VULCAN MATERIALS COMPANY
The
information in this preliminary prospectus supplement is not
complete and may be changed. This preliminary prospectus
supplement and the accompanying prospectus are not an offer to
sell these securities and are not soliciting an offer to buy
these securities, in any jurisdiction where the offer or sale is
not permitted.
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SUBJECT
TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT DATED JUNE 10, 2009
Filed Pursuant to
Rule 424(b)(2)
Registration
No. 333-147796
Prospectus Supplement to Prospectus dated December 3, 2007
11,500,000 Shares
VULCAN MATERIALS
COMPANY
Common Stock
We are offering 11,500,000 shares of our common stock, par
value $1.00 per share. The common stock is listed on the New
York Stock Exchange under the symbol VMC. The last
reported sale price of the common stock on June 10, 2009, was
$43.97 per share.
Investing in our common stock involves risks. See
Risk Factors beginning on
page S-6
of this prospectus supplement and Risk Factors in
our Annual Report on
Form 10-K
for the year ended December 31, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2009, which are
incorporated by reference herein, to read about factors you
should consider before buying our common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
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Per Share
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Total
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Public offering price
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$
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$
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Underwriting discounts and commissions
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$
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$
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Proceeds to Vulcan Materials Company (before expenses)
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$
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$
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To the extent the underwriters sell more than
11,500,000 shares of common stock, the underwriters have
the option to purchase up to an additional 1,725,000 shares
from us at the initial public offering price less the
underwriting discount.
The underwriters expect to deliver the common stock in
book-entry form only, through the facilities of The Depository
Trust Company, against payment in New York, New York on or about
June , 2009.
Joint Book-Running Managers
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Goldman,
Sachs & Co. |
Merrill Lynch & Co. |
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J.P.Morgan |
Wachovia Securities |
Prospectus Supplement dated June , 2009.
You should rely only on the information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. We have not authorized anyone to
provide you with different information. We are not making an
offer of these securities in any jurisdiction where the offer is
not permitted. You should not assume that the information
contained in this prospectus supplement or the accompanying
prospectus is accurate as of any date other than the date on the
front of this prospectus supplement.
TABLE OF
CONTENTS
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Page
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Prospectus Supplement
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S-ii
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S-1
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S-4
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S-6
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S-8
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S-9
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S-10
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S-13
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S-15
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S-19
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S-20
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S-20
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Prospectus
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1
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2
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27
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S-i
ABOUT THIS
PROSPECTUS SUPPLEMENT
This document consists of two parts. The first part is this
prospectus supplement, which describes the specific terms of
this offering. The second part is the accompanying prospectus,
which contains more general information, some of which may not
apply to this offering. You should read both this prospectus
supplement and the accompanying prospectus, together with the
documents identified under Where You Can Find More
Information and Incorporation by Reference of Certain
Documents in this prospectus supplement. If the
information set forth in this prospectus supplement differs in
any way from the information set forth in the accompanying
prospectus, you should rely on the information set forth in this
prospectus supplement.
You should rely only on the information contained in or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. This prospectus supplement and the
accompanying prospectus may be used only for the purpose for
which they have been prepared. We have not authorized any other
person to provide you with different information. If anyone
provides you with different or inconsistent information, you
should not rely on it.
We are not, and the underwriters are not, making an offer to
sell the common stock in any jurisdiction where the offer or
sale is not permitted. You should not assume that the
information appearing in this prospectus supplement, the
accompanying prospectus or any document incorporated by
reference is accurate as of any date other than the date of the
applicable document. Our business, financial condition, results
of operations and prospects may have changed since that date.
Neither this prospectus supplement nor the accompanying
prospectus constitutes an offer, or an invitation on our behalf
or on behalf of the underwriters, to subscribe for and purchase
any of the common stock and may not be used for or in connection
with an offer or solicitation by anyone, in any jurisdiction in
which such an offer or solicitation is not authorized or to any
person to whom it is unlawful to make such an offer or
solicitation.
S-ii
SUMMARY
Unless otherwise stated or the context otherwise requires,
references in this prospectus supplement to Vulcan,
the company, we, our, or
us refer to Vulcan Materials Company and its
consolidated subsidiaries.
The following summary highlights selected information
contained elsewhere in this prospectus supplement, the
accompanying prospectus and the documents incorporated by
reference in this prospectus supplement and may not contain all
the information you will need in making your investment
decision. You should carefully read this entire prospectus
supplement, the accompanying prospectus and the documents
incorporated by reference in this prospectus supplement and the
accompanying prospectus. You should pay special attention to
Risk Factors in this prospectus supplement and the
Risk Factors section in our Annual Report on
Form 10-K
for the year ended December 31, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2009, which are
incorporated by reference herein, to determine whether an
investment in our common stock is appropriate for you.
Vulcan Materials
Company
We provide infrastructure materials that are required by the
American economy. Headquartered in Birmingham, Alabama, we are
the nations largest producer of construction aggregates,
primarily crushed stone, sand and gravel, a major producer of
asphalt and concrete and a leading producer of cement in
Florida. We are a New Jersey corporation that was incorporated
on February 14, 2007.
Our common stock is traded on the New York Stock Exchange (the
NYSE) under the symbol VMC. Additional
information about Vulcan Materials Company and its subsidiaries
can be found in our documents filed with the Securities and
Exchange Commission (SEC), which are incorporated by
reference herein. See Where You Can Find More Information
and Incorporation by Reference of Certain Documents in
this prospectus supplement.
Our principal executive office is located at 1200 Urban Center
Drive, Birmingham, Alabama 35242, and our telephone number
is
(205) 298-3000.
Our website is located at
http://www.vulcanmaterials.com.
We do not incorporate the information on our website into, and
you should not consider it to be a part of, this prospectus
supplement or the accompanying prospectus.
Recent
Developments
Dividends on
common stock
In connection with this offering, we announced that our board of
directors intends to reduce the quarterly common stock dividend
to $0.25 from $0.49 per share, effective for the third quarter
of 2009. This reduction will increase cash available to the
company by approximately $100 million annually.
Outlook for
2009
Vulcan has updated its outlook for 2009.
Aggregates shipments in the second quarter of 2009 are expected
to be 27 to 32 percent lower than the second quarter of
2008 due to weak demand and unusually wet weather in key
markets. Second quarter aggregates prices are anticipated to
increase 4 to 5 percent from the same period in the prior
year. Shipments in the second half of 2009 are expected to
decline from the second half of 2008, but second half
comparisons should improve over first half comparisons as the
result of weather improvements and the initial impacts of
federal stimulus funds. We now expect full year 2009
S-1
aggregate shipments, including some projected incremental demand
in the second half of 2009 from the stimulus plan, to decline 17
to 20 percent from 2008 levels. Full year 2009 aggregates
prices should increase 4 to 5 percent from the 2008 levels,
reflecting stable price growth.
As a result of the foregoing factors, we estimate that second
quarter earnings from continuing operations will be in the range
of $0.15 to $0.30 per diluted share. For the second half of
2009, we estimate earnings of $0.85 to $1.00 per share, compared
to 2008 second half earnings of $0.65 per share. Full year 2009
earnings from continuing operations are expected to be in the
range of $0.70 to $1.00 per diluted share. These estimates do
not reflect the issuance of the common stock in this offering.
For the full year 2009, capital spending is expected to be
approximately $175 million, down sharply from the
$353 million spent in 2008. Debt reduction and achieving
target debt to total capital ratios of 35 to 40 percent remain a
priority use of cash flows, including the funds generated by
this offering and the proposed reduction in common stock
dividends. The company now expects to reduce total debt by
approximately $700 million during 2009 from proceeds of
this offering, cash flow from operations and the proposed
reduction in the common stock dividends.
The above estimates are subject to change, and actual results
may differ significantly from these estimates.
S-2
The
Offering
The following summary contains basic information about this
offering and is not intended to be complete. It does not contain
all the information that is important to you. For a more
complete understanding of the common stock, you should read the
section of this prospectus supplement entitled Description
of Capital Stock.
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Issuer |
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Vulcan Materials Company |
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Common stock offered by us |
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11,500,000 shares |
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Option to purchase additional shares |
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We have granted the underwriters an option to purchase up to an
additional 1,725,000 shares. |
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Common stock outstanding after this offering |
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122,056,089 shares (or 123,781,809 shares if the
option to purchase additional shares is exercised in full)(1) |
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Use of proceeds after expenses |
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Debt reduction and general corporate purposes, which may include
additional opportunities for strategic investment. |
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Dividends |
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For a description of our dividend policy, see Description
of Capital Stock Dividend Policy, Price
Range of Common Stock and Dividends and
Summary Recent Developments in this prospectus
supplement. |
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Risk factors |
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See Risk Factors and other information included or
incorporated by reference in this prospectus supplement and the
accompanying prospectus for a discussion of factors you should
consider carefully before deciding to invest in shares of our
common stock. |
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NYSE symbol |
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VMC |
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Registrant and transfer agent |
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The Bank of New York Mellon |
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(1) |
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The number of shares of common stock outstanding immediately
after the closing of this offering is based on
110,556,809 shares of common stock outstanding as of March
31, 2009 and excludes the following: 8,886,003 shares of
common stock underlying options, performance stock units and
deferred stock units outstanding as of March 31, 2009
granted under our equity compensation plans; and
2,232,697 shares of common stock reserved and available for
future issuance as of March 31, 2009 under our equity
compensation plans. |
S-3
FORWARD-LOOKING
STATEMENTS
This prospectus supplement and the accompanying prospectus,
including the documents we incorporate by reference, contain
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21E of the
Securities Exchange Act of 1934, as amended (the Exchange
Act). Generally, these statements relate to future
financial performance, results of operations, business plans or
strategies, projected or anticipated revenues, expenses,
earnings, or levels of capital expenditures. Often,
forward-looking statements can be identified by the use of words
such as anticipate, may,
believe, estimate, project,
expect, intend, and words of similar
import. In addition to the statements included in this
prospectus supplement, the accompanying prospectus and the
documents incorporated by reference herein, we may from time to
time make other oral or written forward-looking statements in
other filings under the Exchange Act or in other public
disclosures. These statements are subject to numerous risks,
uncertainties, and assumptions, including but not limited to
general business conditions, competitive factors, pricing,
energy costs, and other risks and uncertainties discussed in the
reports we periodically file with the SEC. These risks,
uncertainties, and assumptions may cause our actual results or
performance to be materially different from those expressed or
implied by the forward-looking statements. We caution
prospective investors that forward-looking statements are not
guarantees of future performance and that actual results,
developments, and business decisions could differ materially
from those expressed in or implied by the forward-looking
statements. All forward-looking statements are made as of the
date of filing or publication. We undertake no obligation to
publicly update or revise any forward-looking statements for any
reason, whether as a result of new information, future events or
otherwise.
In addition to the risk factors identified in this prospectus
supplement and our Annual Report on
Form 10-K
for the year ended December 31, 2008 and our Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009,
which are incorporated by reference herein, the following
assumptions, risks and uncertainties related to our business,
among others, could cause actual results to differ materially
from those described in or contemplated by the forward-looking
statements:
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general economic and business conditions;
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changes in interest rates;
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the timing and amount of federal, state and local funding for
infrastructure;
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changes in the level of spending for residential and private
nonresidential construction;
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the highly competitive nature of the construction materials
industry;
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the impact of future regulatory or legislative action;
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the outcome of pending legal proceedings;
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pricing of our products;
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our ability to secure and permit aggregate reserves in
strategically located areas;
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weather and other natural phenomena;
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energy costs;
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costs of hydrocarbon-based raw materials;
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healthcare costs;
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the timing and amount of any future payments to be received
under the 5CP earn-out contained in the agreement for the
divestiture of our chemicals business;
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our ability to manage and successfully integrate acquisitions;
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S-4
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the risks and uncertainties related to the acquisition of
Florida Rock including our ability to successfully integrate the
operations of Florida Rock and to achieve the anticipated cost
savings and operational synergies;
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the possibility that business may suffer because
managements attention is diverted to integration concerns;
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the impact of the global financial crisis on our business and
financial condition;
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our ability to estimate the magnitude and timing of construction
spending related to the federal economic stimulus plan signed
into law on February 17, 2009;
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our ability to successfully complete the announced common stock
offering; and
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other assumptions, risks and uncertainties detailed from time to
time in our filings made with the SEC.
