Vulcan Materials Company Underwriting Agreement
Exhibit 1.1
EXECUTION
COPY
Vulcan Materials Company
6.30% Notes due 2013
7.00% Notes due 2018
7.00% Notes due 2018
June 17, 2008
Banc of America Securities LLC,
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.,
Wachovia Capital Markets, LLC
Xxxxxxx, Xxxxx & Co.,
X.X. Xxxxxx Securities Inc.,
Wachovia Capital Markets, LLC
As Representatives of the several Underwriters
named in Schedule I hereto,
named in Schedule I hereto,
c/x Xxxxxxx, Xxxxx & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
00 Xxxxx Xxxxxx,
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 (i) $250,000,000 principal amount of 6.30% Notes due
2013 and (ii) $400,000,000 principal amount of 7.00% Notes due 2018 (together, the “Securities”).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities
Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-147796) in respect of the Securities
has been filed by the Company with the Securities and Exchange Commission (the “Commission”) not
earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof
has been issued under the Act and no proceeding for that purpose has been initiated, or to the
knowledge of the Company has been threatened by the Commission, and no notice of objection of the
Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus
filed as part of such registration statement, in the form in which it has most recently been filed
with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating
to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “Preliminary Prospectus”; the various parts of such registration statement, including all
exhibits thereto and any prospectus supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B under the Act to be part of such registration
statement, each as amended at the time such part of the registration statement became effective,
are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended
and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is
hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 11 and Item
12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or
supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the Registration Statement, any prospectus
supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the
Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and incorporated by reference into such Basic Prospectus, Preliminary Prospectus or
Prospectus, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or
the Prospectus, as the case may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing prospectus”
as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer
Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the Trust
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Indenture Act of 1939, as amended (the “Trust Indenture Act”) and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is 3:15 p.m. (Eastern time) on
the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheets
prepared and filed pursuant to Section 5(a) hereof and the Issuer Free Writing Prospectuses, if
any, identified on Schedule II(a) hereto, taken together (collectively, the “Pricing Disclosure
Package”) as of the Applicable Time, did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and each Issuer Free Writing
Prospectus, if any, listed on Schedule II(b) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure
Package as of the Applicable Time, did not include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in the Pricing
Prospectus or an Issuer Free Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representatives expressly for use
therein;
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the
applicable rules and regulations of the Commission thereunder, and when read together with the
other information in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
at the respective times the Registration Statement and any amendments thereto became effective, as
of the Applicable Time, at the date of the Prospectus and at the Time of Delivery (as defined
below), did not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; any further documents so
filed and incorporated by reference in the
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Prospectus or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein; and no such
documents were filed with the Commission since the 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 the
Time of Delivery as to the Prospectus, in all material respects to the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to each part of the Registration Statement and as
of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein or to any statements in or omissions from the
Statement of Eligibility of the Trustee under the Indenture;
(f) Neither the Company nor any of its subsidiaries has sustained since the respective dates
of the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus and the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing Prospectus
and the Prospectus; and, since the respective dates as of which information is given in the
Registration Statement, the Pricing Prospectus and the Prospectus, there has not been any material
change in the capital stock or long term debt (which is debt with a maturity of a year or more) of
the
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Company or any of its significant subsidiaries (as defined in Rule 1-02(w) of Regulation S-X)
(“Significant Subsidiaries”) or any material adverse change in or affecting the business,
management, financial position, shareholders’ equity, results of operations, or to the knowledge of
the Company in the business prospects, of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Pricing Prospectus and the Prospectus;
(g) (i) The Company and its Significant Subsidiaries have good and valid title to all of the
properties and assets reflected in the financial statements included or incorporated by reference
in the Pricing Prospectus and Prospectus, subject to no lien, mortgage, pledge, charge or
encumbrance of any kind except those reflected in such financial statements or which are not
material in nature or amount; and (ii) the Company and its Significant Subsidiaries use or occupy
their leased properties under valid and binding leases; except in (i) and (ii) as would not
individually or in the aggregate have a material adverse effect on the business, consolidated
financial position, shareholders’ equity, results of operations, or to the knowledge of the Company
in the business prospects, of the Company and any of its subsidiaries taken as a whole (a “Material
Adverse Effect”);
(h) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of New Jersey, with corporate power and authority to own its
properties and conduct its business as described in the Pricing Prospectus and the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which such qualification is required, except
where the failure to so qualify or be in good standing would not result in a Material Adverse
Effect; and each Significant Subsidiary of the Company has been duly organized and is validly
existing as a corporation or other organization in good standing under the laws of the jurisdiction
in which it is chartered or organized;
