Vulcan Materials Company Common Stock, par value $1.00 per share Underwriting Agreement
Exhibit 1.1
EXECUTION VERSION
Vulcan Materials Company
Common Stock, par value $1.00 per share
June 11, 2009
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Vulcan Materials Company, a New Jersey corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of 11,500,000 shares (the “Firm Securities”) and, at the
election of the Underwriters, up to 1,725,000 additional shares (the “Optional Securities”) of
Common Stock, par value $1.00 per share (“Stock”) of the Company (the Firm Securities and the
Optional Securities that the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the “Securities”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities
Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-147796) in respect of the Securities
has been filed by the Company with the Securities and Exchange Commission (the “Commission”) not
earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued under the Act and
no proceeding for that purpose has been initiated, or to the knowledge of the Company has been
threatened by the Commission, and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Act has been received by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the Commission on or prior to
the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary
prospectus (including any preliminary prospectus supplement) relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including all exhibits thereto and
any prospectus supplement relating to the Securities that is filed with the Commission and deemed
by virtue of Rule 430B under the Act to be part of such registration statement, each as amended at
the time such part of the registration statement became effective, are hereinafter collectively
called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the
“Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is
hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing
Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 11 and Item 12 of Form S-3 under
the Act, as of the date of such prospectus; any reference to any amendment or supplement to the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any post-effective amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any
documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated by reference into such Basic Prospectus, Preliminary Prospectus or Prospectus, in each
case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the
case may be; any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any “issuer free writing prospectus” as defined in
Rule 433
under the Act relating to the Securities is hereinafter called an “Issuer Free Writing
Prospectus”);
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(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein;
(c) For
the purposes of this Agreement, the “Applicable Time” is
6:00 pm (New York City
time) on the date of this Agreement. The Pricing Prospectus (together with the specified
information set forth on Schedule II(a) hereto and the Issuer Free Writing Prospectus identified on
Schedule II(b)(i) hereto), as of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(b) hereto does not conflict with the information contained
in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the Pricing Prospectus as of the
Applicable Time, did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in the Pricing Prospectus or an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives expressly for use therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the
applicable rules and regulations of the Commission thereunder, and when read together with the
other information in the Registration Statement, the Pricing Prospectus and the Prospectus, at the
respective times the Registration Statement and any amendments thereto became effective, as of the
Applicable Time, at the date of the Prospectus and at each Time of Delivery (as defined below), did
not and will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading; any further documents so filed and incorporated by reference in the 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,
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and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein; and no such documents were filed with the Commission
since the Commission’s close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(c)
hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, as of the applicable
effective date as to the Registration Statement and as of the applicable filing date and as of each
Time of Delivery as to the Prospectus, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein;
(f) 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 Pricing Prospectus and
the Prospectus any material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which is material to the Company and its subsidiaries taken
as a whole otherwise than as set forth or contemplated in the Pricing Prospectus and the
Prospectus; and, since the respective dates as of which information is given in the Registration
Statement, the Pricing Prospectus and the Prospectus, there has not been any material change in the
capital stock or long term debt (which is debt with a maturity of a year or more) of the Company or
any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X) (“Significant
Subsidiaries”) or any material adverse change in or affecting the business, management, financial
position, shareholders’ equity, results of operations, or to the knowledge of the Company, in the
business prospects of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus and the Prospectus;
(g) (i) The Company and its Significant Subsidiaries have good and valid title to all of the
properties and assets reflected in the financial statements included or incorporated by reference
in the Pricing Prospectus and Prospectus, subject to no lien,
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mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or which are not
material in nature or amount; and (ii) the Company and its Significant Subsidiaries use or occupy
their leased properties under valid and binding leases, except in (i) and (ii) as would not,
individually or in the aggregate, have a material adverse effect on the business, consolidated
financial position, shareholders’ equity, results of operations, or to the knowledge of the Company
in the business prospects, of the Company and any of its subsidiaries taken as a whole (a “Material
Adverse Effect”);
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and authority to own its
properties and conduct its business as described in the Pricing Prospectus and the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would not result in a Material Adverse
