8-K/A dated January 6, 1999 and filed March 19, 1999, have been incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of that firm as experts in accounting and auditing. 16 21 - ------------------------------------------------------ - ------------------------------------------------------ You should rely only on the information that we incorporate by reference or provide in this Prospectus, any Prospectus Supplement and any Pricing Supplement. We have not authorized anyone else, including any underwriter, dealer or salesperson, to give you different information. If anyone else gives you different information, you should not rely on it. This Prospectus does not offer to sell debt securities in any circumstance or in any place where it would be unlawful. You should not assume that the information in this Prospectus, any Prospectus Supplement or any Pricing Supplement is accurate as of any date other than the date on the front of those documents, regardless of when this Prospectus, any Prospectus Supplement or any Pricing Supplement is delivered or any Debt Securities are sold. TABLE OF CONTENTS
PAGE ---- Information About this Prospectus... i Where You Can Find More Information About Us.......................... i Summary Information About Vulcan Materials Company................. 1 Use of Proceeds from the Sale of Debt Securities................... 1 Ratio of Earnings to Fixed Charges........................... 1 Financial Information Giving Effect to Stock Split.................... 2 Description of the Debt Securities........................ 2 About the Indenture................. 2 Brief Summary of the Indenture...... 3 Restrictive Covenants............... 5 Consolidation, Merger, Sale of Assets............................ 6 Events of Default................... 7 Amendment, Supplementation and Waiver of Indenture Terms......... 8 Discharge of Our Obligations Through Defeasance........................ 9 Governing Law....................... 10 Regarding the Trustee............... 10 Form, Exchange, Registration and Transfer of Debt Securities....... 11 Distribution of the Debt Securities........................ 13 Agents.............................. 13 Underwriters........................ 13 Delayed Delivery.................... 14 Direct Sales........................ 14 Indemnification of, and Ordinary Transactions with, Underwriters, Dealers and Agents................ 14 No Assurance of Liquid Market....... 14 Stabilization and Penalty Bids...... 15 Legal Opinion Regarding the Debt Securities........................ 15 Experts............................. 16
- ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ - ------------------------------------------------------ $700,000,000 VULCAN MATERIALS COMPANY Debt Securities ------------------------ PROSPECTUS ------------------------ March , 1999 - ------------------------------------------------------ - ------------------------------------------------------ 22 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth the expenses in connection with the issuance and distribution of the securities being registered pursuant to this registration statement, other than underwriting compensation. All amounts except for the Securities and Exchange Commission Filing Fee are estimated:
Securities and Exchange Commission Filing Fee............... $194,600 Accounting Fees and Expenses................................ 50,000 Trustee's Fees and Expenses (including counsel fees)........ 20,000 Legal Fees and Expenses..................................... 50,000 Rating Agency Fees.......................................... 215,000 Printing and Engraving Fees................................. 40,000 Miscellaneous............................................... 10,400 -------- Total..................................................... $580,000 ========
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"). II-1 23 (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 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. II-2 24 The Company maintains directors and officers liability insurance which insures against liabilities that directors and officers of the Company may incur in such capacities. ITEM 16. EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - ------- ---------------------- 1 -- Form of Underwriting Agreement.*** 4 -- Indenture dated as of May 1, 1991 between Vulcan Materials Company and Morgan Guaranty Trust Company of New York, is hereby incorporated by reference to Exhibit 4(a) to the Registrant's Current Report on Form 8-K dated May 14, 1991 (File no. 1-4033). 5 -- Opinion and Consent of William F. Denson, III, Senior Vice President -- Law and Secretary of the Registrant, regarding the Debt Securities.* 8 -- Opinion and Consent of as to certain federal income tax matters.** 12 -- Computation of Ratios of Earnings to Fixed Charges.*** 23.1 -- Consent of Deloitte & Touche LLP.*** 23.2 -- Consent of Counsel -- included in Exhibit 5.* 23.3 -- Consent of Counsel -- included in Exhibit 8.** 23.4 -- Consent of PricewaterhouseCoopers LLP*** 24 -- Powers of Attorney.* 24.1 -- Power of Attorney for A. Frederick Gerstell* 25 -- Form T-1 Statement of Eligibility and Qualification Under the Trust Indenture Act of 1939 of the Bank of New York.*
- ------------------------- * Previously filed. Supplements to such exhibits may be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of debt securities. ** To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of debt securities. *** Filed herewith. ITEM 17. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (a)(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 volume of securities offered (if the total dollar value of II-3 25 securities offered would not exceed that which was registered) and any deviation from the low or high end 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 a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (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) 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 Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") 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 the time shall be deemed to be the 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. (b) 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 Section 15(d) of the Exchange Act 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 to be the initial bona fide offering thereof. (c) 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. (d)(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities II-4 26 Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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 the initial bona fide offering thereof. II-5 27 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 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Birmingham, State of Alabama, on the 29th day of March 1999. VULCAN MATERIALS COMPANY (Registrant) By: /s/ DONALD M. JAMES ----------------------------------- Donald M. James Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 29th day of March 1999.