(i) The Company has as of March 31, 2008, an authorized capitalization as set forth in the
Pricing Prospectus and the Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and non-assessable;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to this
Agreement and the Indenture, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to the benefits
provided by the Senior Debt Indenture dated as of December 11, 2007, between the Company and
Wilmington Trust Company (the “Trustee”), which is substantially in the form filed as an exhibit to
the Registration Statement, as supplemented by the Second Supplemental Indenture, to be dated June
20, 2008, between the Company and
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the Trustee (together, the “Indenture”), under which they are to be issued; the Indenture has
been duly authorized by the Company and duly qualified under the Trust Indenture Act and,
constitutes a valid and legally binding instrument, enforceable in accordance with its terms,
except as (i) the enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the enforcement of creditors’ rights generally and (ii) rights of
acceleration and the availability of other remedies may be limited by equitable principles of
general applicability;
(k) The issue and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, violations or defaults that would not individually or in the
aggregate have a Material Adverse Effect, nor will such action result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties, except for
such violations that would not individually or in the aggregate have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the Certificate of Incorporation or
By-laws of the Company; and no material consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the transactions contemplated by
this Agreement or the Indenture except such as have been or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(l) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws (or other organizational documents) or in default in the
performance or observance of any obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, except for defaults that would not have
a Material Adverse Effect;
(m) The Securities and the Indenture will conform in all material aspects to the descriptions
thereof in the Pricing Prospectus and the Prospectus;
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(n) Other than as set forth in the Pricing Prospectus and the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; and, to the 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
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
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filing of the Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company
was not an “ineligible issuer” as defined in Rule 405 under the Act;
(r) Deloitte & Touche LLP, who have expressed its opinion with respect to certain financial
statements of the Company and the Company’s internal control over financial reporting, all included
or incorporated by reference in the Registration Statement, Pricing Prospectus and Prospectus, was
and will be an independent registered public accounting firm with respect to the Company as of the
Applicable Time and the Time of Delivery; and KPMG LLP, who have expressed its opinion with respect
to certain financial statements of Florida Rock Industries, Inc. and its subsidiaries (“Florida
Rock”) included or incorporated by reference in the Registration Statement, Pricing Prospectus and
Prospectus, was an independent registered public accounting firm with respect to Florida Rock as of
November 16, 2007, as required by the Act and the applicable rules and regulations of the
Commission thereunder;
(s) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the 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 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, the Company agrees to issue and sell
to each of the Underwriters, and each of the
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Underwriters agrees, severally and not jointly, to purchase from the Company (i) at a purchase
price of 99.199% of the aggregate principal amount thereof, plus accrued interest, if any, from
June 20, 2008 to the Time of Delivery hereunder, the aggregate principal amount of 6.30% Notes due
2013, set forth opposite the name of such Underwriter in Schedule I hereto, and (ii) at a purchase
price of 99.245% of the principal amount thereof, plus accrued interest, if any, from June 20, 2008
to the Time of Delivery hereunder, the principal amount of 7.00% Notes due 2018, set forth opposite
the name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by
one or more definitive global Securities in book-entry form which will be deposited by or on behalf
of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company
will deliver the Securities to the Representatives, for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the Representatives at least
twenty-four hours in advance, by causing DTC to credit the Securities to the respective accounts of
the Representatives at DTC. The Company will cause the certificates representing the Securities to
be made available to the Representatives for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian (the “Designated
Office”). The time and date of such delivery and payment shall be 9:30 a.m., New York City time,
on June 20, 2008 or such other time and date as the Representatives and the Company may agree upon
in writing. Such time and date are herein called the “Time of Delivery”.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to Section 8(l) hereof, will be
delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the “Closing Location”), and the Securities will be delivered at the Designated Office, all at the
Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York City are generally authorized or obligated by law or executive order to close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the 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 Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you in your reasonable judgment promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you with copies thereof; to prepare final term sheets,
containing a description of the Securities, substantially in the forms attached as Schedules III-1
and III-2 hereto, and to file such term sheets pursuant to Rule 433(d) under the Act within the
time required by such Rule; to file promptly all other material required to be filed by the Company
with the Commission pursuant to Rule 433(d) under the Act; to file within the required time periods
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required under the Act in connection with the
offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly
use its best efforts to obtain the withdrawal of such order; and in the event of any such issuance
of a notice of objection, promptly to take such steps including, without limitation, amending the
Registration Statement or filing a new registration statement, at its own expense, as may be
necessary to permit offers and sales of the Securities by the Underwriters (references herein to
the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus
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pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the