Effect; and each Significant Subsidiary of the Company has been duly organized and is validly
existing as a corporation or other organization in good standing under the laws of the jurisdiction
in which it is chartered or organized;
(i) The
Company has, as of March 31, 2009, an authorized capitalization as set forth in the
Pricing Prospectus and the Prospectus; and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and non-assessable;
(j) The Securities to be issued and sold by the Company to the Underwriters hereunder have
been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
to the description of the Securities contained in the Prospectus;
(k) The issue and sale of the Securities and the compliance by the Company with this Agreement
and the consummation of the transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, except for such
conflicts, breaches, violations or defaults that would not, individually or in the aggregate,
have a Material Adverse Effect, nor will such action result in any violation of any statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, except for such violations that
would not, individually or in the aggregate, have a Material Adverse Effect, nor will such action
result in any violation of the provisions of the Certificate of Incorporation or By-laws of the
Company; and no material consent,
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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
except such as have been or will have been prior to the First Time of Delivery, obtained under the
Act and such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase and distribution
of the Securities by the Underwriters;
(l) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (or other organizational documents) or in default in the
performance or observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for defaults that would not have
a Material Adverse Effect;
(m) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Stock, and under the caption “Certain United States Tax Consequences to Non-U.S. Holders of Common
Stock”, insofar as they purport to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material respects;
(n) Other than as set forth in the Pricing Prospectus and the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would, individually or in the aggregate, have
a Material Adverse Effect; and, to the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(p) Other than as set forth in the Pricing Prospectus and the Prospectus, the property, assets
and operations of the Company and its Significant Subsidiaries comply
in all material respects with all applicable federal, state and local law, common law,
doctrine, rule, order, decree, judgment, injunction, license, permit and regulation relating to
environmental matters (the “Environmental Laws”), except to the extent that failure to comply with
such Environmental Laws would not have a Material Adverse Effect; to the knowledge of the Company,
none of the property, assets or operations of the Company and its Significant Subsidiaries is the
subject of any federal, state or local investigation evaluating whether any remedial action is
needed to respond to a release into the environment of any substance regulated by, or form the
basis of liability under, any
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Environmental Laws (a “Hazardous Material”), or is in contravention
of any Environmental Law that would have a Material Adverse Effect; neither the Company nor any
subsidiary has received any notice or claim, nor are there pending or, to the 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 that would reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any subsidiary has any
contingent liability in connection with any release of Hazardous Material into the environment,
that is material with respect to the Company and its subsidiaries taken as a whole;
(q) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the
Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the
Securities, the Company was not an “ineligible issuer” as defined in Rule 405 under the Act;
(r) Deloitte & Touche LLP, who has expressed its opinion with respect to certain financial
statements of the Company, all included or incorporated by reference in the Registration Statement,
Pricing Prospectus and Prospectus, and who has expressed its opinion with respect to the
effectiveness of the Company’s internal control over financial reporting at December 31, 2008, was
and will be an independent registered public accounting firm with respect to the Company as of the
Applicable Time and each Time of Delivery;
(s) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles. The Company’s internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its internal control over
financial reporting;
(t) Since the date of the latest audited financial statements of the Company included or
incorporated by reference in the Pricing Prospectus and the Prospectus, there has been no change in
the Company’s internal control over financial reporting that
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has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting;
and
(u) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
2. Subject to the terms and conditions herein set forth, (a) 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 a purchase price per share of $39.36, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the
event and to the extent that the Underwriters shall exercise the election to purchase Optional
Securities as provided below, 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
purchase price per share set forth in clause (a) of this Section 2, that portion of the number of
Optional Securities as to which such election shall have been exercised (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying such number of Optional Securities by
a fraction, the numerator of which is the maximum number of Optional Securities which such
Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the maximum number of Optional Securities that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
1,725,000 shares of Optional Securities, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm
Securities, provided that the purchase price per share of Optional Securities shall be reduced by
an amount per share equal to any dividends or distributions declared by the Company and payable on
the Firm Securities but not payable on the Optional Securities. Any such election to purchase
Optional Securities may be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the aggregate number
of Optional Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Securities, the several
Underwriters propose to offer the Firm Securities for sale upon the terms and conditions set forth
in the Prospectus.