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Investors are cautioned not to rely unduly on such
forward-looking statements when evaluating the information
presented in our filings, and are advised to consult our future
disclosures in filings made with the SEC and our press releases
with regard to our business and consolidated financial position,
results of operations and cash flows.
S-5
RISK
FACTORS
Any investment in our common stock will involve risks. You
should carefully consider the following risks, together with the
information included in or incorporated by reference in this
prospectus supplement and the accompanying prospectus before
deciding whether an investment in our common stock is suitable
for you. In addition to the risk factors set forth below, we
specifically refer you to the Risk Factors sections
in our Annual Report on
Form 10-K
for the year ended December 31, 2008 and our Quarterly
Report on
Form 10-Q
for the quarter ended March 31, 2009, which are
incorporated by reference herein. If any of these risks actually
occurs, our business, results of operations or financial
condition could be materially and adversely affected. In such an
event, the trading price of our common stock could decline, and
you might lose all or part of your investment.
Risks Related to
an Investment in our Common Stock
The price of
our common stock may fluctuate significantly, which may make it
difficult for you to resell shares of common stock owned at
times or at prices you find attractive.
Our common stock price may fluctuate as a result of a variety of
factors, many of which are beyond our control. These factors
include those described in Forward-Looking
Statements. Since January 1, 2009, the closing sale
price of our shares of common stock on the NYSE has ranged from
$34.55 to $69.95 per share. In recent years, the stock market in
general has experienced extreme price and volume fluctuations.
This volatility has had a significant effect on the market price
of securities issued by many companies, including for reasons
unrelated to their operating performance. These broad market
fluctuations may adversely affect the price of our common stock,
notwithstanding our operating results. We expect that the market
price of our common stock will continue to fluctuate and there
can be no assurances about the levels of the market price for
our common stock.
There may be
future sales or other dilution of our equity, which may
adversely affect the market price of our common
stock.
Except as described under Underwriting below, we are
not restricted from issuing additional common stock, including
any securities that are convertible into or exchangeable for, or
that represent the right to receive, common stock. The issuance
of any additional shares of common stock or preferred stock or
securities convertible into, exchangeable for or that represent
the right to receive common stock or the exercise of such
securities could be substantially dilutive to shareholders of
our common stock. Holders of our shares of common stock have no
preemptive rights that entitle holders to purchase their pro
rata share of any offering of shares of any class or series. The
market price of our common stock could decline as a result of
sales of shares of our common stock made after this offering or
the perception that such sales could occur. Because our decision
to issue securities in any future offering will depend on market
conditions and other factors beyond our control, we cannot
predict or estimate the amount, timing or nature of our future
offerings. Thus, our shareholders bear the risk that future
offerings will reduce the market price of our common stock and
dilute their stock holdings in us.
You may not
receive dividends on the common stock.
Holders of our common stock are only entitled to receive such
dividends as our board of directors may declare out of funds
legally available for such payments. Furthermore, holders of our
common stock may be subject to the prior dividend rights of
holders of our preferred stock or depositary shares representing
such preferred stock, if any, then outstanding. Our ability to
pay dividends will be subject to our future earnings, capital
requirements and financial condition, as well as our compliance
with covenants and financial ratios related to existing or
future indebtedness. Although we have historically declared cash
dividends on our common stock, we are not required to do so and
our board of directors may reduce, defer or eliminate our common
stock dividend in the future. In connection with this offering,
we announced that our board of directors intends to reduce any
quarterly
S-6
common stock dividend to $0.25 per share from
$0.49 per share, effective for the third quarter of 2009.
We may make
additional offerings of debt that would be senior to our common
stock upon liquidation and/or preferred equity securities that
may be senior to our common stock for purposes of dividend
distributions or upon liquidation, which may adversely affect
the market price of our common stock.
We may make additional offerings of debt or preferred equity
securities, including medium-term notes, trust preferred
securities, senior or subordinated notes and preferred stock.
Upon liquidation, holders of our debt securities and shares of
preferred stock and lenders with respect to other borrowings
will receive distributions of our available assets prior to the
holders of our common stock. If we issue preferred stock in the
future that has a preference over our common stock with respect
to the payment of dividends or upon our liquidation,
dissolution, or winding up, or if we issue preferred stock with
voting rights that dilute the voting power of our common stock,
the rights of holders of our common stock or the market price of
our common stock could be adversely affected.
Anti-takeover
laws and certain charter provisions may adversely affect the
market price of our common stock.
Certain provisions of New Jersey law and our restated
certificate of incorporation may make it more difficult for
someone to acquire control of us without our board of
directors approval, as described in this prospectus
supplement under Description of Capital Stock.
S-7
USE OF
PROCEEDS
We expect to receive net proceeds, after deducting underwriting
discounts but before deducting other offering expenses, of
approximately $ (or approximately
$ if the underwriters exercise
their option to purchase additional shares in full) from this
offering. We intend to use the net proceeds for debt reduction
and general corporate purposes, which may include additional
opportunities for strategic investment.
Our five-year credit facility matures in November 2012. At
June 9, 2009, we had approximately $735 million in
borrowings under that facility at an interest rate of 0.62% per
year. We also had approximately $121 million in outstanding
commercial paper at such date, with a weighted average interest
rate of 0.70% per year.
For certain relationships between us and the underwriters and
their affiliates, see Underwriting.
S-8
PRICE RANGE OF
COMMON STOCK AND DIVIDENDS
Our common stock is listed and traded on the NYSE under the
symbol VMC. As of March 31, 2009, we had
110,556,809 shares of our common stock issued and
outstanding.
The following table sets forth for the periods indicated the
high and low reported sales prices of our common stock on the
NYSE, and the cash dividends declared per share during such
periods.
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Dividends
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High
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Low
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Declared
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Sale Price
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Sale Price
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per Share
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2009:
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Second Quarter (through June 10, 2009)
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$
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53.94
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$
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39.65
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$
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0.49
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First Quarter
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$
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71.26
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$
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34.30
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$
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0.49
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2008:
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Fourth Quarter
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$
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77.95
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$
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39.52
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$
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0.49
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Third Quarter
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$
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100.25
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$
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49.39
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$
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0.49
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Second Quarter
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$
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84.73
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$
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59.26
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$
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0.49
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First Quarter
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$
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79.75
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$
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60.20
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$
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0.49
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2007:
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Fourth Quarter
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$
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96.09
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$
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77.04
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$
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0.46
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Third Quarter
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$
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116.52
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$
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80.50
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$
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0.46
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Second Quarter
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$
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128.62
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$
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111.46
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$
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0.46
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First Quarter
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$
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125.79
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$
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87.27
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$
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0.46
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On June 10, 2009, the last reported sale price of our common
stock on the NYSE was $43.97 per share.
Holders of our common stock are only entitled to receive such
dividends as our board of directors may declare out of funds
legally available for such payments. In addition, holders of our
common stock may be subject to the prior dividend rights of
holders of our preferred stock or depositary shares representing
such preferred stock, if any, then outstanding. On May 8,
2009, our board of directors declared a quarterly dividend of
$0.49 per share, payable June 10, 2009, to shareholders of
record as of May 26, 2009. In connection with this
offering, we announced that our board of directors intends to
reduce any quarterly common stock dividend to $0.25 per
share from $0.49 per share, effective for the third quarter
of 2009.
S-9
DESCRIPTION OF
CAPITAL STOCK
Our authorized capital stock consists of 480,000,000 shares
of common stock, $1.00 par value, and 5,000,000 shares
of preference stock, without par value. The following summary is
qualified in its entirety by the provisions of our certificate
of incorporation and by-laws, which are incorporated by
reference as exhibits to the registration statement of which the
accompanying prospectus constitutes a part.
Common
Stock
This section describes the general terms of our common stock.
For more detailed information, you should refer to our
certificate of incorporation and bylaws, copies of which have
been filed with the SEC. These documents are also incorporated
by reference as exhibits to the registration statement of which
the accompanying prospectus constitutes a part.
The holders of common stock are entitled to one vote per share
on all matters to be voted upon by the shareholders. Subject to
preferences that may be applicable to any outstanding preference
stock, the holders of common stock are entitled to receive
ratably such dividends, if any, as may be declared from time to
time by our board of directors out of funds legally available.
See Dividend Policy. In the event of our
liquidation, dissolution or winding up, the holders of common
stock are entitled to share ratably in all assets remaining
after payment of liabilities, subject to prior liquidation
rights of preference stock, if any, then outstanding. The common
stock has no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund
provisions applicable to the common stock. All shares of common
stock to be outstanding upon the completion of any common stock
offering will be fully paid and non-assessable.
The rights under our shareholder rights agreement with The Bank
of New York, as rights agent, expired on November 15, 2008,
and the expiration date of the rights has not been extended.
The transfer agent for the common stock is The Bank of New York
Mellon.
Preference
Stock
Our board of directors has been authorized to provide for the
issuance of shares of our preference stock in multiple series
without the approval of shareholders. With respect to each
series of our preference stock, our board of directors has the
authority to fix the following terms:
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the designation of the series;
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the number of shares within the series;
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whether dividends are cumulative and, if cumulative, the dates
from which dividends are cumulative;
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the rate of any dividends, any conditions upon which dividends
are payable, and the dates of payment of dividends;
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whether the shares are redeemable, the redemption price and the
terms of redemption;
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the establishment of a sinking fund, if any, for the purchase or
redemption of shares;
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the amount payable to holders for each share owned if we
dissolve or liquidate;
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whether the shares are convertible or exchangeable, the price or
rate of conversion or exchange, and the applicable terms and
conditions;
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any restrictions on issuance of shares in the same series or any
other series;
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any voting rights applicable to the series of preference stock;
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S-10
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the seniority or parity of the dividends or right to assets of
the series with respect to other series of preference stock;
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whether the holders will be entitled to any preemptive or
preferential rights to purchase additional securities; and
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any other rights, preferences or limitations of such series.
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Rights with respect to shares of preference stock will be
subordinate to the rights of our general creditors. Shares of
our preference stock that we issue will be fully paid and
nonassessable, and will not be entitled to preemptive rights
unless specified by our board of directors.
Our ability to issue preference stock, or rights to purchase
such shares, could discourage an unsolicited acquisition
proposal. In addition, we could impede a business combination by
issuing a series of preference stock containing class voting
rights that would enable the holders of such preference stock to
block a business combination transaction. Alternatively, we
could facilitate a business combination transaction by issuing a
series of preference stock having sufficient voting rights to
provide a required percentage vote of the shareholders.
Additionally, under certain circumstances, our issuance of
preference stock could adversely affect the voting power of the
holders of our common stock. Although our board of directors is
required to make any determination to issue any preference stock
based on its judgment as to the best interests of our
shareholders, our board of directors could act in a manner that
would discourage an acquisition attempt or other transaction
that some, or a majority, of our shareholders might believe to
be in their best interests or in which shareholders might
receive a premium for their stock over prevailing market prices
of such stock. Our board of directors does not at present intend
to seek shareholder approval prior to any issuance of currently
authorized stock, unless otherwise required by law or applicable
NYSE requirements.