SIGNATURES TITLE ---------- ----- /s/ D. M. JAMES Chairman, Chief Executive Officer and - --------------------------------------------------- Director (Principal Executive D.M. James Officer) /s/ P. J. CLEMENS, III Executive Vice President, Finance and - --------------------------------------------------- Administration and Treasurer P.J. Clemens, III (Principal Financial Officer) /s/ E.A. KHAN Vice President and Controller - --------------------------------------------------- (Principal Accounting Officer) E.A. Khan The following directors: * Director - --------------------------------------------------- Marion H. Antonini * Director - --------------------------------------------------- Livio D. Desimone * Director - --------------------------------------------------- A. Frederick Gerstell * Director - --------------------------------------------------- John K. Greene * Director - --------------------------------------------------- Douglas J. McGregor
II-6 28
SIGNATURES TITLE ---------- ----- * Director - --------------------------------------------------- Ann D. McLaughlin * Director - --------------------------------------------------- James V. Napier * Director - --------------------------------------------------- Donald B. Rice * Director - --------------------------------------------------- Herbert A. Sklenar * Director - --------------------------------------------------- Orin R. Smith *By: /s/ WILLIAM F. DENSON, III ---------------------------------------------- William F. Denson, III Attorney-in-Fact for each of the ten directors listed above
II-7 29
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT - ------- ---------------------- 1 -- Form of Underwriting Agreement*** 4 -- Indenture dated as of May 1, 1991 between Vulcan Materials Company and Morgan Guaranty Trust Company of New York, is hereby incorporated by reference to Exhibit 4(a) to the Registrant's Current Report on Form 8-K dated May 14, 1991 (file No. 1-4033). 5 -- Opinion and Consent of William F. Denson, III, Senior Vice President-Law and Secretary of the Registrant, regarding the Debt Securities.* 8 -- Opinion and Consent of as to certain federal income tax matters.** 12 -- Computation of Ratios of Earnings to Fixed Charges.*** 23.1 -- Consent of Deloitte & Touche LLP.*** 23.2 -- Consent of Counsel -- included in Exhibit 5.* 23.3 -- Consent of Counsel -- included in Exhibit 8.** 23.4 -- Consent of PricewaterhouseCoopers LLP*** 24 -- Powers of Attorney.* 24.1 -- Power of Attorney for A. Frederick Gerstell* 25 -- Form T-1 Statement of Eligibility and Qualification Under the Trust Indenture Act of 1939 of the Bank of New York.*
- ------------------------- * Previously filed. Supplements to such exhibits may be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of debt securities. ** To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of debt securities. *** Filed herewith. EX-1 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1 VULCAN MATERIALS COMPANY DEBT SECURITIES ------------------- FORM OF UNDERWRITING AGREEMENT , 1999 ----------------- GOLDMAN, SACHS & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED CREDIT SUISSE FIRST BOSTON CORPORATION MORGAN STANLEY & CO. INCORPORATED C/O GOLDMAN, SACHS & CO. 85 BROAD STREET NEW YORK, NEW YORK 10004 Ladies and Gentlemen: From time to time Vulcan Materials Company, a New Jersey corporation (the "Company"), proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities (the "Securities") specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the "Designated Securities"). The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the "Indenture") identified in such Pricing Agreement. 1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (the "Representatives"). The term "Representatives" also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives. This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated 2 Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. 2. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933, as amended (the "Act"), and has filed two registration statements on Form S-3 (File Nos. 33-40284 and 333-68895) (the "Initial Registration Statements") in respect of the Securities with the Securities and Exchange Commission (the "Commission"); the Initial Registration Statements and any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to the Representatives, including exhibits to the Initial Registration Statements and all documents incorporated by reference in the prospectus contained in the latest registration statement, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a "Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under the Act, which became effective upon filing, no other document with respect to the Initial Registration Statements or document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission (other than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act, each in the form heretofore delivered to the Representatives); and no stop order suspending the effectiveness of any Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose is pending before, or to the knowledge of the Company has been threatened by, the Commission (any preliminary prospectus included in the Initial Registration Statement (File No. 333-68895) or filed with the Commission with respect to such Initial Registration Statement pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary Prospectus"; the various parts of the Initial Registration Statements, any post-effective amendment thereto and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in the Initial Registration Statement (File No. 333-68895) at the time such part of the Initial Registration Statements became effective but excluding Form T-1, each as amended at the time such part of the Initial Registration Statements became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the "Registration Statement"; provided, however, that subsequent to the issue and sale, pursuant to this Agreement and one or more related Pricing Agreements, of Securities in the aggregate principal amount of $119,000,000 (which equals the principal amount of Securities that remain registered but unissued under Registration 2 3 Statement No. 33-40284), the term "Registration Statement" shall refer to Registration Statement No. 333-68895, including all exhibits thereto but excluding Form T-1; the prospectus relating to the Securities, in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, being hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to an Initial Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act after the effective date of such Initial Registration Statement that is incorporated by reference in the Registration Statement; and any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof, including any documents incorporated by reference therein as of the date of such filing); (b) The documents incorporated by reference in 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 rules and regulations of the Commission thereunder, and none of such documents, when they became effective or were filed with the Commission, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the 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 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 of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities or to