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4. (a) The
Securities to be purchased by each Underwriter hereunder, in such authorized denominations and registered in such names as Xxxxxxx, Xxxxx & Co. and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated may request upon at least forty-eight hours’ prior
notice to the Company shall be delivered by or on behalf of the Company to Xxxxxxx, Sachs & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, through the facilities of The Depository Trust
Company (“DTC”), for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated at least forty-eight hours in advance. The Company will cause the Securities to be
delivered at the office of DTC or its designated custodian (the “Designated Office”). The time and
date of such delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m. (New
York City time), on June 17, 2009 or such other time and date as Xxxxxxx, Sachs & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the Company may agree upon in writing, and, with
respect to the Optional Securities, 9:30 a.m. (New York City time), on the date specified by
Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated in the written notice
given by them of the Underwriters’ election to purchase such Optional Securities, or such other
time and date as Xxxxxxx, Sachs & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and the
Company may agree upon in writing. Such time and date for delivery of the Firm Securities is
herein called the “First Time of Delivery”, such time and date for delivery of the Optional
Securities, if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and
each such time and date for delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(m) hereof, will be
delivered at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the “Closing Location”), and the Securities will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m. (New
York City time), on the New York Business Day next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will
be
available for review by the parties hereto. For the purposes of this Section 4, “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic
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Prospectus or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you in your reasonable judgment promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish you with copies thereof; to file
promptly all other material required to be filed by the Company with the Commission pursuant to
Rule 433(d) under the Act; to file within the required time periods all reports and any definitive
proxy or information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required under the Act in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the Securities, of any notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice
of objection, promptly to take such steps including, without limitation, amending the Registration
Statement or filing a new registration statement, at its own expense, as may be necessary to permit
offers and sales of the Securities by the Underwriters (references herein to the Registration
Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make
no further amendment or supplement to such form of prospectus which shall be disapproved by
you promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably require to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
reasonably require and to maintain such qualification so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Securities up to one year from the date hereof, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to qualify as a foreign corporation or as a broker or
dealer in securities in
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any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(d) To furnish the Underwriters with (i) electronic copies of the Prospectus prior to 3:00
p.m. (New York City time), on the New York Business Day next succeeding the date of this Agreement
and from time to time, and (ii) written copies of the Prospectus prior to 10:00 a.m., New York
City time, on the second New York Business Day next succeeding the date of this Agreement and from
time to time, in each case in such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and electronic copies as you may
from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) in connection with sales of any of the Securities at any time nine months or
more after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as
you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose, except as provided hereunder, of any
securities of the Company that are substantially similar to the Securities, including but not
limited to any options or warrants to purchase shares of Stock or any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other
- 11 -
than (i) pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of,
the date of this Agreement or (ii) pursuant to the terms of the Company Stock Investment Fund
established under the Company Master Retirement Savings Trust, effective June 1, 2003, or
agreements related thereto between the Company and The Northern Trust Company), without the prior
written consent of Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption
“Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Securities on the New
York Stock Exchange (the “Exchange”); and
(j) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the
website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering
of the Securities (the “License”); provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be assigned or transferred.
6.
(a) (i) The Company represents and agrees that, without the prior consent of Xxxxxxx, Sachs &
Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, it has not made and will not make any
offer relating to the Securities that would constitute a “free writing prospectus” as defined in
Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company,
Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, it has not made and
will not make any offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or any other free writing prospectus that would be required to be filed with the
Commission; and
(iii) any such free writing prospectus the use of which has been consented to by the Company,
Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated is listed on Schedule
II(b) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
- 12 -
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to Xxxxxxx, Sachs & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and, if requested by Xxxxxxx, Sachs & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through Xxxxxxx,
Sachs & Co. or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration and sale of the Securities under the Act and
all other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all reasonable expenses in connection with the qualification
of the Securities for offering and sale under state securities laws as provided in Section 5(c)
hereof, including the reasonable fees and disbursements of counsel for the Underwriters in
connection with such
qualification and in connection with the Blue Sky survey; (iv) all fees and expenses in
connection with listing the Securities on the Exchange; (v) the filing fees incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in connection with, any required
review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the cost and charges of any transfer agent or
registrar; and (viii) all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section and Sections 9 and 12 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Securities by them, and any advertising expenses connected with any offers
they may make.