Dividend
Policy
Our policy is to pay out a reasonable share of net cash provided
by operating activities as dividends, consistent on average with
the payout record of past years, and consistent with the goal of
maintaining debt ratios within prudent and generally acceptable
limits. Future cash dividends, if any, will be at the discretion
of our board of directors and will depend upon, among other
things, our future operations and earnings, capital
requirements, general financial condition, contractual
restrictions and such other factors as the board of directors
may deem relevant. In connection with this offering, we
announced that our board of directors intends to reduce any
quarterly common stock dividend to $0.25 per share from
$0.49 per share, effective for the third quarter of 2009.
Special Charter
Provision
Our certificate of incorporation contains a fair
price provision that applies to certain business
combinations (as defined in our certificate of incorporation)
involving any person that (1) beneficially owns at least
10% of the aggregate voting power of our outstanding capital
stock entitled to vote thereon (Voting Stock),
(2) is our affiliate and has been the beneficial owner of
at least 10% of our Voting Stock at any time in the past two
years, or (3) is any assignee of Voting Stock from such an
interested person (each of these an Interested
Shareholder). The fair price provision
requires the affirmative vote of the holders of at least 80% of
our Voting Stock to approve any such business combination.
This voting requirement will not apply to certain business
combinations, including:
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any business combination in which (A) the aggregate amount
of consideration other than cash to be received by the holders
of each class of our Voting Stock in such business combination
is at least equal to the highest of: (1) the highest price
per share paid by the Interested Shareholder for shares of
Voting Stock of the same class on the date the person first
became an Interested Shareholder; (2) the highest price per
share paid by the Interested Shareholder for any shares of
Voting Stock of such class, which purchase was consummated in
the two years prior to and ending with the announcement date (as
defined in our certificate of incorporation); or (3) the
fair market value (as defined in our certificate of
incorporation) per share of the Voting Stock of the
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S-11
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same class on the announcement date or the date on which the
person first became an Interested Shareholder, whichever is
higher; (B) after such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
business combination, there shall have been (1) no
reduction in the annual rate of dividends paid on the Voting
Stock except as approved by a majority of continuing directors
(as defined in our certificate of incorporation) and (2) an
increase in such annual rate of dividends as necessary to
reflect any reclassification, recapitalization, reorganization
or any similar transaction which has the effect of reducing the
number of outstanding shares of the Voting Stock, unless the
failure to increase such annual rate is approved by a majority
of the continuing directors; (C) after such Interested
Shareholder has become an Interested Shareholder and prior to
the announcement date, such Interested Shareholder shall not
have become the beneficial owner of any additional shares of
Voting Stock except in a transaction complying with the
requirements for tender offers in Section 14(D) of the
Exchange Act; (D) after such Interested Shareholder has
become an Interested Shareholder, such Interested Shareholder
shall not have received the benefit, directly or indirectly, of
any financial assistance provided by the company, whether in
anticipation of or in connection with such business combination
or otherwise, subject to certain exceptions, and (E) an
information statement describing the proposed business
combination and complying with the requirements of
Section 14(c) of the Exchange Act, or if required, a proxy
statement, shall be mailed to all shareholders of the company at
least 30 days prior to the consummation of such business
combination; or
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any business combination that is approved by a majority of our
continuing directors.
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This provision could have the effect of delaying or preventing a
change in control in a transaction or series of transactions
that did not satisfy the fair price criteria.
The provisions of our certificate of incorporation relating to
the fair price provision may be amended only by the
affirmative vote of the holders of at least 80% of the voting
power of our Voting Stock.
New Jersey
Anti-Takeover Statute
New Jersey has adopted a type of anti-takeover statute known as
a business combination statute. Subject to numerous
qualifications and exceptions, the statute prohibits an
interested shareholder of a corporation from effecting a
business combination with the corporation for a period of five
years unless the corporations board approved the
combination prior to the shareholder becoming an interested
shareholder. In addition, but not in limitation of the five-year
restriction, if applicable, corporations such as Vulcan covered
by the New Jersey statute may not engage at any time in a
business combination with any interested shareholder of that
corporation unless the combination is approved by the board
prior to the interested shareholders stock acquisition
date, the combination receives the approval of two-thirds of the
voting stock of the corporation not beneficially owned by the
interested shareholder, or the combination meets minimum
financial terms specified by the statute. An interested
shareholder for this purpose is defined to include any
beneficial owner of 10% or more of the voting power of the
outstanding voting stock of the corporation or an affiliate or
associate of the company who within the prior five-year period
has at any time owned 10% or more of the voting power. The term
business combination is defined broadly to include,
among other things:
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the merger or consolidation of the corporation with the
interested shareholder or any corporation that after the merger
or consolidation would be an affiliate or associate of the
interested shareholder;
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the sale, lease, exchange, mortgage, pledge, transfer or other
disposition to an interested shareholder or any affiliate or
associate of the interested shareholder of 10% or more of the
corporations assets; or
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the issuance or transfer to an interested shareholder or any
affiliate or associate of the interested shareholder of 5% or
more of the aggregate market value of the stock of the
corporation.
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S-12
CERTAIN UNITED
STATES TAX CONSEQUENCES
TO NON-U.S.
HOLDERS OF COMMON STOCK
This section summarizes the material United States federal
income and estate tax consequences of the ownership and
disposition of our common stock by a
non-U.S. holder
who holds the common stock as a capital asset. You are a
non-U.S. holder
if you are, for United States federal income tax purposes:
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a nonresident alien individual;
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a foreign corporation; or
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an estate or trust that in either case is not subject to United
States federal income tax on a net income basis on income or
gain from common stock.
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This section does not consider the specific facts and
circumstances that may be relevant to a particular
non-U.S. holder
(including non-U.S. holders that are subject to special
treatment under the United States federal income tax laws, such
as United States expatriates) and does not address the treatment
of a
non-U.S. holder
under the laws of any state, local or foreign taxing
jurisdiction. This section is based on the tax laws of the
United States, including the Internal Revenue Code of 1986,
as amended, existing and proposed regulations, and
administrative and judicial interpretations, all as currently in
effect. These laws are subject to change, possibly on a
retroactive basis.
If a partnership holds the common stock, the United States
federal income tax treatment of a partner will generally depend
on the status of the partner and the tax treatment of the
partnership. A partner in a partnership holding the common stock
should consult its tax advisor with regard to the United States
federal income tax treatment of an investment in the common
stock.
You should consult a tax advisor regarding the United States
federal tax consequences of acquiring, holding and disposing of
common stock in your particular circumstances, as well as any
tax consequences that may arise under the laws of any state,
local or foreign taxing jurisdiction.
Dividends
Except as described below, if you are a
non-U.S. holder
of our common stock, dividends paid to you are subject to
withholding of United States federal income tax at a 30% rate or
at a lower rate if you are eligible for the benefits of an
income tax treaty that provides for a lower rate. Even if you
are eligible for a lower treaty rate, we and other payors will
generally be required to withhold at a 30% rate (rather than the
lower treaty rate) on dividend payments to you, unless you have
furnished to us or another payor:
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a valid Internal Revenue Service
Form W-8BEN
or an acceptable substitute form upon which you certify, under
penalties of perjury, your status as (or, in the case of a
non-U.S. holder that is an estate or trust, such forms
certifying the status of each beneficiary of the estate or trust
as) a
non-United
States person and your entitlement to the lower treaty rate with
respect to such payments; or
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in the case of payments made outside the United States to an
offshore account (generally, an account maintained by you at an
office or branch of a bank or other financial institution at any
location outside the United States), other documentary evidence
establishing your entitlement to the lower treaty rate in
accordance with U.S. Treasury regulations.
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If you are eligible for a reduced rate of United States
withholding tax under a tax treaty, you may obtain a refund of
any amounts withheld in excess of that rate by filing a refund
claim with the Internal Revenue Service.
If dividends paid to you are effectively connected
with your conduct of a trade or business within the United
States, and, if required by a tax treaty, the dividends are
attributable to a permanent establishment that you maintain in
the United States, we and other payors generally are not
required
S-13
to withhold tax from the dividends, provided that you have
furnished to us or another payor a valid Internal Revenue
Service
Form W-8ECI
or an acceptable substitute form upon which you certify, under
penalties of perjury, that:
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you are a
non-United
States person; and
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the dividends are effectively connected with your conduct of a
trade or business within the United States and are includible in
your gross income.
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Effectively connected dividends are taxed at rates
applicable to United States citizens, resident aliens and
domestic United States corporations.
If you are a corporate
non-U.S. holder,
effectively connected dividends that you receive
may, under certain circumstances, be subject to an additional
branch profits tax at a 30% rate or at a lower rate
if you are eligible for the benefits of an income tax treaty
that provides for a lower rate.
Gain on
Disposition of Common Stock
If you are a
non-U.S. holder,
you generally will not be subject to United States federal
income tax on gain that you recognize on a disposition of common
stock unless:
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the gain is effectively connected with your conduct
of a trade or business in the United States, and the gain
is attributable to a permanent establishment that you maintain
in the United States, if that is required by an applicable
income tax treaty as a condition for subjecting you to United
States taxation on a net income basis;
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you are an individual, you hold the common stock as a capital
asset, you are present in the United States for 183 or more days
in the taxable year of the disposition and certain other
conditions exist; or
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we are or have been a United States real property holding
corporation for United States federal income tax purposes and
you held, directly or indirectly, at any time during the
five-year period ending on the date of disposition (or, if
shorter, your holding period for the common stock), more than 5%
of the common stock and you are not eligible for any treaty
exemption.
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If you are a corporate
non-U.S. holder,
effectively connected gains that you recognize may
also, under certain circumstances, be subject to an additional
branch profits tax at a 30% rate or at a lower rate
if you are eligible for the benefits of an income tax treaty
that provides for a lower rate.
Federal Estate
Taxes
Common stock held by an individual
non-U.S. holder
at the time of death will be included in the holders gross
estate for United States federal estate tax purposes, unless an
applicable estate tax treaty provides otherwise.
Backup
Withholding and Information Reporting
In general (and except as described below), backup withholding
and information reporting will not apply to a distribution of
dividends on our common stock paid to you, or to the proceeds
from the disposition of the common stock by you, in each case,
if you certify, under penalties of perjury, that you are a
non-United
States person and the payor does not have actual knowledge or
reason to know to the contrary. In general, if your common stock
is not held through a qualified intermediary, the amount of
dividends, the name and address of the beneficial owner and the
amount, if any, of tax withheld may be reported to the Internal
Revenue Service. Any amounts withheld under the backup
withholding rules will be allowed as a credit against your
United States federal income tax liability, provided the
required information is timely furnished to the Internal Revenue
Service.
S-14
UNDERWRITING
We and the underwriters named below have entered into an
underwriting agreement with respect to the shares of common
stock being offered. Subject to certain conditions, each
underwriter has severally agreed to purchase the number of
shares indicated in the following table. Goldman,
Sachs & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, J.P. Morgan Securities Inc. and Wachovia
Capital Markets, LLC are acting as joint book-running managers
of this offering and as the representatives of the underwriters.
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Underwriters
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Number of Shares
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Goldman, Sachs & Co.
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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J.P. Morgan Securities Inc.
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Wachovia Capital Markets, LLC
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Total
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11,500,000
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The underwriters are committed to take and pay for all of the
shares of common stock being offered other than the shares
covered by the option described below unless and until this
option is exercised.