any statements in or omissions from the Statement of Eligibility of the Trustee under the Indenture; (c) The Registration Statement and the Prospectus conform, and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Act; and the Indenture complies, and any further amendments or supplements to the Indenture pursuant to 3 4 which Designated Securities will be issued will comply as of the applicable filing date of the Prospectus, with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission thereunder; and the Registration Statement and the Prospectus do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto 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 of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities or to any statements in or omissions from the Statement of Eligibility of the Trustee under the Indenture; (d) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in 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 Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) or any material adverse change, or any development involving a prospective material adverse change, in or affecting the current or future general affairs, 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 Prospectus; (e) 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 Prospectus; (f) The Company has an authorized capitalization as set forth in 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; (g) The Securities have been duly authorized, and, when Designated Securities are issued, authenticated, and delivered to, and paid for by, the Underwriters of such Designated Securities pursuant to the Indenture, this Agreement and the Pricing Agreement with respect to such Designated Securities, such Designated Securities 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 Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement; the Indenture has been duly authorized and duly qualified under the Trust Indenture Act and, at the Time of Delivery for such Designated Securities (as defined in Section 4 hereof), the Indenture will constitute a valid and legally binding instrument, 4 5 enforceable in accordance with its terms, except as (i) the enforceability thereof 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; and the Indenture conforms, and the Designated Securities will conform, to the descriptions thereof contained in the Prospectus as amended or supplemented with respect to such Designated Securities; (h) The issue and sale of the Securities, the compliance by the Company with all of the provisions of the Securities, the Indenture, this Agreement and any Pricing 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 on the current or future consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole (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 or 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; 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 any Pricing 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; (i) The statements set forth in the Prospectus under the captions "Description of Debt Securities" and "Description of the Notes", insofar as they purport to constitute a summary of the terms of the Securities, and under the caption "Plan of Distribution," insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and fair in all material respects; (j) Neither the Company nor any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) is in violation of its Certificate of Incorporation or By-laws or in default in the performance or observance of any obligation, agreement, 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; 5 6 (k) Other than as set forth in 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 taken as a whole, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, or consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries; and, to the best of the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (l) The Company is not and, after giving effect to the offering and sale of the Securities, will not be an "investment company", as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"); (m) Deloitte & Touche LLP, who have certified certain financial statements of the Company and its subsidiaries included or incorporated by reference in each Registration Statement and the Prospectus, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder; (n) The Company and its 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 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 the Company and its subsidiaries use or occupy their leased properties under valid and binding leases; (o) Other than as set forth in the Prospectus, the property, assets and operations of the Company and its 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 on the current or future general affairs, management, or consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole; to the knowledge of the Company, none of the property, assets or operations of the Company and its 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 on the current or future general affairs, management, or consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries taken as a whole; neither the Company nor any subsidiary has received any notice or claim, nor are there pending or, to the Company's 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; and neither the Company nor any subsidiary has any material contingent liability in connection with any release of Hazardous Material into the environment; and 6 7 (p) The business systems of the Company and its subsidiaries, including all computer hardware and software, are, or will be by January 1, 2000, Year 2000 Compliant (as defined below) or the failure of such systems to be Year 2000 Compliant would not have a Material Adverse Effect. Based on information provided to the Company by selected suppliers and customers with which the Company and its subsidiaries have a material relationship, the Company believes that the business systems of all third parties with which the Company and its subsidiaries have a material relationship are, or will be by January 1, 2000, Year 2000 Compliant or that the failure of the business systems of any such third parties to be Year 2000 Compliant would not have a Material Adverse Effect. The term "Year 2000 Compliant" means that the system in question (the "System"): (i) will correctly and unambiguously process date information at all times, including as the years 1999 and 2000 are approached and reached; and (ii) will not suffer any abends, aborts, improper operation or other interruptions in operation as a result of the approach or reaching of any particular date or the improper processing of any date. "Processing" of date information includes, but is not limited to, accepting input of dates without ambiguity, outputting all dates in an unambiguous form, and performing calculations, comparisons or operations or taking actions or making decisions using dates, portions of dates, or time periods. The concept of Year 2000 Compliance includes all issues relating to the handling of dates or time periods, including the processing of the leap year that will occur in the year 2000. 