8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition
- 13 -
that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received by the Company;
no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you
their written opinion and disclosure letter, each dated such Time of Delivery, with respect to such
matters as you may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters, and may rely
upon the opinion of New Jersey counsel with respect to matters of New Jersey law;
(c) Xxxxxx X. Xxxxx, XX, Esq., Senior Vice President and General Counsel, for the Company
shall have furnished to you his written opinion dated such Time of
Delivery, in form and substance reasonably satisfactory to you, to the effect set forth in
Annex I(A) hereto, and he may rely upon the opinion of New Jersey counsel with respect to matters
of New Jersey law:
(d) Xxxxxxxxxx Xxxxxxx PC, special New Jersey counsel for the Company, shall have furnished to
you their written opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to you, to the effect set forth in Annex I(B) hereto;
(e) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to you their
written opinion and disclosure letter, each dated such Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect set forth in Annex I(C) hereto, and such counsel may
rely upon the opinion of New Jersey counsel with respect to matters of New Jersey law;
- 14 -
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m. (New York City time), on the effective date of any post effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and also at each Time of
Delivery, Deloitte & Touche LLP shall have furnished to you a “comfort” letter or letters, dated
the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements of the Company included or incorporated by reference in the
Pricing Prospectus and the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given
in the Pricing Prospectus and the Prospectus there shall not have been any material change in the
capital stock or material increase in long-term debt (which is debt with a maturity of a year or
more) of the Company or any of its subsidiaries or any material change in or affecting the
business, business prospects, management, or consolidated financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery of the Securities
being delivered at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(h) On or after the Applicable Time, (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications, its rating of any of
the Company’s debt securities;
(i) On or after the Applicable Time, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the
New York Stock Exchange; or (iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the outbreak or escalation
of hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to
- 15 -
proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(j) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(k) The Securities shall have been duly listed, subject to notice of issuance, on the
Exchange;
(l) The Company has obtained and delivered to the Underwriters executed copies of “lock-up”
agreements from the directors and executive officers of the Company listed on Schedule III hereto,
in form and substance reasonably satisfactory to you, substantially to the effect set forth in
Annex II hereto; and
(m) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section 8 and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim within
30 days after receipt of invoicing for such expense; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use therein.
- 16 -
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim within 30 days after receipt of invoicing for such expenses.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section
9 of notice of the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party otherwise than
under such subsection (except to the extent that the indemnifying party is materially prejudiced by
reason of such failure). In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), provided, however, such indemnified party shall have
the right to employ its own counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such indemnified party,
unless: (i) the employment of such counsel has been specifically authorized in writing by the
indemnifying party; (ii) the indemnifying party has failed promptly to assume the defense and
employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any
such action (including any impleaded parties) include both such indemnified party and the
indemnifying party or any affiliate of the indemnifying party, and such indemnified party shall
have reasonably concluded that either (x) there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying party or such
affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and
the indemnifying party or such affiliate of the
- 17 -
indemnifying party (it being understood, however,
that the indemnifying party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which
firm shall be designated in writing by the Representatives and that all such reasonable fees and
expenses shall be reimbursed as they are incurred). Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other
from the offering of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnifying party was materially
prejudiced as a result of the failure by the indemnified party to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company on the one
hand or the Underwriters on
- 18 -
the other and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The aggregate amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if any, who controls
the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for
you or another party or other parties to purchase such Securities on the terms contained herein.