If the underwriters sell more shares of common stock than the
total number set forth in the table above, the underwriters have
an option to buy up to an additional 1,725,000 shares of
common stock from us. They may exercise that option for
30 days. If any shares are purchased pursuant to this
option, the underwriters will severally purchase shares in
approximately the same proportion as set forth in the table
above.
The following table shows the per share and total underwriting
discounts and commissions to be paid to the underwriters by us.
These amounts are shown assuming both no exercise and full
exercise of the underwriters option to purchase
1,725,000 additional shares.
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Paid by the Company
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No Exercise
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Full Exercise
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Per Share
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$
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$
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Total
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$
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$
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Shares sold by the underwriters to the public will initially be
offered at the initial price to the public set forth on the
cover of this prospectus supplement. Any shares sold by the
underwriters to securities dealers may be sold at a discount of
up to $ per share from the initial
public offering price. If all the shares are not sold at the
initial public offering price, the representatives may change
the offering price and the other selling terms. The offering of
the shares by the underwriters is subject to receipt and
acceptance and subject to the underwriters right to reject
any order in whole or in part.
We and our executive officers and our directors each have agreed
with the underwriters, subject to certain exceptions, not to
dispose of or hedge any of our respective shares of common stock
or securities convertible into or exchangeable for shares of
common stock during the period from the date of this prospectus
supplement continuing through the date 90 days after the
date of this prospectus supplement, except with the prior
written consent of Goldman, Sachs & Co. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
In connection with this offering, the underwriters may purchase
and sell shares of common stock in the open market. These
transactions may include short sales, stabilizing transactions
and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriters of a greater number
of shares than they are required to purchase in this offering.
Covered short sales are sales made in an amount not
greater than the underwriters option to purchase
additional shares from us in this offering. The underwriters may
close out any covered short position by either exercising their
option to purchase additional shares or purchasing shares in the
open market. In
S-15
determining the source of shares to close out the covered short
position, the underwriters will consider, among other things,
the price of shares available for purchase in the open market as
compared to the price at which they may purchase additional
shares pursuant to the option granted to them. Naked
short sales are any sales in excess of such option. The
underwriters must close out any naked short position by
purchasing shares in the open market. A naked short position is
more likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the common stock
in the open market after pricing that could adversely affect
investors who purchase in this offering. Stabilizing
transactions consist of various bids for or purchases of shares
of common stock made by the underwriters in the open market
prior to the completion of this offering.
The underwriters may also impose a penalty bid. This occurs when
a particular underwriter repays to the underwriters a portion of
the underwriting discount received by it because the
representatives have repurchased shares sold by or for the
account of such underwriter in stabilizing or short covering
transactions.
Purchases to cover a short position and stabilizing
transactions, as well as other purchases by the underwriters for
their own accounts, may have the effect of preventing or
retarding a decline in the market price of our common stock, and
together with the imposition of the penalty bid, may stabilize,
maintain or otherwise affect the market price of the common
stock. As a result, the price of the common stock may be higher
than the price that otherwise might exist in the open market. If
these activities are commenced, they may be discontinued at any
time. These transactions may be effected on the NYSE, in the
over-the-counter
market or otherwise.
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a Relevant
Member State), each underwriter has represented and agreed that
with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the
Relevant Implementation Date) it has not made and will not make
an offer of shares to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the
shares which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from
and including the Relevant Implementation Date, make an offer of
shares to the public in that Relevant Member State at any time:
(a) to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(b) to any legal entity which has two or more of
(1) an average of at least 250 employees during the
last financial year; (2) a total balance sheet of more than
43,000,000 and (3) an annual net turnover of more
than 50,000,000, as shown in its last annual or
consolidated accounts;
(c) to fewer than 100 natural or legal persons (other than
qualified investors as defined in the Prospectus Directive)
subject to obtaining the prior consent of the representatives
for any such offer; or
(d) in any other circumstances which do not require the
publication by the Issuer of a prospectus pursuant to
Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an
offer of shares to the public in relation to any
shares in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms
of the offer and the shares to be offered so as to enable an
investor to decide to purchase or subscribe the shares, as the
same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member
State and the expression Prospectus Directive means Directive
2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
S-16
Each underwriter has represented and agreed that:
(a) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services
and Markets Act (FSMA)) received by it in connection
with the issue or sale of the shares in circumstances in which
Section 21(1) of the FSMA does not apply to the
Issuer; and
(b) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the shares in, from or otherwise involving the
United Kingdom.
The shares may not be offered or sold by means of any document
other than (1) in circumstances which do not constitute an
offer to the public within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), or (2) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (3) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the shares may be issued or
may be in the possession of any person for the purpose of issue
(in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to
shares which are or are intended to be disposed of only to
persons outside Hong Kong or only to professional
investors within the meaning of the Securities and Futures
Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder.
This prospectus supplement and the accompanying prospectus have
not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, this prospectus supplement and the
accompanying prospectus and any other document or material in
connection with the offer or sale, or invitation for
subscription or purchase, of the shares may not be circulated or
distributed, nor may the shares be offered or sold, or be made
the subject of an invitation for subscription or purchase,
whether directly or indirectly, to persons in Singapore other
than (1) to an institutional investor under
Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the SFA), (2) to
a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA or (3) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the shares are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
The securities have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan (the
Financial Instruments and Exchange Law) and each underwriter has
agreed that it will not offer or sell any securities, directly
or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person
resident in Japan, including any corporation or other entity
organized under the laws of Japan), or to others for re-offering
or resale, directly or indirectly, in Japan or to a resident of
Japan, except pursuant to an exemption from
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the registration requirements of, and otherwise in compliance
with, the Financial Instruments and Exchange Law and any other
applicable laws, regulations and ministerial guidelines of Japan.
This prospectus supplement and the accompanying prospectus as
well as any other material relating to the shares which are the
subject of the offering contemplated by this prospectus do not
constitute an issue prospectus pursuant to Article 652a of
the Swiss Code of Obligations. The shares will not be listed on
the SWX Swiss Exchange and, therefore, the documents relating to
the shares, including, but not limited to, this prospectus
supplement and the accompanying prospectus, do not claim to
comply with the disclosure standards of the listing rules of SWX
Swiss Exchange and corresponding prospectus schemes annexed to
the listing rules of the SWX Swiss Exchange. The shares are
being offered in Switzerland by way of a private placement, i.e.
to a small number of selected investors only, without any public
offer and only to investors who do not purchase the shares with
the intention to distribute them to the public. The investors
will be individually approached by the company from time to
time. This prospectus supplement and the accompanying prospectus
as well as any other material relating to the shares are
personal and confidential and do not constitute an offer to any
other person. This document may only be used by those investors
to whom it has been handed out in connection with the offering
described herein and may neither directly nor indirectly be
distributed or made available to other persons without express
consent of the company. It may not be used in connection with
any other offer and shall in particular not be copied
and/or
distributed to the public in (or from) Switzerland.
This prospectus supplement and the accompanying prospectus
relate to an exempt offer in accordance with the Offered
Securities Rules of the Dubai Financial Services Authority. This
prospectus supplement and the accompanying prospectus are
intended for distribution only to persons of a type specified in
those rules. It must not be delivered to, or relied on by, any
other person. The Dubai Financial Services Authority has no
responsibility for reviewing or verifying any documents in
connection with exempt offers. The Dubai Financial Services
Authority has not approved this prospectus supplement and the
accompanying prospectus nor taken steps to verify the
information set out in them, and has no responsibility for them.
The shares which are the subject of the offering contemplated by
this prospectus may be illiquid
and/or
subject to restrictions on their resale. Prospective purchasers
of the shares offered should conduct their own due diligence on
the shares. If you do not understand the contents of this
prospectus supplement and the accompanying prospectus you should
consult an authorised financial adviser.
We estimate that our total expenses of this offering, excluding
underwriting discounts and commissions, will be approximately
$ .
We and the underwriters have agreed to indemnify or contribute
payments to each other against certain liabilities, including
liabilities under the Securities Act.
Certain of the underwriters and their respective affiliates
have, from time to time, performed, and may in the future
perform, various financial advisory and investment banking
services for us, for which they have received or will receive
customary fees and expenses. Affiliates of each of the
representatives and certain of the other underwriters are
lenders under various of our credit agreements and will receive
a portion of the proceeds of this offering. In addition,
affiliates of Goldman, Sachs & Co. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated are dealers in our
commercial paper program, and an affiliate of J.P. Morgan
Securities Inc. is the issuing and paying agent for that
program. Because it is possible that the underwriters or their
affiliated or associated persons could receive more than 10
percent of the proceeds of this offering, not including
underwriting discounts and commissions, as repayment of such
loans, this offering will be conducted in accordance with Rule
5110(h) of the Financial Industry Regulatory Authority, Inc.
Donald M. James, our chairman and chief executive officer, and
Donald B. Rice, one of our independent directors, are directors
of Wells Fargo & Company, an affiliate of Wachovia Capital
Markets, LLC, one of the underwriters.
S-18
WHERE YOU CAN
FIND MORE INFORMATION AND
INCORPORATION BY REFERENCE OF CERTAIN DOCUMENTS
Vulcan files annual, quarterly and current reports, proxy
statements and other information with the SEC. You may obtain
any document we file with the SEC at the SECs public
reference room at 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. You may obtain information on the
operation of the SECs public reference facilities by
calling the SEC at
1-800-SEC-0330.
You can request copies of these documents, upon payment of a
duplicating fee, by writing to the SEC. Our SEC filings are also
accessible through the Internet at the SECs web site at
http://www.sec.gov
and through the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The SEC permits us to incorporate by reference into
this prospectus supplement the information in documents we file
with it, which means that we can disclose important information
to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this
prospectus supplement, and later information that we file with
the SEC will update and supersede any information contained in
this prospectus supplement or incorporated by reference in this
prospectus supplement. We incorporate by reference the documents
listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
until the offering of the securities by means of this prospectus
supplement is terminated.
These documents contain important business and financial
information about us that is not included in or delivered with
this prospectus supplement or the accompanying prospectus.
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Vulcan Materials Company
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(File No. 001-33841) (Formerly
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Virginia Holdco, Inc.)
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Period
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Annual Report on Form 10-K
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Fiscal year ended December 31, 2008
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Quarterly Reports on Form 10-Q
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Quarter ended March 31, 2009
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Current Reports on Form 8-K
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November 16, 2007 (the description of our common stock is
contained in this filing, which is also the filing pursuant to
which our common stock is deemed registered pursuant to
Section 12(b) of the Exchange Act), as revised by our
Current Report on
Form 8-K/A
filed on November 21, 2007
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Current Reports on
Form 8-K
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Filed January 29, 2009, February 19, 2009,
February 27, 2009, March 25, 2009 and April 1,
2009
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To the extent that any information contained in any Current
Report on
Form 8-K,
or any exhibit thereto, was or is furnished, rather than filed
with, the SEC, such information or exhibit is specifically not
incorporated by reference into this document.
If you request a copy of any or all of the documents
incorporated by reference, we will send to you the copies you
requested at no charge. However, we will not send exhibits to
such documents, unless such exhibits are specifically
incorporated by reference in such documents. You should direct
requests for such copies to Vulcan Materials Company, 1200 Urban
Center Drive, Birmingham, Alabama 35242, Attention: Jerry F.
Perkins, Jr., Secretary.