3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus as amended or supplemented and in this Agreement and the applicable Pricing Agreement, and, in connection with such offer or the sale of such Designated Securities, will use the Prospectus as amended or supplemented, in the form which has been most recently distributed to them by the Company and only as permitted or contemplated thereby, and will offer and sell such Designated Securities only as permitted by the Act and the applicable securities laws or regulations of any jurisdiction. 4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf 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 forty-eight hours in advance or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the "Time of Delivery" for such Securities. 5. The Company agrees with each of the Underwriters of any Designated Securities: (a) To prepare the Prospectus as amended or supplemented in relation to the applicable Designated Securities in a form approved by the Representatives (which approval shall not be unreasonably withheld) and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the 7 8 second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Pricing Agreement relating to such Securities and prior to the Time of Delivery for such Securities which shall be disapproved by the Representatives in their reasonable judgment for such Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly 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 for so long as the delivery of a prospectus is required in connection with the offering or sale of such Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Securities, of the suspension of the qualification of such 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 Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; (b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws 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 such Securities, 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; (c) Prior to 12:00 noon, New York City time, on the Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with copies of the Prospectus in New York City as amended or supplemented in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus is required by law at any time 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 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 the Representatives and upon their request to file such document and to 8 9 prepare and furnish without charge to each Underwriter and to any dealer who has offered or sold the Securities as many copies as the Representatives 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; (d) To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen 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); (e) During the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to and including the later of (i) the termination of trading restrictions for such Designated Securities, as notified to the Company by the Representatives and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives; and (f) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act. 6. 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 Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary 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, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda, 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 securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and Legal Investment Memoranda; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in 9 10 this Section. It is understood, however, that, except as provided in this Section and Sections 8 and 11 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. 7. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, 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 as amended or supplemented in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) 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; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; 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 pending before, or to the knowledge of the Company threatened by, the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction; (b) Counsel for the Underwriters shall have furnished to the Representatives a written opinion or opinions (a draft of each such opinion is attached as Annex II(a) hereto), dated the Time of Delivery for such Designated Securities, substantially to the effect set forth in paragraphs (i), (ii), (iv), (v), (vi), (xi), (xiii) and (xiv) of subsection (c) below as well as such other related matters as the Representatives may reasonably request; such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; and such counsel, in rendering any opinion as to matters governed by the laws of states other than those in which such counsel is licensed to practice, may rely on the opinion of counsel to the Company, the opinion of counsel licensed to practice in such state, or certificates of public officials in such state; (c) Counsel for the Company satisfactory to the Representatives shall have furnished to the Representatives a written opinion or opinions (a draft of each such opinion is attached as Annex II(b) hereto), dated the Time of Delivery for such Designated Securities, in form and substance reasonably satisfactory to the Representatives and stating that such opinion may be relied upon by counsel to the Underwriters, to the effect that: (i) 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 Prospectus as amended or supplemented; (ii) The Company has an authorized capitalization as set forth in the Prospectus as amended or supplemented; 10 11 (iii) Other than as set forth in 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 such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (iv) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company; (v) The Designated Securities have been duly authorized and, when duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will constitute legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as (i) the enforceability thereof 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; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus as amended or supplemented; (vi) The Indenture has been duly authorized by the Company and executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as (i) the enforceability thereof 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; (vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of the provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company 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 actions result in any violation of the provisions of the Certificate of Incorporation or By-Laws of the Company or 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 properties, except for such violations that would not individually or in the aggregate have a Material Adverse Effect; 11 12 (viii) No 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 Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or such Pricing Agreement or the Indenture, except such which if not obtained would not have a Material Adverse Effect, such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters; (ix) Neither the Company nor any of its subsidiaries is in violation of its Certificate of Incorporation or By-Laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other 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; (x) To such counsel's knowledge, the property, assets and operations of the Company and its subsidiaries comply in all material