Act; and to make no further amendment or supplement to such form of prospectus which shall be
disapproved by you promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably require to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
reasonably require and to maintain such qualification so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Securities up to one year from the date hereof, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction or to qualify as a foreign corporation or as a broker or
dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject;
(d) To furnish the Underwriters with (i) electronic copies of the Prospectus prior to 3:00
p.m., New York City time, on the New York Business Day next succeeding the date of this Agreement
and from time to time, and (ii) written copies of the Prospectus prior to 10:00 a.m., New York
City time, on the second New York Business Day next succeeding the date of this Agreement and from
time to time, in each case in such quantities as you may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the
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expense of such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(e) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the later
of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder of, any securities of the Company that: (i) mature more than one year
after such Time of Delivery, (ii) bear the same rate as the securities and (iii) are otherwise
substantially similar to the Securities;
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act; and
(h) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus under the caption
“Use of Proceeds”.
6.
(a) (i) The Company represents and agrees that, other than the final term sheets prepared and
filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, other than the final term sheets prepared and filed pursuant to Section 5(a)
hereof, it has not made and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or any other free writing prospectus that would be
required to be filed with the Commission; and
(iii) any such free writing prospectus the use of which has been consented to by the Company
and the Representatives (including the final term
-12-
sheets prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) or Schedule
II(b) hereto, as applicable;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the 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 Indenture, the Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Securities; (iii) all reasonable expenses in
connection with the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection with the Blue Sky
survey; (iv) any fees charged by securities rating services for rating the Securities; (v) the
filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters
in connection with, any required review by the Financial Industry Regulatory Authority of the terms
of the sale of the Securities; (vii) the cost of preparing the Securities; (viii) the fees and
-13-
expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that, except as provided in
this Section and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters to purchase and pay for the Securities hereunder shall
be subject, in their discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; the final term sheets contemplated by
Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission and no notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have
been initiated or threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, with respect to such matters as you may
reasonably request, and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters, and may rely upon the opinion of New
Jersey counsel with respect to matters of New Jersey law;
(c) Xxxxxxx X. Xxxxxx, III, Esq., Senior Vice President and General Counsel, for the Company
shall have furnished to you his written opinion dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set
-14-
forth in Xxxxx XX(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 the Time of Delivery, in form and substance satisfactory to you,
to the effect set forth in Annex II(B) hereto;
(e) Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx, counsel for the Company, shall have furnished to you their
written opinion, dated the Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Annex II(C) hereto, and such counsel may rely upon the opinion of New Jersey
counsel with respect to matters of New Jersey law;
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, each of
Deloitte & Touche LLP and KPMG LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto (the executed copy of the letter delivered prior to the execution of this
Agreement are attached as Annex I(A) hereto and forms of letters to be delivered on the effective
date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery
are attached as Annex I(B) hereto);
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements of the Company included or incorporated by reference in the
Pricing Prospectus and the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is material to the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given
in the Pricing Prospectus and the Prospectus there shall not have been any material change in the
capital stock or long term debt (which is debt with a maturity of a year or more) of the Company or
any of its subsidiaries or any material change in or affecting the business, business prospects,
management, or consolidated financial position, shareholders’ equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is
in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
-15-
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the 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, Alabama or New Jersey State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the declaration by the United
States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities on the terms and
in the manner contemplated in the Prospectus;
(j) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the
-16-
Act, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such action or claim within
30 days after receipt of invoicing for such expense; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim within 30 days after receipt of invoicing for such expenses.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection (except to the extent that the indemnifying party is materially prejudiced by reason of
such failure). In case any such action
-17-
shall be brought against any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying party), provided,
however, such indemnified party shall have the right to employ its own counsel in any such action
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party, unless: (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between
such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it
being understood, however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by the Representatives and that all
such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of
notice from the indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b)
-18-
above in respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the offering of the Securities.