S-19
EXPERTS
The consolidated financial statements and the related financial
statement schedule, incorporated in this prospectus supplement
by reference from Vulcans Annual Report on
Form 10-K
for the year ended December 31, 2008, and the effectiveness
of Vulcans internal control over financial reporting have
been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports,
which are incorporated herein by reference. Such consolidated
financial statements and financial statement schedule have been
so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
VALIDITY OF
SHARES
The validity of the shares of common stock offered by this
prospectus supplement will be passed upon for us by
Sullivan & Cromwell LLP, New York, New York, and for
the underwriters by Simpson Thacher & Bartlett LLP,
New York, New York. Sullivan & Cromwell LLP and Simpson
Thacher & Bartlett LLP will rely with respect to all
matters of New Jersey law upon Lowenstein Sandler PC,
Roseland, New Jersey.
S-20
PROSPECTUS
VULCAN
MATERIALS COMPANY
Debt
Securities
Common
Stock
Preference
Stock
Depository
Shares
Warrants
Stock
Purchase Contracts
Stock
Purchase Units
Vulcan
Materials Company may, from time to time, in one or more
offerings, offer and sell debt securities, common stock,
preference stock, depository shares, warrants, stock purchase
contracts and stock purchase units to the public. We will
provide specific terms of any offering and the offered
securities in supplements to this prospectus. You should read
this prospectus and each applicable prospectus supplement,
together with the documents incorporated by reference, carefully
before you invest.
This
prospectus may not be used to sell our securities unless it is
accompanied by a prospectus supplement.
As more
fully described below under Mergers, on
November 16, 2007, Vulcan Materials Company, a New Jersey
corporation (Legacy Vulcan), and Florida Rock
Industries, Inc., a Florida corporation (Florida
Rock), each consummated a merger transaction with a
separate wholly-owned subsidiary of ours, as a result of which
Legacy Vulcan and Florida Rock became our wholly-owned
subsidiaries. In connection with the mergers, we were renamed
Vulcan Materials Company and Legacy Vulcan was renamed Legacy
Vulcan Corp. After the mergers, the shareholders of Legacy
Vulcan and Florida Rock became the shareholders of
Vulcan.
You
should carefully read and evaluate the risk factors included in
the documents we incorporate by reference, the risk factors
described under the caption Risk Factors in any
applicable prospectus supplement and in our periodic reports as
well as the other information that we file with the Securities
and Exchange Commission (the SEC). See Risk
Factors on page 2.
We may offer
and sell these securities to or through agents, underwriters,
dealers or directly to purchasers. The names of any underwriters
and the terms of the arrangements with such entities will be
stated in an accompanying prospectus supplement.
NEITHER
THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Our common
stock is listed on the New York Stock Exchange under the symbol
VMC. Each prospectus supplement will indicate if the
securities offered thereby will be listed on any securities
exchange.
The date of
this prospectus is December 3, 2007.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
This
document is called a prospectus and is part of a registration
statement that we filed with the SEC using a shelf
registration or continuous offering process. Under this shelf
process, we may from time to time offer
and/or sell
any combination of the securities described in this prospectus
in one or more offerings.
This
prospectus provides you with a general description of the debt
securities, common stock, preference stock, depository shares,
warrants, stock purchase contracts, and stock purchase units we
may offer. Each time we sell any such securities, we will
provide a prospectus supplement containing specific information
about the terms of the securities being offered. That prospectus
supplement may include a discussion of any risk factors or other
special considerations applicable to those securities. The
prospectus supplement may also add, update or change information
in this prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplement,
you should rely on the information in that prospectus
supplement. You should read both this prospectus and the
applicable prospectus supplement and the exhibits filed with our
registration statement together with the additional information
described under the heading Where You Can Find More
Information and Incorporation by Reference of Certain
Documents.
You
should rely only on the information contained in or incorporated
by reference in this prospectus and the applicable prospectus
supplement. We have not authorized anyone to provide you with
different information. We are not making an offer or soliciting
a purchase of these securities in any jurisdiction in which the
offer or solicitation is not authorized or in which the person
making the offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make the offer or solicitation.
You should not assume that the information in or incorporated by
reference into this prospectus or any prospectus supplement is
accurate as of any date other than as of its date. Our business,
financial condition, results of operations and prospects may
have changed since that date.
Unless we
have indicated otherwise, references in this prospectus to
Vulcan, we, us and
our or similar terms are to Vulcan Materials Company
and its consolidated subsidiaries. References in this prospectus
to Legacy Vulcan are to Legacy Vulcan Corp. and its
consolidated subsidiaries. References to Florida
Rock are to Florida Rock Industries, Inc. and its
consolidated subsidiaries.
THE
COMPANY
Vulcan
Materials Company provides infrastructure materials that are
required by the American economy. Headquartered in Birmingham,
Alabama, we are the nations leading producer of
construction aggregates: primarily crushed stone, sand and
gravel. We are traded on the New York Stock Exchange under the
symbol VMC. We are a New Jersey corporation that was
incorporated on February 14, 2007 and has held Legacy
Vulcan, formerly named Vulcan Materials Company, and Florida
Rock as direct wholly-owned subsidiaries since the completion of
the mergers described below. We were previously named Virginia
Holdco, Inc. and were renamed Vulcan Materials Company after
consummation of the mergers. Our principal executive offices are
located at 1200 Urban Center Drive, Birmingham, Alabama 35242.
Our telephone number is
(205) 298-3000.
Our website
is located at
http://www.vulcanmaterials.com.
We do not incorporate the information on our website into this
prospectus and you should not consider it part of this
prospectus.
Legacy
Vulcan
Legacy
Vulcan Corp. is a New Jersey corporation incorporated in 1956
and is the nations largest producer of construction
aggregates and a major producer of asphalt mix and concrete.
Legacy Vulcans construction materials business produces
and sells aggregatesprimarily crushed stone, sand and
gravelthat are used in nearly all forms of construction.
In particular, large quantities of aggregates are used to build
roads and nonresidential infrastructure.
Florida
Rock
Florida
Rock, a Florida corporation incorporated in 1945, is one of the
nations leading producers of construction aggregates, a
major provider of ready-mix concrete and concrete products in
the Southeastern and mid-Atlantic states and a significant
supplier of cement in Florida and Georgia. Florida Rock is
engaged in the mining, processing, distribution and sale of
sand, gravel and crushed stone, the production of ready-mix
concrete and concrete products, as well as the sales of other
building materials, the production and sales of Portland and
masonry cement, the importation of cement and slag and the sale
of calcium products to the animal feed industry.
MERGERS
On
February 19, 2007, Legacy Vulcan and Florida Rock announced
that they entered into a definitive merger agreement. The
transactions contemplated by the merger agreement were
consummated on November 16, 2007, at which time 30% of the
outstanding shares of common stock of Florida Rock were each
converted into the right to receive 0.63 shares of our
common stock, and each outstanding share of Legacy Vulcan was
converted into one share of our common stock. In connection with
the merger, Legacy Vulcan and Florida Rock both became our
wholly-owned subsidiaries.
RISK
FACTORS
Investing in
our securities involves risks. Before purchasing any securities
we offer, you should carefully consider the risk factors that
are incorporated by reference herein from the section captioned
Risk Factors in Legacy Vulcans Annual Report
on
Form 10-K
for the year ended December 31, 2006 and the section
captioned Risk Factors in Florida Rocks Annual
Report on
Form 10-K
for the year ended September 30, 2007, as the same may be
updated from time to time, together with all of the other
information included in this prospectus and any prospectus
supplement and any other information that we have incorporated
by reference, including filings made with the SEC subsequent to
the date hereof. Any of these risks, as well as other risks and
uncertainties, could harm our financial condition, results of
operations or cash flows. Please also refer to the section below
entitled Information Regarding Forward-Looking
Statements.
2
WHERE YOU
CAN FIND MORE INFORMATION AND INCORPORATION BY REFERENCE OF
CERTAIN DOCUMENTS
Vulcan files
annual, quarterly and current reports, proxy statements and
other information with the SEC. You may obtain any document we
file with the SEC at the SECs public reference room at
100 F Street, N.E., Room 1580, Washington D.C.
20549. You may obtain information on the operation of the
SECs public reference facilities by calling the SEC at
1-800-SEC-0330.
You can request copies of these documents, upon payment of a
duplicating fee, by writing to the SEC. Our SEC filings are also
accessible through the Internet at the SECs web site at
http://www.sec.gov
and through the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The SEC
permits us to incorporate by reference into this
prospectus the information in documents we file with it, which
means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is considered to be a part of this prospectus, and
later information that we file with the SEC will update and
supersede any information contained in this prospectus or
incorporated by reference in this prospectus. We incorporate by
reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended (the
Exchange Act), until the offering of the securities
by means of this prospectus is terminated.
These
documents contain important business and financial information
about Legacy Vulcan, Florida Rock and us that is not included in
or delivered with this prospectus.
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Vulcan
Materials Company (File No. 001-33841)
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(formerly
Virginia Holdco, Inc.)
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Period
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Current Reports on
Form 8-K
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November 16, 2007 (the description of our common stock is
contained in this filing, which is also the filing pursuant to
which our common stock is deemed registered pursuant to
Section 12(b) of the Exchange Act), as revised by our
Current Report on Form 8-K/A filed on November 21, 2007,
and November 21, 2007
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Legacy
Vulcan Corp. (File No. 001-04033)
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(formerly
Vulcan Materials Company)
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Period
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Annual Report on
Form 10-K
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Fiscal year ended December 31, 2006, as revised by our Current
Report on Form 8-K filed on July 12, 2007
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Quarterly Reports on
Form 10-Q
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Quarters ended March 31, 2007, June 30, 2007 and September 30,
2007
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Current Reports on
Form 8-K
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February 20, 2007, July 12, 2007, July 17, 2007 and October 15,
2007
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Florida
Rock Industries, Inc. (File No. 001-07159)
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Period
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Annual Report on
Form 10-K
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Fiscal year ended September 30, 2007
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To the
extent that any information contained in any Current Report on
Form 8-K,
or any exhibit thereto, was or is furnished, rather than filed
with, the SEC such information or exhibit is specifically not
incorporated by reference into this document.
3
If you
request a copy of any or all of the documents incorporated by
reference, we will send to you the copies you requested at no
charge. However, we will not send exhibits to such documents,
unless such exhibits are specifically incorporated by reference
in such documents. You should direct requests for such copies to
Vulcan Materials Company, 1200 Urban Center Drive, Birmingham,
Alabama 35242, Attention: Jerry F. Perkins, Jr.
If you find
inconsistencies between the documents, or between the documents
and this prospectus or the applicable prospectus supplement, you
should rely on the most recent document or prospectus supplement.
INFORMATION
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including the documents we incorporate by reference,
contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended (the Securities Act), and Section 21E
of the Exchange Act. Generally, these statements relate to
future financial performance, results of operations, business
plans or strategies, projected or anticipated revenues,
expenses, earnings, or levels of capital expenditures.
Statements to the effect that we or our management
anticipate, believe,
estimate, expect, plan,
predict, intend, or project
a particular result or course of events or target
objective, or goal, or that a result or
event should occur, and other similar expressions,
identify these forward-looking statements. These statements are
subject to numerous risks, uncertainties, and assumptions,
including but not limited to general business conditions,
competitive factors, pricing, energy costs, and other risks and
uncertainties discussed in the reports we periodically file with
the SEC. These risks, uncertainties, and assumptions may cause
our actual results or performance to be materially different
from those expressed or implied by the forward-looking
statements. We caution prospective investors that
forward-looking statements are not guarantees of future
performance and that actual results, developments, and business
decisions may vary significantly from those expressed in or
implied by the forward-looking statements. We undertake no
obligation to update publicly or revise any forward-looking
statement for any reason, whether as a result of new
information, future events or otherwise.