respects with all applicable 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 such counsel, other than as set forth in the prospectus, none of the property, assets or operations of the Company and its 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 Hazardous Material or is in contravention of any Environmental Law that would have a material adverse effect on the current or future general affairs, management, or consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries; and, other than as set forth in the Prospectus, neither the Company nor any subsidiary has received any notice or claim, nor are there pending or, to such counsel's 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; (xi) The statements set forth in the Prospectus under the captions "Description of Debt Securities" and "Description of the Notes," insofar as they purport to constitute a summary of the terms of the Securities, and under the caption "Plan of Distribution," insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate and fair in all material respects; (xii) The Company is not an "investment company", as such term is defined in the Investment Company Act; In addition to the matters set forth above, such written opinion shall also include a statement, in form and substance satisfactory to the Representatives, to the effect set forth in the following paragraphs (xiii) and (xiv): 12 13 (xiii) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; the Indenture has been qualified under the Trust Indenture Act; and (xiv) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the Time of Delivery for the Designated Securities (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; although such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, except for those referred to in the opinion in subsection (xi) of this Section 7(c), such counsel has not been presented with facts that would lead him to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that, as of its date, the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading or that, as of the Time of Delivery, either the Registration Statement or the Prospectus as amended or supplemented or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were 13 14 made, not misleading; and such counsel does not know of any amendment to the Registration Statement required to be filed or any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are not filed or incorporated by reference or described as required; The opinions in paragraphs (i), (ii), (iv), (v) (except as to the conformity of the descriptions of the Designated Securities and the Indenture contained in the Prospectus) and (vi), and (viii) with respect to the laws of the State of New Jersey, shall be furnished by counsel for the Company that is licensed to practice law in the State of New Jersey. (d) On the date of the Pricing Agreement for such Designated Securities at a time prior to the execution of the Pricing Agreement with respect to such Designated Securities and at the Time of Delivery for such Designated Securities, the independent accountants of the Company who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representatives a letter, dated the effective date of the Registration Statement or the date of the most recent report filed with the Commission containing financial statements and incorporated by reference in the Registration Statement, if the date of such report is later than such effective date, and a letter dated such Time of Delivery, respectively, to the effect set forth in Annex III hereto, and with respect to such letter dated such Time of Delivery, as to such other matters as the Representatives may reasonably request and in form and substance reasonably satisfactory to the Representatives (the executed copy of the letter delivered prior to the execution of this Agreement is attached as Annex III(a) hereto and a draft of the form of letter to be delivered on the effective date of any post-effective amendment to the Registration Statement and as of each Time of Delivery is attached as Annex III(b) hereto); (e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus as amended prior to the date of the Pricing Agreement relating to the Designated Securities 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, otherwise than as set forth or contemplated in the Prospectus as amended prior to the date of the Pricing Agreement relating to the Designated Securities, and (ii) since the respective dates as of which information is given in the Prospectus as amended prior to the date of the Pricing Agreement relating to the Designated Securities there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the current or future general affairs, management, or consolidated financial position, shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus as amended prior to the date of the Pricing Agreement relating to the Designated Securities, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives so material and adverse to the current or future consolidated financial position, shareholder's equity or results of operations of the Company and its subsidiaries 14 15 taken as a whole as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as first amended or supplemented relating to the Designated Securities; (f) On or after the date of the Pricing Agreement relating to the Designated Securities (i) no downgrading shall have occurred in the rating accorded the Company's debt securities or preferred stock 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 Company's debt securities or preferred stock; (g) On or after the date of the Pricing Agreement relating to the Designated Securities 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 Company's securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal, New York, Alabama or Georgia State authorities; or (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iv) in the reasonable judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented relating to the Designated Securities; (h) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Company satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as the Representatives may reasonably request. 8. (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 any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any amendment or supplement thereto, 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 expenses; 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 any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any such amendment 15 16 or supplement in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Securities. (b) Each Underwriter will severally 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 any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any amendment or supplement thereto, 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 any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus as amended or supplemented and any other prospectus relating to the Securities, or any such amendment or supplement 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. In case any such action 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), and, after 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. 