If, however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnifying party was materially prejudiced as a result of the failure by
the indemnified party to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this subsection (d). The aggregate amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
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Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability
which the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be
in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which
it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or
other parties to purchase such Securities on the terms contained herein. If within thirty six
hours after such default by any Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty six hours within which to procure
another party or other parties satisfactory to you to purchase such Securities on such terms. In
the event that, within the respective prescribed periods, you notify the Company that you have so
arranged for the purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to postpone the Time
of Delivery for a period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any amendments or supplements to
the Registration Statement or the Prospectus which in your opinion may thereby be made necessary.
The term “Underwriter” as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does not exceed one
eleventh of the aggregate principal amount of all the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
-20-
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate principal amount of Securities which remains unpurchased exceeds one eleventh of the
aggregate principal amount of all the Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of
a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to
be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all out of pocket
expenses approved in writing by you, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery
of the Securities, but the Company shall then be under no further liability to any Underwriter
except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you jointly.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of each of: (a) Banc of America Securities LLC, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, Attention: High Grade Transaction Management/Legal, (b) Xxxxxxx, Xxxxx &
Co., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department, (c)
X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
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York, New York 10017, Attn: Investment Grade Syndicate Desk, and (d) Wachovia Capital Markets,
LLC, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attn: Transaction Management Group;
and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its
Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests, notices or agreements
shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the 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
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any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters, imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
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If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
| Very truly yours, VULCAN MATERIALS COMPANY |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxx | ||||
| Title: Senior Vice President
and Chief Financial Officer |
||||
Accepted as of the date hereof:
BANC OF AMERICA SECURITIES LLC,
XXXXXXX, XXXXX & CO.,
X.X. XXXXXX SECURITIES INC.,
WACHOVIA CAPITAL MARKETS, LLC
XXXXXXX, XXXXX & CO.,
X.X. XXXXXX SECURITIES INC.,
WACHOVIA CAPITAL MARKETS, LLC
By: |
/s/ Xxxx Xxxxx | |||
| Name: Xxxx Xxxxx | ||||
| Title: Principal | ||||
By: |
/s/ Xxxxxxx, Xxxxx & Co. | |||
By: |
/s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Vice President | ||||
By: |
/s/ Xxxxxxx Xxxx | |||
| Name: Xxxxxxx Xxxx | ||||
| Title: Vice President |
SCHEDULE I
| Principal Amount of Securities to be Purchased | ||||||||
| Underwriter | 6.30% Notes due 2013 | 7.00% Notes due 2018 | ||||||
Banc of America Securities LLC |
$ | 46,250,000 | $ | 74,000,000 | ||||
Xxxxxxx, Xxxxx & Co. |
46,250,000 | 74,000,000 | ||||||
X.X. Xxxxxx Securities Inc. |
46,250,000 | 74,000,000 | ||||||
Wachovia Capital Markets,
LLC |
46,250,000 | 74,000,000 | ||||||
Xxxxxx Xxxxxx & Company,
Inc. |
19,587,500 | 31,340,000 | ||||||
UBS Securities LLC |
19,587,500 | 31,340,000 | ||||||
Citigroup Global Markets Inc. |
8,750,000 | 14,000,000 | ||||||
Mizuho Securities USA Inc. |
8,750,000 | 14,000,000 | ||||||
Fifth Third Securities, Inc. |
4,162,500 | 6,660,000 | ||||||
The Xxxxxxxx Capital Group,
L.P. |
4,162,500 | 6,660,000 | ||||||
Total |
250,000,000 | 400,000,000 | ||||||
-1-
SCHEDULE II
(a) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
None.