In addition
to the risk factors identified in Legacy Vulcans Annual
Report on
Form 10-K
for the year ended December 31, 2006 and Florida
Rocks Annual Report on
Form 10-K
for the year ended September 30, 2007, the following risks
related to our business, among others, could cause actual
results to differ materially from those described in the
forward-looking statements:
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the
possibility that problems may arise in successfully integrating
the businesses of the two companies;
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the
possibility that the mergers may involve unexpected costs;
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the
possibility that the combined company may be unable to achieve
cost-cutting synergies;
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the
possibility that the businesses may suffer as a result of
uncertainty surrounding the mergers;
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the
possibility that the industry may be subject to future
regulatory or legislative actions;
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the outcome
of pending legal proceedings;
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changes in
interest rates;
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the timing
and amount of federal, state and local funding for
infrastructure;
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changes in
the level of spending for residential and private nonresidential
construction;
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the highly
competitive nature of the construction materials industry;
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pricing of
our products;
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our ability
to secure and permit aggregate reserves in strategically located
areas;
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weather and
other natural phenomena;
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energy costs;
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costs of
hydrocarbon-based raw materials;
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increasing
healthcare costs;
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risks
relating to certain divestitures that we are required by the
Antitrust Division of the United States Department of Justice to
complete as a result of the mergers;
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the timing
and amount of any future payments to be received under two
earn-outs contained in the agreement for the divestiture of
Legacy Vulcans chemicals business; and
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other risks
and uncertainties.
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RATIO OF
EARNINGS TO FIXED CHARGES
The ratio of
earnings to fixed charges for Legacy Vulcan is set forth below
for the periods indicated. In addition to the historical ratios,
pro forma ratios of earnings to fixed charges are presented that
give effect to the mergers as if they had occurred on
January 1, 2006. The pro forma ratios have been derived
from, and should be read in conjunction with, Vulcans pro
forma consolidated condensed financial statements for the year
ended December 31, 2006 and the nine months ended
September 30, 2007, including the notes thereto, included
in our Current Report on
Form 8-K/A
filed on November 21, 2007 and incorporated by reference in
this registration statement. See Where You Can Find More
Information and Incorporation by Reference of Certain
Documents.
For purposes
of computing the ratio of earnings to fixed charges, earnings
were calculated by adding (1) earnings from continuing
operations before income taxes; (2) fixed charges;
(3) capitalized interest credits; (4) amortization of
capitalized interest; and (5) distributed income of equity
investees. Fixed charges consist of: (1) interest expense
before capitalization credits; (2) amortization of
financing costs; and (3) one-third of rental expense.
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Historical
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Pro Forma
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Nine
Months
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Nine
Months
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Ended
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Year
Ended
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Ended
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Year
Ended December 31,
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September 30,
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December 31,
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September 30,
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2002
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2003
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2004
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2005
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2006
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2007
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2006
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2007
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5.4x
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5.7x
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7.3x
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8.7x
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12.9x
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13.0x
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5.2x
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4.8x
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USE OF
PROCEEDS
Unless
otherwise specified in a prospectus supplement accompanying this
prospectus, we will add the net proceeds from the sale of the
securities to which this prospectus and the prospectus
supplement relate to our general funds, which we will use for
repaying debt incurred in connection with the mergers, retiring
our outstanding commercial paper, financing any increase in
working capital, acquisitions, general corporate purposes and
any other purpose specified in a prospectus supplement. We may
conduct concurrent or additional financings at any time.
5
DESCRIPTION
OF DEBT SECURITIES
The
following is a general description of the debt securities which
may be issued from time to time by us under this prospectus. The
particular terms relating to each debt security will be set
forth in a prospectus supplement.
General
We may issue
from time to time one or more series of debt securities under an
indenture (the Indenture) between us and Wilmington
Trust Company, as trustee (the Trustee). The
Indenture will not limit the amount of debt securities that we
may issue. Citibank, N.A. will act as authenticating agent,
paying agent, registrar and transfer agent for the debt
securities under a paying agency agreement among us, Citibank,
N.A. and the Trustee.
The debt
securities will be our direct, unsecured obligations. The debt
securities will either rank as senior debt or subordinated debt,
and may be issued either separately or together with, or upon
the conversion of, or in exchange for, other securities. We
currently conduct substantially all of our operations through
subsidiaries, and the holders of our debt securities (whether
senior or subordinated) will be effectively subordinated to the
creditors of our subsidiaries. This means that creditors of our
subsidiaries will have a claim to the assets of our subsidiaries
that is superior to the claim of our creditors, including
holders of our debt securities.
The
following description is only a summary of the material
provisions of the Indenture for the debt securities and is
qualified by reference to the Indenture, a form of which is
filed as an exhibit to the registration statement of which this
prospectus is a part. The terms of any indenture that we may
enter into may differ from the terms we describe below. We urge
you to read the Indenture because it, and not this description,
define your rights as a holder of the debt securities. The
summary below of the general terms of the debt securities will
be supplemented by the more specific terms in the prospectus
supplement for a particular series of debt securities. In some
instances, certain of the precise terms of the debt securities
you are offered may be described in a further prospectus
supplement, known as a pricing supplement.
Terms
Applicable to Debt Securities
The
prospectus supplement, including any separate pricing
supplement, for a particular series of debt securities will
specify the following terms of that series of debt securities:
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the
designation, the aggregate principal amount and the authorized
denominations, if other than $1,000 and integral multiples of
$1,000;
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the
percentage of the principal amount at which the debt securities
will be issued;
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the date or
dates on which the debt securities will mature;
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the
currency, currencies or currency units in which payments on the
debt securities will be payable;
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the rate or
rates at which the debt securities will bear interest, if any,
or the method of determination of such rate or rates;
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the date or
dates from which the interest, if any, shall accrue, the dates
on which the interest, if any, will be payable and the method of
determining holders to whom any of the interest shall be payable;
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the prices,
if any, at which, and the dates at or after which, we may or
must repay, repurchase or redeem the debt securities;
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any sinking
fund obligation with respect to the debt securities;
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any terms
pursuant to which the debt securities may be convertible or
exchangeable into equity or other securities;
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whether such
debt securities will be senior debt securities or subordinated
debt securities and, if subordinated debt securities, the
subordination provisions and the applicable definition of
senior indebtedness;
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any special
United States federal income tax consequences;
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any addition
to or change in the events of default described in this
prospectus or the Indenture;
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any addition
to or change in the covenants described in this prospectus or
the Indenture;
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whether the
debt securities will be issued in the form of one or more
permanent global debt securities;
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the
exchanges, if any, on which the debt securities may be listed;
and
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any other
material terms of the debt securities consistent with the
provisions of the Indenture.
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Unless
otherwise specified in the prospectus supplement, we will
compute interest payments on the basis of a
360-day year
consisting of twelve
30-day
months.
Original
Issue Discount Securities
Some of the
debt securities may be issued as original issue discount
securities to be sold at a substantial discount below
their stated principal amount. Original issue discount
securities may include zero coupon securities that
do not pay any cash interest for the entire term of the
securities. In the event of an acceleration of the maturity of
any original issue discount security, the amount payable to the
holder thereof upon such acceleration will be determined in the
manner described in the applicable prospectus supplement.
Conditions pursuant to which payment of the principal of the
debt securities may be accelerated will be set forth in the
prospectus supplement relating to those debt securities. The
prospectus supplement relating to a particular series of
discounted debt securities will describe any Federal income tax
consequences and other special consequences applicable to those
discounted debt securities.
Reopening
of Issue
We may, from
time to time, reopen an issue of debt securities and issue
additional debt securities with the same terms (including issue
date, maturity and interest rate) as the debt securities of that
series issued on an earlier date. (Section 301) After
such additional debt securities are issued, they will be
fungible with the debt securities of that series issued on the
earlier date.
Ranking
The senior
debt securities will be unsecured and will rank equal in right
of payment with all of our existing and future unsecured and
unsubordinated indebtedness. Any subordinated debt securities
will be obligations of ours and will be subordinated in right of
payment to both our existing and any future senior indebtedness.
The prospectus supplement relating to those debt securities will
describe the subordination provisions and set forth the
definition of senior indebtedness applicable to
those subordinated debt securities and the approximate amount of
senior indebtedness outstanding as of a then recent date.
7
Redemption
and Repurchase
Debt
securities of any series may be redeemable at our option, may be
subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by us at the option
of the holders, in each case upon the terms, at the times and at
the prices set forth in the applicable prospectus supplement.
Conversion
and Exchange
The terms,
if any, on which debt securities of any series are convertible
into or exchangeable for common stock, preference stock, or
other debt securities will be set forth in the applicable
prospectus supplement. Such terms of conversion or exchange may
be either mandatory, at the option of the holders, or at our
option.
Covenants
Unless the
applicable prospectus supplement specifies otherwise, the debt
securities will be subject to certain restrictive covenants
described below. Any additional restrictive covenants applicable
to a particular series of debt securities that we offer will be
described in the applicable prospectus supplement.
Restrictions
on Secured Debt
In the
Indenture, we covenant that we will not, and each of our
restricted subsidiaries (as defined below) will not, incur,
issue, assume or guarantee any debt (as defined in the
Indenture) secured by a pledge, mortgage or other lien
(1) on a principal property (as defined below) owned or
leased by us or any restricted subsidiary or (2) on any
shares of stock or debt of any restricted subsidiary, unless we
secure the debt securities equally and ratably with or prior to
the debt secured by the lien. If we secure the debt securities
in this manner, we have the option of securing any of our other
debt or obligations, or those of any subsidiary, equally and
ratably with the debt securities, as long as the other debt or
obligations are not subordinate to the debt securities. This
covenant has significant exceptions; it does not apply to the
following liens:
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liens on the
property, shares of stock or debt of any person (as defined in
the Indenture) existing at the time the person becomes our
restricted subsidiary or, with respect to a particular series of
debt securities, liens existing as of the time such debt
securities are first issued;
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liens in
favor of us or any of our restricted subsidiaries;
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liens in
favor of U.S. governmental bodies to secure progress,
advance or other payments required under any contract or
provision of any statute or regulation;
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liens on
property, shares of stock or debt, either:
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existing at
the time we acquire the property, stock or debt, including
acquisition through merger or consolidation;
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securing all
or part of the cost of acquiring the property, stock or debt or
construction on or improvement of the property; or
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securing
debt to finance the purchase price of the property, stock or
debt or the cost of acquiring, constructing on or improving of
the property that were incurred prior to or at the time or
within one year after we acquire the property, stock or debt or
complete construction on or improvement of the property and
commence full operation thereof;
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liens
securing all of the debt securities; and
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any
extension, renewal or replacement of the liens described above
if the extension, renewal or replacement is limited to the same
property, shares or debt that secured the lien that was
extended, renewed or replaced (plus improvements on such
property), except that if the debt secured by a lien is
increased as a result of such extension, renewal or replacement,
we will be required to include the increase when we compute the
amount of debt that is subject to this covenant.
(Section 1006)
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In addition,
this covenant restricting secured debt does not apply to any
debt that either we or any of our restricted subsidiaries issue,
assume or guarantee if the total principal amount of the debt,
when added to (1) all of the other outstanding debt that
this covenant would otherwise restrict, and (2) the total
amount of remaining rent, discounted by 11% per year, that we or
any restricted subsidiary owes under any lease arising out of a
sale and leaseback transaction, is less than or equal to 15% of
our consolidated net tangible assets.
(Section 1006) When we talk about consolidated net
tangible assets, we mean, in general, the aggregate amount of
the assets of us and our consolidated subsidiaries after
deducting (a) all current liabilities (excluding any
thereof constituting funded debt, as defined in the Indenture,
by reason of being renewable or extendible) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt
discount and expense, and similar intangible assets.