16 17 (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) 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 of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed 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 of the Designated Securities 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 such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters. 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 such 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 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 applicable Designated 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 obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint. (e) The obligations of the Company under this Section 8 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 the obligations of the Underwriters under this Section 8 shall be in addition to any liability 17 18 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. 9. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated 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 the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities 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 as amended or supplemented, 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 the opinion of the Representatives 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 the Pricing Agreement with respect to such Designated Securities. (b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated 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. (c) If, after giving effect to any arrangements made by the Representatives and the Company as provided in subsection (a) above for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the 18 19 expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. 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. 11. If any Pricing Agreement shall be terminated pursuant to Section 9 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities covered by such Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if for any other reason Designated Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Sections 6 and 8 hereof. 12. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such 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 such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. 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 the address of the Representatives as set forth in the Pricing Agreement; 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 8(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 the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 8 and 10 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 or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 19 20 14. Time shall be of the essence of each Pricing Agreement. As used herein, "Business Day" shall mean any day when commercial banks in New York City are open for business. 15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 16. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto 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. 17. The headings herein are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement. IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING, PLEASE SIGN AND RETURN TO US SEVEN COUNTERPARTS HEREOF. Very truly yours, VULCAN MATERIALS COMPANY By: ---------------------------- Name: Title: Accepted as of the date hereof: GOLDMAN, SACHS & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED CREDIT SUISSE FIRST BOSTON CORPORATION MORGAN STANLEY & CO. INCORPORATED BY: ------------------------------------------------- (GOLDMAN, SACHS & CO.) On behalf of each of the Underwriters 20 21 ANNEX I PRICING AGREEMENT [GOLDMAN, SACHS & CO. [NAMES OF CO-REPRESENTATIVE(S)] 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 and in the Underwriting Agreement, dated ___________, 1999 (the "Underwriting Agreement"), between the Company on the one hand and Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, CS First Boston Corporation and Morgan Stanley & Co. Incorporated on the other hand, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined) and also a representation and warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you, is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in 22 Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us [ONE FOR THE COMPANY AND EACH OF THE REPRESENTATIVES PLUS ONE FOR EACH COUNSEL] counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, 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 or will be 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 the part of the Representatives as to the authority of the signers thereof. Very truly yours, VULCAN MATERIALS COMPANY By: --------------------------- Name: Title: Accepted as of the date hereof: [GOLDMAN, SACHS & CO. [NAME(S) OF CO-REPRESENTATIVE(S)] BY: -------------------------------------------------------- (Goldman, Sachs & Co.) [[NAME(S) OF CO-REPRESENTATIVE CORPORATION(S)] BY: -------------------------------------------------------- NAME: TITLE: -------------------------------------------------------- [(NAME(S) OF CO-REPRESENTATIVE PARTNERSHIP(S))]] On behalf of each of the Underwriters 2 23 SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED SECURITIES TO BE UNDERWRITER PURCHASED ----------- --------- [GOLDMAN, SACHS & CO.].................................... $ [NAME(S) OF CO-REPRESENTATIVE(S)]......................... [NAMES OF OTHER UNDERWRITERS]............................. ---------------- Total................................... $ ================
24 SCHEDULE II TITLE OF DESIGNATED SECURITIES: [ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due , AGGREGATE PRINCIPAL AMOUNT: [$] PRICE TO PUBLIC: % of the principal amount of the Designated Securities, plus accrued interest [, if any,] from to [and accrued amortization[, if any,] from to ] PURCHASE PRICE BY UNDERWRITERS: % of the principal amount of the Designated Securities, plus accrued interest from to [and accrued amortization [, if any,] from to ] FORM OF DESIGNATED SECURITIES: [Definitive form to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery at the office of [The Depository Trust Company or its designated custodian] [the Representatives]] [Book-entry only form represented by one or more global securities deposited with The Depository Trust Company ("DTC") or its designated custodian, to be made available for checking by the Representatives at least twenty-four hours prior to the Time of Delivery at the office of DTC.] SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE: Federal (same day) funds TIME OF DELIVERY: a.m. (New York City time), , INDENTURE: Indenture dated , , between the Company and , as Trustee MATURITY: INTEREST RATE: [ %] [Zero Coupon] [See Floating Rate Provisions] INTEREST PAYMENT DATES: [months and dates, commencing , ] --------------------- -- REDEMPTION PROVISIONS: 25 [No provisions for redemption] [The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Company, in the amount of [$ ] or an integral multiple thereof, [on or after , at the following redemption prices (expressed in percentages of principal amount). If [redeemed on or before , %, and if] redeemed during the 12-month period beginning ,
REDEMPTION YEAR PRICE ---- ----------