(b) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None.
(c) Additional Documents Incorporated by Reference:
None.
Schedule III-1
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
June 17, 2008
Registration No. 333-147796
June 17, 2008
Vulcan Materials Company
6.300% Notes due June 15, 2013
6.300% Notes due June 15, 2013
Issuer:
|
Vulcan Materials Company | |
Note Type:
|
Senior Unsecured Notes | |
Ratings:
|
A3 / A- (Negative Outlook/Stable) | |
Type of Offering:
|
SEC Registered | |
Final Terms |
||
Principal Amount:
|
$250,000,000 | |
Benchmark:
|
3.500% due May 31, 2013 | |
Benchmark Yield:
|
3.648% | |
Re-offer Spread:
|
+270bps | |
Re-offer Yield:
|
6.348% | |
Coupon:
|
6.300% | |
Price to Public:
|
99.799% | |
Coupon Dates:
|
June 15 and December 15 | |
First Coupon Date:
|
December 15, 2008 | |
Trade Date:
|
June 17, 2008 | |
Settlement Date:
|
June 20, 2008 (T+3) | |
Maturity Date:
|
June 15, 2013 | |
Make Whole Call:
|
At any time at a discount rate of Treasury plus 45 bps |
CUSIP:
|
000000XX0 | |
ISIN:
|
US929160AJ88 | |
Bookrunners:
|
Banc of America Securities LLC Xxxxxxx, Xxxxx & Co. X.X. Xxxxxx Securities Inc. Wachovia Capital Markets, LLC |
|
Co-Managers:
|
Xxxxxx Xxxxxx & Company, Inc. UBS Securities LLC Citigroup Global Markets Inc. Mizuho Securities USA Inc. Fifth Third Securities, Inc. The Xxxxxxxx Capital Group, L.P. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC toll-free at
0-000-000-0000 or Xxxxxxx, Xxxxx & Co. toll-free at 1-866-471-2526.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-2-
Term Sheet
Filed Pursuant to Rule 433
Registration No. 333-147796
June 17, 2008
Registration No. 333-147796
June 17, 2008
Vulcan Materials Company
7.000% Notes due June 15, 2018
7.000% Notes due June 15, 2018
Issuer:
|
Vulcan Materials Company | ||
Note Type:
|
Senior Unsecured Notes | ||
Ratings:
|
A3 / A- (Negative Outlook/Stable) | ||
Type of Offering:
|
SEC Registered | ||
Final Terms |
|||
Principal Amount:
|
$400,000,000 | ||
Benchmark:
|
3.875% due May 15, 2018 | ||
Benchmark Yield:
|
4.215% | ||
Re-offer Spread:
|
+280bps | ||
Re-offer Yield:
|
7.015% | ||
Coupon:
|
7.000% | ||
Price to Public:
|
99.895% | ||
Coupon Dates:
|
June 15 and December 15 | ||
First Coupon Date:
|
December 15, 2008 | ||
Trade Date:
|
June 17, 2008 | ||
Settlement Date:
|
June 20, 2008 (T+3) | ||
Maturity Date:
|
June 15, 2018 | ||
Make Whole Call:
|
At any time at a discount rate of Treasury plus 45 bps | ||
CUSIP:
|
000000XX0 |
-3-
ISIN:
|
US929160AK51 | |
Bookrunners:
|
Banc of America Securities LLC Xxxxxxx, Xxxxx & Co. X.X. Xxxxxx Securities Inc. Wachovia Capital Markets, LLC |
|
Co-Managers:
|
Xxxxxx Xxxxxx & Company, Inc. UBS Securities LLC Citigroup Global Markets Inc. Mizuho Securities USA Inc. Fifth Third Securities, Inc. The Xxxxxxxx Capital Group, L.P. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents incorporated by reference in the registration
statement and filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Banc of America Securities LLC toll-free at
0-000-000-0000 or Xxxxxxx, Xxxxx & Co. toll-free at 1-866-471-2526.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
-4-