(Section 101)
When we talk
about a restricted subsidiary, we mean, in general, a
corporation (as defined in the Indenture) more than 50% of the
outstanding voting stock of which is owned, directly or
indirectly, by us or by one or more of our other subsidiaries,
or us and one or more of our other subsidiaries, and has
substantially all its assets located in, or carries on
substantially all of its business in, the United States of
America; provided, however, that the term shall not include any
entity which is principally engaged in leasing or in financing
receivables, or which is principally engaged in financing our
operations outside the United States of America.
(Section 101)
When we talk
about a principal property, we mean, in general, any building,
structure or other facility that we or any restricted subsidiary
leases or owns, together with the land on which the facility is
built and fixtures comprising a part thereof, which is located
in the United States, used primarily for manufacturing or
processing and which has a gross book value in excess of 3% of
our consolidated net tangible assets, other than property
financed pursuant to certain exempt facility sections of the
Internal Revenue Code or which in the opinion of our board of
directors, is not of material importance to the total business.
(Section 101)
Limitation
on Sale and Leasebacks
We have
agreed that neither we nor any of our restricted subsidiaries
will enter into a sale and leaseback transaction (as defined in
the Indenture) related to a principal property which would take
effect more than one year after the acquisition, construction,
improvement and commencement of full operation of the property,
except for temporary leases for a term of not more than three
years (or which we or such restricted subsidiary may terminate
within three years) and except for leases between us and a
restricted subsidiary or between our restricted subsidiaries,
unless one of the following applies:
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we or our
restricted subsidiary could have incurred debt secured by a lien
on the principal property to be leased back in an amount equal
to the remaining rent, discounted by 11% per year, for that sale
and leaseback transaction, without being required to equally and
ratably secure the debt securities as required by the
Restrictions on Secured Debt covenant described
above, or
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within one
year after the sale or transfer, we or a restricted subsidiary
apply to (1) the purchase, construction or improvement of
other property used or useful in the business of, or other
capital expenditure by, us or any of our restricted
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subsidiaries
or (2) the retirement of long-term debt, which is debt with
a maturity of a year or more, or the prepayment of any capital
lease obligation of the Company or any restricted subsidiary an
amount of cash at least equal to (a) the net proceeds of
the sale of the principal property sold and leased back under
the sale and leaseback arrangement, or (b) the fair market
value of the principal property sold and leased back under the
arrangement, whichever is greater, provided that the amount to
be applied or prepaid shall be reduced by (x) the principal
amount of any debt securities delivered within one year after
such sale to the Trustee for retirement and cancellation, and
(y) the principal amount of our long-term debt (as defined
in the Indenture), other than debt securities, voluntarily
retired by us or any restricted subsidiary within one year after
such sale, or
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as to any
particular series of debt securities, sale and leaseback
transactions existing on the date the debt securities of that
particular series are first issued. (Section 1007)
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Consolidation,
Merger and Sale of Assets
We may not
consolidate with or merge into any corporation (as defined in
the Indenture), or convey, transfer or lease our properties and
assets substantially as an entirety to any corporation, and may
not permit any corporation to consolidate or merge into us or
convey, transfer or lease its properties and assets
substantially as an entirety to us, unless:
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(i)
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the
remaining or acquiring entity is a corporation organized and
validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and expressly
assumes our obligations on the debt securities and under the
Indenture;
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(ii)
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immediately
after giving effect to the transaction, no event of default (as
defined in the Indenture), and no event which, after notice or
lapse of time or both, would become an event of default, would
occur and continue;
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(iii)
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if, as a
result of any such consolidation or merger or such conveyance,
transfer or lease, our properties or assets would become subject
to a mortgage, pledge, lien security interest or other
encumbrance which would not be permitted by the Indenture, we or
the successor corporation shall take such steps as shall be
necessary effectively to secure the debt securities equally and
ratably with (or prior to) all indebtedness secured
thereby; and
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(iv)
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we have
delivered to the Trustee an officers certificate and an
opinion of counsel each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture
is required in connection with such transaction, such
supplemental indenture comply with Article Eight of the
Indenture and that all conditions precedent provided therein
relating to such transaction have been complied with.
(Section 801)
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This
covenant shall not apply to sale, assignment, transfer,
conveyance or other disposition of assets between or among us
and any restricted subsidiary.
SEC
Reports
We shall
file with the Trustee and the SEC and transmit to holders such
information, documents and other reports and such summaries
thereof as may be required pursuant to the Trust Indenture
Act of 1939 as provided pursuant to such act, provided that any
such information, documents or reports required to be filed with
the SEC pursuant to Section 13 or 15(d) of the
10
Exchange Act
shall be filed with the Trustee within 15 days after the
same is actually filed with the SEC. (Section 704)
Events of
Default
Each of the
following will constitute an event of default under the
Indenture with respect to debt securities of any series:
(i) failure
to pay any interest on any debt securities of that series when
due and payable, continued for 30 days;
(ii) failure
to pay principal of or any premium on any debt security of that
series when due;
(iii) failure
to deposit any sinking fund payment, when due, in respect of any
debt security of that series;
(iv) failure
to perform, or breach of, any other covenant or warranty of ours
in the Indenture with respect to debt securities of that series
(other than a covenant or warranty included in the Indenture
solely for the benefit of a particular series other than that
series), continued for 90 days after written notice has
been given to us by the Trustee or the holders of at least 25%
in principal amount of the outstanding debt securities of that
series, as provided in the Indenture; and
(v) certain
events involving bankruptcy, insolvency or reorganization.
(Section 501)
If an event
of default with respect to the debt securities of any series at
the time outstanding occurs and continues, either the Trustee or
the holders of at least 25% of the aggregate principal amount of
the outstanding debt securities of that series may declare the
principal amount of the debt securities of that series to be due
and payable immediately by giving notice as provided in the
Indenture. After the acceleration of a series, but before a
judgment or decree based on acceleration is rendered, the
holders of a majority of the aggregate principal amount of the
outstanding debt securities of that series may, under certain
circumstances, rescind and annul the acceleration if all events
of default, other than the non-payment of accelerated principal,
have been cured or waived as provided in the Indenture.
(Section 502)
If an event
of default occurs and is continuing, generally the Trustee will
be under no obligation to exercise any of its rights under the
Indenture at the request of any of the holders, unless those
holders offer to the Trustee indemnity satisfactory to it.
(Section 603) If the Trustee is offered indemnity
satisfactory to it under the Indenture, the holders of a
majority of the aggregate principal amount of the outstanding
debt securities of any series will have the right to direct
(provided such direction shall not conflict with any rule of law
or the Indenture) the time, method and place of:
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conducting
any proceeding for any remedy available to the Trustee; or
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exercising
any trust or power conferred on the Trustee with respect to the
debt securities of that series. (Section 512)
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No holder of
a debt security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the
appointment of a receiver or a trustee or for any other remedy
under the Indenture, unless:
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the holder
has previously given to the Trustee written notice of a
continuing event of default;
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the holders
of at least 25% of the aggregate principal amount of the
outstanding debt securities of the relevant series have made
written request, and the holder or holders have offered
reasonable indemnity, to the Trustee to institute the
proceeding; and
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the Trustee
has failed to institute a proceeding, and has not received from
the holders of a majority of the aggregate principal amount of
the outstanding debt securities of the relevant series a
direction inconsistent with the request, within 60 days
after the notice, request and offer. (Section 507)
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However, the
limitations do not apply to a suit instituted by a holder of a
debt security for the enforcement of payment of the principal of
or any premium or interest on any debt security on or after the
applicable due date specified in the debt security.
(Section 508)
We will
furnish annually a statement to the Trustee by certain of its
officers as to whether or not we, to the best of their
knowledge, are in default in the performance or observance of
any of the terms, provisions, conditions or covenants of the
Indenture and, if so, specifying all known defaults.
(Section 1004)
Modification
and Waiver
Modifications
and amendments of the Indenture may be made by us and the
Trustee with the consent of the holders of a majority of
aggregate principal amount of the outstanding debt securities of
each series affected by the modification or amendment. No
modification or amendment may, without the consent of the holder
of each affected outstanding debt security:
(i) change
the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
(ii) reduce
the principal amount of, or any premium or interest on, any debt
security;
(iii) reduce
the amount of principal of an original issue discount security
payable upon acceleration of maturity;
(iv) change
the place or currency of payment of principal of, or any premium
or interest on, any debt security;
(v) impair
the right to institute suit for the enforcement of any payment
on or with respect to any debt security;
(vi) reduce
the percentage of the principal amount of outstanding debt
securities of any series that is required to consent to the
modification or amendment of the Indenture;
(vii) reduce
the percentage of the principal amount of outstanding debt
securities of any series necessary for waiver of compliance with
certain provisions of the Indenture or for waiver of certain
defaults; or
(viii) make
certain modifications to the provisions of the Indenture with
respect to modification and waiver. (Section 902)
The holders
of a majority of the aggregate principal amount of the
outstanding debt securities of any series may waive any past
default or compliance with certain restrictive provisions under
the Indenture, except a default in the payment of principal,
premium or interest and certain covenants and provisions of the
Indenture which cannot be amended without the consent of the
holder of each outstanding debt security of the affected series.
(Sections 513 and 1008)
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In
determining whether the holders of the requisite principal
amount of the outstanding debt securities have given or taken
any direction, notice, consent, waiver or other action under the
Indenture as of any date, the principal amount of an original
issue discount security that will be deemed to be outstanding
will be the amount of its principal that would be due and
payable at that time if the debt security were accelerated to
that date.
Certain debt
securities, including those owned by us or any of our affiliates
or for which payment or redemption money has been deposited or
set aside in trust for the holders, will not be deemed to be
outstanding. (Section 101)
We will
generally be entitled to set any day as a record date for the
purpose of determining the holders of outstanding debt
securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indenture, in
the manner and subject to the limitations provided in the
Indenture. In certain limited circumstances, the Trustee will be
entitled to set a record date for action by holders, and to be
effective, that action must be taken by holders of the requisite
principal amount of the debt securities within 90 days
following the record date. If a record date is set for any
action to be taken by holders of a particular series, the action
may be taken only by persons who are holders of outstanding debt
securities of that series on the record date.
(Sections 104, 502 and 512)
Defeasance
The
provisions of Section 1302, relating to defeasance and
discharge of indebtedness, or Section 1303, relating to
defeasance of certain restrictive covenants in the Indenture,
may apply to the debt securities of any series or to any
specified part of a series. (Section 1301)
Defeasance
and
Discharge.
Section 1302 of the Indenture provides that we may be
discharged from all of our obligations with respect to the debt
securities (except for the rights of holders to receive payments
of principal and any premium or interest solely from funds
deposited in trust, and certain obligations to exchange or
register the transfer of debt securities, to replace stolen,
lost or mutilated debt securities, to maintain paying agencies,
to hold moneys for payment in trust and to defease and discharge
debt securities under Article Thirteen of the Indenture). To be
discharged from those obligations, we must deposit in trust for
the benefit of the holders of the debt securities money or
government obligations, or both, which, through the payment of
principal of and interest on the deposited money or government
obligations, will provide enough money to pay the principal of
and any premium and interest on the debt securities on the
stated maturities and any sinking fund payments in accordance
with the terms of the Indenture and the debt securities. We may
only do this if, among other things, we have delivered to the
Trustee an opinion of counsel to the effect that we have
received from, or there has been published by, the United States
Internal Revenue Service a ruling, or there has been a change in
tax law, in either case to the effect that holders of the debt
securities will not recognize income, gain or loss for federal
income tax purposes as a result of the defeasance and discharge
and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the
case if the defeasance and discharge were not to occur.