and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.] [on any interest payment date falling on or after , , at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.]] [Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law] [Restriction on refunding] SINKING FUND PROVISIONS: [No sinking fund provisions] [The Designated Securities are entitled to the benefit of a sinking fund to retire [$ ] principal amount of Designated Securities on in each of the years through at 100% of their principal amount plus accrued interest[, together with [cumulative] [noncumulative] redemptions at the option of the Company to retire an additional [$ ] principal amount of Designated Securities in the years through at 100% of their principal amount plus accrued interest.] [If Designated Securities are extendable debt securities, insert-- EXTENDABLE PROVISIONS: Designated Securities are repayable on , , at the option of the holder, at their principal amount with accrued interest. The initial annual interest rate will be %, and thereafter the annual interest rate will be adjusted on , and to a rate not less than % of the effective annual interest rate on U.S. Treasury obligations with -year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].] [If Designated Securities are floating rate debt securities, insert-- 2 26 FLOATING RATE PROVISIONS: Initial annual interest rate will be % through [and thereafter will be adjusted [monthly] [on each , , and ] [to an annual rate of % above the average rate for -year [month] [securities][certificates of deposit] issued by and [insert names of banks].] [and the annual interest rate [thereafter] [from through ] will be the interest yield equivalent of the weekly average per annum market discount rate for -month Treasury bills plus % of Interest Differential (the excess, if any, of (i) the then current weekly average per annum secondary market yield for -month certificates of deposit over (ii) the then current interest yield equivalent of the weekly average per annum market discount rate for -month Treasury bills); [from and thereafter the rate will be the then current interest yield equivalent plus % of Interest Differential].] DEFEASANCE PROVISIONS: CLOSING LOCATION AND TIME FOR DELIVERY OF DESIGNATED SECURITIES: ADDITIONAL CLOSING CONDITIONS: Paragraph 7(g) of the Underwriting Agreement should be modified in the event that the Securities are denominated in, indexed to, or principal or interest are paid in, a currency other than the U.S. dollar, more than one currency or in a composite currency. The country or countries issuing such currency should be added to the banking moratorium and hostilities clauses and the following additional clause should be added to the paragraph (the entire paragraph should be restated, as amended): "; ( ) the imposition of the proposal of exchange controls by any governmental authority in [insert the country or countries issuing such currency, currencies or composite currency]". NAMES AND ADDRESSES OF REPRESENTATIVES: Designated Representatives: Address for Notices, etc.: [OTHER TERMS]* : - -------------------------- * A description of particular tax, accounting or other unusual features (such as the addition of event risk provisions) of the Designated Securities should be set forth, or referenced to an attached and accompanying description, if necessary, to ensure agreement as to the terms of the Designated Securities to be purchased and sold. Such a description might appropriately be in the form in which such features will be described in the Prospectus Supplement for the offering. 3 27 ANNEX III Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall furnish letters to the Underwriters to the effect that: (i) They are independent certified public accountants with respect to the Company and its subsidiaries within the meaning of the Act and the applicable published rules and regulations thereunder; (ii) In their opinion, the financial statements and any supplementary financial information and schedules audited (and, if applicable, financial forecasts and/or pro forma financial information) examined by them and included or incorporated by reference in the Registration Statement or the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act or the Exchange Act, as applicable, and the related published rules and regulations thereunder; and, if applicable, they have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the consolidated interim financial statements, selected financial data, pro forma financial information, financial forecasts and/or condensed financial statements derived from audited financial statements of the Company for the periods specified in such letter, as indicated in their reports thereon, copies of which have been [SEPARATELY] furnished to the representative or representatives of the Underwriters (the "Representatives", with such term to include an Underwriter or Underwriters who act without any firm being designated as its or their representatives) [AND ARE ATTACHED HERETO]; (iii) They have made a review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included in the Company's quarterly report on Form 10-Q incorporated by reference into the Prospectus as indicated in their reports thereon copies of which [HAVE BEEN SEPARATELY FURNISHED TO THE REPRESENTATIVES][ARE ATTACHED HERETO]; and on the basis of specified procedures, including inquiries of officials of the Company who have responsibility for financial and accounting matters regarding whether the unaudited condensed consolidated financial statements referred to in paragraph (vi)(A)(i) below comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations, nothing came to their attention that caused them to believe that the unaudited condensed consolidated financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (iv) The unaudited selected financial information with respect to the consolidated results of operations and financial position of the Company for the five most recent fiscal years included in the Prospectus and included or incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K for the most recent fiscal year agrees with the corresponding amounts (after restatement where applicable) in the audited consolidated financial statements for such five fiscal years which were included 28 or incorporated by reference in the Company's Annual Reports on Form 10-K for such fiscal years; (v) They have compared the information in the Prospectus under selected captions with the disclosure requirements of Regulation S-K and on the basis of limited procedures specified in such letter nothing came to their attention as a result of the foregoing procedures that caused them to believe that this information does not conform in all material respects with the disclosure requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K; (vi) On the basis of limited procedures, not constituting an examination in accordance with generally accepted auditing standards, consisting of a reading of the unaudited financial statements and other information referred to below, a reading of the latest available interim financial statements of the Company and its subsidiaries, inspection of the minute books of the Company and its subsidiaries since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company and its subsidiaries responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that: (A) (i) the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus and/or included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations, or (ii) any