If within thirty six hours after such default by any Underwriter you do not arrange for the
purchase of such Securities, then the Company shall be entitled to a further period of thirty six
hours within which to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Company that you have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the Company shall have the
right to postpone such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may
- 19 -
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of
the aggregate number of all the Securities to be purchased at such Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the
aggregate number of all the Securities to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Securities) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof
and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any of the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in
- 20 -
writing by you, including reasonable fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, Xxxxxxx, Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given jointly by Xxxxxxx, Sachs & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department; Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000, Attention: Syndicate
Department, with a copy to: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx,
Xxx Xxxx, Xxx Xxxx 00000, Facsimile: (000) 000-0000, Attention: ECM Legal; X.X. Xxxxxx Securities
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Facsimile: (000) 000-0000, Attention: Equity
Syndicate Desk; and Wachovia Capital Markets, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Equity Syndicate Department; and if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
- 21 -
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent, fiduciary or financial advisor of the Company, (iii) no Underwriter has assumed an advisory
or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to
- 22 -
comply with securities laws. For this purpose, “tax structure” is limited to any facts that
may be relevant to that treatment.
If the foregoing is in accordance with your understanding, please sign and return to us eight
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
[Signatures on following pages]
- 23 -
| Very truly yours, | ||||
| VULCAN MATERIALS COMPANY | ||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Senior Vice President and Chief Financial Officer |
||||
- 24 -
Accepted as of the date hereof:
XXXXXXX, SACHS & CO.
By: |
/s/ Xxxxxxx, Xxxxx & Co. | |||
| XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
By: |
/s/ Xxxxx X. Xxxxxx | |||
| Title: Managing Director | ||||
| X.X. XXXXXX SECURITIES INC. | ||||
By: |
/s/ Xxxxx Xxxxxxxxx | |||
| Title: Vice President | ||||
WACHOVIA CAPITAL MARKETS, LLC
|
||||
By: |
/s/ Xxxx Xxxxx | |||
| Title: Managing Director | ||||
| Wachovia
Capital Markets, LLC For themselves and as Representatives of the several Underwriters named in Schedule I hereto |
||||
- 25 -
SCHEDULE I
| Number of | ||||||||
| Optional | ||||||||
| Total Number of | Securities to be | |||||||
| Firm Securities | Purchased if | |||||||
| to be | Maximum Option | |||||||
| Underwriter | Purchased | Exercised | ||||||
Xxxxxxx, Sachs & Co. |
3,478,750 | 521,813 | ||||||
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated |
2,903,750 | 435,563 | ||||||
X.X. Xxxxxx Securities Inc. |
1,150,000 | 172,500 | ||||||
Wachovia Capital Markets, LLC |
1,437,500 | 215,625 | ||||||
Xxxxxx Xxxxxx & Company, Inc. |
690,000 | 103,500 | ||||||
SunTrust Xxxxxxxx Xxxxxxxx, Inc. |
575,000 | 86,250 | ||||||
UBS Securities LLC |
575,000 | 86,250 | ||||||
The Xxxxxxxx Capital Group, L.P. |
172,500 | 25,875 | ||||||
BB&T Capital Markets, a division of
Xxxxx & Xxxxxxxxxxxx, LLC |
115,000 | 17,250 | ||||||
BBVA Securities Inc. |
115,000 | 17,250 | ||||||
Mizuho Securities USA Inc. |
115,000 | 17,250 | ||||||
ABN AMRO Incorporated |
86,250 | 12,937 | ||||||
Mitsubishi UFJ Securities (USA), Inc. |
86,250 | 12,937 | ||||||
Total |
11,500,000 | 1,725,000 | ||||||
I-1
SCHEDULE II
| (a) | Pricing Information: |
| § | Public Offering Price: $41.00 per share |
| (b) | Issuer Free Writing Prospectuses: |
| (i) | Press Release of the Company, dated June 10, 2009 (filed pursuant to Rule 433 under the Act) | ||
| (ii) | Electronic Road Show materials (including powerpoint slides), dated June 10, 2009 |
| (c) | Additional Documents Incorporated by Reference: |
| § | None |
II-1
SCHEDULE III
Directors and Executive Officers Subject to Lock-Up Agreements
Xxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxxx X. Xxxxxx
X. Xxxxx Xxxxxxxx
Xxxxxx M. Xxxxx
Xxxx X. Xxxx
Xxx XxXxxxxxxx Xxxxxxxxx
Xxxxxx X. XxXxxx
Xxxxxxx X. XxXxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. X’Xxxxx
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx XX
III-1