material modifications should be made to the unaudited condensed consolidated statements of income, consolidated balance sheets and consolidated statements of cash flows included in the Prospectus or included in the Company's Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles; (B) any other unaudited income statement data and balance sheet items included in the Prospectus do not agree with the corresponding items in the unaudited consolidated financial statements from which such data and items were derived, and any such unaudited data and items were not determined on a basis substantially consistent with the basis for the corresponding amounts in the audited consolidated financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; (C) the unaudited financial statements which were not included in the Prospectus but from which were derived the unaudited condensed financial statements referred to in clause (A) and any unaudited income statement data and balance sheet items included in the Prospectus and referred to in Clause (B) were not determined on a basis substantially consistent with the basis for the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; 2 29 (D) any unaudited pro forma consolidated condensed financial statements included or incorporated by reference in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the published rules and regulations thereunder or the pro forma adjustments have not been properly applied to the historical amounts in the compilation of those statements; (E) as of a specified date not more than five days prior to the date of such letter, there have been any changes in the consolidated capital stock (other than issuances of capital stock upon exercise of options and stock appreciation rights, upon earn-outs of performance shares and upon conversions of convertible securities, in each case which were outstanding on the date of the latest balance sheet included or incorporated by reference in the Prospectus) or any increase in the consolidated long-term debt of the Company and its subsidiaries, or any decreases in consolidated net current assets or shareholders' equity or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with amounts shown in the latest balance sheet included or incorporated by reference in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (F) for the period from the date of the latest financial statements included or incorporated by reference in the Prospectus to the specified date referred to in Clause (E) there were any decreases in consolidated net revenues or operating profit or the total or per share amounts of consolidated net income or other items specified by the Representatives, or any increases in any items specified by the Representatives, in each case as compared with the comparable period of the preceding year and with any other period of corresponding length specified by the Representatives, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (vii) In addition to the audit referred to in their report(s) included or incorporated by reference in the Prospectus and the limited procedures, inspection of minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above, they have carried out certain specified procedures, not constituting an audit in accordance with generally accepted auditing standards, with respect to certain amounts, percentages and financial information specified by the Representatives which are derived from the general accounting records of the Company and its subsidiaries, which appear in the Prospectus (excluding documents incorporated by reference), or in Part II of, or in exhibits and schedules to, the Registration Statement specified by the Representatives or in documents incorporated by reference in the Prospectus specified by the Representatives, and have compared certain of such amounts, percentages and financial information with the accounting records of the Company and its subsidiaries and have found them to be in agreement. All references in this Annex III to the Prospectus shall be deemed to refer to the Prospectus (including the documents incorporated by reference therein) as defined in the Underwriting Agreement as of the date of the letter delivered on the date of the Pricing Agreement for purposes of such letter and to the Prospectus as amended or supplemented (including the documents incorporated by reference therein) in relation to the applicable Designated Securities for purposes of the letter delivered at the Time of Delivery for such Designated Securities. 3 EX-12 3 COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12 VULCAN MATERIALS COMPANY AND SUBSIDIARY COMPANIES COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES For the Years Ended December 31 Amounts in Thousands
1998 1997 1996 1995 1994 - ---------------------------------------------------------------------------------------------------------------------- Fixed charges: Interest expenses before capitalization Credits ................................. $ 7,224 $ 8,074 $ 9,263 $ 11,396 $ 10,699 Amortization of financing costs .......... 93 104 164 109 114 One-third of rental expense .............. 13,668 9,735 9,663 9,532 10,393 --------------------------------------------------------------------- Total fixed charges ................ $ 20,985 $ 17,913 $ 19,090 $ 21,037 $ 21,206 ===================================================================== Net earnings ................................ 255,908 209,145 188,595 166,240 97,976 Provisions for income taxes ................. 118,936 91,356 96,985 92,181 47,930 Fixed charges ............................... 20,985 17,913 19,090 21,037 21,206 Capitalized interest credits ................ (442) (1,160) (627) (297) (878) Amortization of capitalized interest ........ 715 708 674 1,031 997 ---------------------------------------------------------------------- Earnings before income taxes as adjusted ................................ $ 396,102 $ 317,962 $ 304,717 $ 280,192 $ 167,231 ====================================================================== Ratio of earnings to fixed charges .......... 18.9 17.8 16.0 13.3 7.9
18 EX-23.1 4 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Amendment No. 2 to Registration Statement of Vulcan Materials Company on Form S-3 of our reports dated February 5, 1999 (March 10, 1999 as to Note 15B), appearing in and incorporated by reference in the Annual Report on Form 10-K of Vulcan Materials Company for the year ended December 31, 1998 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 March 29, 1999 EX-23.4 5 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.4 We consent to the incorporation by reference in this registration statement of Vulcan Materials Company on Form S-3 (File No. 333-68895) of our report dated March 2, 1999, on our audits of the consolidated financial statements of CalMat Co. and subsidiaries as of December 31, 1998 and 1997, and for the years ended December 31, 1998, 1997 and 1996, which report is included in the Current Report on Form 8-K/A of Vulcan Materials Company, dated January 6, 1999, and filed March 19, 1999. We also consent to the reference to our firm under the caption Experts. /s/ PricewaterhouseCoopers LLP -------------------------------- PricewaterhouseCoopers LLP Los Angeles, California March 29, 1999 -----END PRIVACY-ENHANCED MESSAGE-----