(Sections 1302 and 1304)
Defeasance
of Certain
Covenants.
Section 1303 of the Indenture provides that:
in
certain circumstances, we may omit to comply with certain
restrictive covenants, including those described under
CovenantsRestrictions on Secured Debt,
CovenantsLimitation on Sale and Leasebacks,
SEC Reports, Consolidation, Merger and Sale of
Assets and other covenants identified in any supplemental
indenture; and
in
those circumstances, the occurrence of certain events of
default, which are described above in clause (iv) (with
respect to the restrictive covenants) under Events of
Default, will be deemed not to be or result in an event of
default with respect to the debt securities.
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We, to
exercise this option, will be required to deposit, in trust for
the benefit of the holders of the debt securities, money or
government obligations, or both, which, through the payment of
principal of and interest on the deposited money or government
obligations, will provide enough money to pay the principal of
and any premium and interest on the debt securities on the
stated maturities in accordance with the terms of the Indenture
and the debt securities. We will also be required, among other
things, to deliver to the Trustee an opinion of counsel to the
effect that holders of the debt securities will not recognize
income, gain or loss for federal income tax purposes as a result
of the deposit and defeasance and will be subject to federal
income tax on the same amount, in the same manner and at the
same times as would have been the case if the deposit and
defeasance were not to occur. If we exercise this option with
respect to any debt securities and those debt securities are
accelerated because of the occurrence of any event of default,
the amount of money and U.S. government obligations
deposited in trust will be sufficient to pay amounts due on
those debt securities at the time of their stated maturities but
might not be sufficient to pay amounts due on those debt
securities upon that acceleration. In that case, we will remain
liable for the payments. (Sections 1303 and 1304)
Notices
Notices to
holders of debt securities will be given by mail to the
addresses of the holders as they appear in the security
register. (Section 106)
Title
We, the
Trustee, the paying agent and any of their agents may treat the
registered holder of a debt security as the absolute owner of
the debt security for the purpose of making payment and for all
other purposes. (Section 308)
Payment
of Securities
We will duly
and punctually pay the principal of and any premium or interest
on the debt securities in accordance with the terms of the debt
securities and the Indenture. (Section 1001)
Maintenance
of Office or Agency
We will
maintain an office or agency where the debt securities may be
paid and notices and demands to or upon us in respect of the
debt securities and the Indenture may be served and an office or
agency where debt securities may be surrendered for registration
of transfer or exchange. We will give prompt written notice to
the trustee of the location, and any change in the location, of
any such office or agency. If at any time we shall fail to
maintain any required office or agency or shall fail to furnish
the trustee with the address of any required office or agency,
all presentations, surrenders, notices and demands may be served
at the office of the trustee. (Section 1002)
Form,
Exchange and Transfer
We will
issue the debt securities of each series only in fully
registered form, without coupons, and, unless otherwise
specified in the applicable prospectus supplement, only in
denominations of $1,000 and integral multiples thereof.
(Section 302)
Holders may,
at their option, but subject to the terms of the Indenture and
the limitations that apply to global securities, exchange their
debt securities for other debt securities of the same series of
any authorized denomination and of a like tenor and aggregate
principal amount. (Section 305)
Subject to
the terms of the Indenture and the limitations that apply to
global securities, holders may exchange debt securities as
provided above or present for registration of transfer at the
office of the security registrar or at the office of any
transfer agent designated by us. No service charge applies for
any registration of transfer or exchange of debt securities, but
the holder may have to pay any tax or other governmental charge
associated with registration of transfer or exchange. The
transfer or exchange will be made after the security registrar
or the transfer agent is satisfied with the documents of title
and the identity of the person making the request. We have
appointed Citibank, N.A. as security registrar and transfer
agent. (Section 305) Any security
14
registrar or
transfer agent subsequently designated by us for any debt
securities will be named in a prospectus supplement. We may at
any time designate additional transfer agents or cancel the
designation of any transfer agent or approve a change in the
office through which any transfer agent acts. However, we will
be required to maintain a transfer agent in each place of
payment for the debt securities of each series.
(Section 1002)
If the debt
securities are to be partially redeemed, we will not be required
to:
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issue or
register the transfer of or exchange any debt security during a
period beginning 15 days before the day of mailing of a
notice of redemption and ending on the day of the
mailing; or
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register the
transfer of or exchange any debt security selected for
redemption, in whole or in part, except the unredeemed portion
of any debt security being redeemed in part. (Section 305)
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Payment
and Paying Agents
We will pay
interest on a debt security on any interest payment date to the
registered holder of the debt security as of the close of
business on the regular record date for payment of interest.
(Section 307)
We will pay
the principal of and any premium and interest on the debt
securities at the office of the paying agent or paying agents
that we designate. Principal and interest payments on global
securities registered in the name of DTCs nominee
(including the global securities representing the notes) will be
made in immediately available funds to DTCs nominee as the
registered owner of the global securities.
We have
appointed Citibank, N.A. as paying agent. We may at any time
designate additional paying agents, rescind the designation of
any paying agent or approve a change in the office through which
any paying agent acts. Any paying agent subsequently designated
by us for any debt securities will be named in a prospectus
supplement. We must maintain a paying agent in each place of
payment for the debt securities of a particular series.
(Sections 1002 and 1003)
Concerning
the Trustee and Agent
Wilmington
Trust Company will initially act as trustee and Citibank,
N.A. will initially act as authenticating agent, paying agent,
registrar and transfer agent for the debt securities issued
pursuant to this prospectus. Citicorp USA Inc., an affiliate of
Citibank, N.A., is a lender under our credit facilities.
The trustee
may resign or be removed at any time with respect to the debt
securities of any series by any act of holders of a majority in
principal amount of the outstanding securities of such series,
and we may appoint a successor trustee to act for such series.
(Section 610)
We will
describe in the applicable prospectus supplement any other
material business and other relationships (including additional
trusteeships), other than the trusteeship under the Indenture
and the agency under the paying agency agreement, between us and
any of our affiliates, on the one hand, and each trustee and
agent under the Indenture and the paying agency agreement, on
the other hand.
Governing
Law
The laws of
the State of New York will govern the Indenture and each series
of debt securities. (Section 112)
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Global
Securities
The debt
securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited
with the depository identified in the applicable prospectus
supplement. Unless it is exchanged in whole or in part for debt
securities in definitive form, a global security may not be
transferred. However, transfers of the whole security between
the depository for that global security and its nominees or
their respective successors are permitted.
Unless
otherwise provided in the applicable prospectus supplement, The
Depository Trust Company, New York, New York, which we
refer to in this prospectus as DTC, will act as
depository for each series of global securities. Beneficial
interests in global securities will be shown on, and transfers
of global securities will be effected only through, records
maintained by DTC and its participants.
DTC has
provided the following information to us. DTC is a:
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limited-purpose
trust company organized under the New York Banking Law;
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banking
organization within the meaning of the New York Banking Law;
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member of
the U.S. Federal Reserve System;
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clearing
corporation within the meaning of the New York Uniform
Commercial Code; and
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clearing
agency registered under the provisions of Section 17A of
the Exchange Act.
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DTC holds
securities that its direct participants deposit with DTC. DTC
also facilitates the settlement among direct participants of
securities transactions, in deposited securities through
electronic computerized book-entry changes in the direct
participants accounts. This eliminates the need for
physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the Financial Industry
Regulatory Authority. Access to DTCs book-entry system is
also available to indirect participants such as securities
brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a direct
participant. The rules applicable to DTC and its direct and
indirect participants are on file with the SEC.
Principal
and interest payments on global securities registered in the
name of DTCs nominee will be made in immediately available
funds to DTCs nominee as the registered owner of the
global securities. We and the trustee will treat DTCs
nominee as the owner of the global securities for all other
purposes as well. Accordingly, we, the trustee and any paying
agent will have no direct responsibility or liability to pay
amounts due on the global securities to owners of beneficial
interests in the global securities. It is DTCs current
practice, upon receipt of any payment of principal or interest,
to credit direct participants accounts on the payment date
according to their respective holdings of beneficial interests
in the global securities. These payments will be the
responsibility of the direct and indirect participants and not
of DTC, the trustee, the paying agent or us.
Debt
securities represented by a global security will be exchangeable
for debt securities in definitive form of like amount and terms
in authorized denominations only if:
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DTC notifies
us that it is unwilling or unable to continue as depository or
DTC ceases to be a registered clearing agency and, in either
case, a successor depository is not appointed by us within
90 days;
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we determine
not to require all of the debt securities of a series to be
represented by a global security and notify the applicable
trustee of our decision; or
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an event of
default is continuing.
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DESCRIPTION
OF CAPITAL STOCK
Our
authorized capital stock consists of 480,000,000 shares of
common stock, $1.00 par value, and 5,000,000 shares of
preference stock, without par value. The following summary is
qualified in its entirety by the provisions of our certificate
of incorporation and by-laws, and the rights agreement that we
have entered into with The Bank of New York, which is
incorporated by reference as an exhibit to the registration
statement of which this prospectus constitutes a part.
Common
Stock
This section
describes the general terms of our common stock. For more
detailed information, you should refer to our certificate of
incorporation and bylaws, copies of which have been filed with
the SEC. These documents are also incorporated by reference into
this prospectus.
The holders
of common stock are entitled to one vote per share on all
matters to be voted upon by the shareholders. Subject to
preferences that may be applicable to any outstanding preference
stock, the holders of common stock are entitled to receive
ratably such dividends, if any, as may be declared from time to
time by our board of directors out of funds legally available.
See Dividend Policy. In the event of our
liquidation, dissolution or winding up, the holders of common
stock are entitled to share ratably in all assets remaining
after payment of liabilities, subject to prior liquidation
rights of preference stock, if any, then outstanding. The common
stock has no preemptive or conversion rights or other
subscription rights. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding
shares of common stock to be outstanding upon the completion of
any common stock offering will be fully paid and non-assessable.
Our common
stock is traded on the New York Stock Exchange under the trading
symbol VMC. The transfer agent for the common stock
is The Bank of New York.
Preference
Stock
This section
describes the general terms and provisions of our preference
stock. The prospectus supplement for a series of preference
stock will describe the specific terms of the shares of
preference stock offered through that prospectus supplement, as
well as any general terms described in this section that will
not apply to those shares of preference stock. We will file a
copy of the amendment to our certificate of incorporation that
contains the terms of each new series of preference stock with
the SEC each time we issue a new series of preference stock.
Each such amendment to our certificate of incorporation will
establish the number of shares included in a designated series
and fix the designation, powers, privileges, preferences and
rights of the shares of each series as well as any applicable
qualifications, limitations or restrictions. You should refer to
the applicable amendment to our certificate of incorporation
before deciding to buy shares of our preference stock as
described in the applicable prospectus supplement.
Our board of
directors has been authorized to provide for the issuance of
shares of our preference stock in multiple series without the
approval of stockholders. With respect to each series of our
preference stock, our board of directors has the authority to
fix the following terms:
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the
designation of the series;
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the number
of shares within the series;
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whether
dividends are cumulative and, if cumulative, the dates from
which dividends are cumulative;
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the rate of
any dividends, any conditions upon which dividends are payable,
and the dates of payment of dividends;
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whether the
shares are redeemable, the redemption price and the terms of
redemption;
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the
establishment of a sinking fund, if any, for the purchase or
redemption of shares;
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the amount
payable to you for each share you own if we dissolve or
liquidate;
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whether the
shares are convertible or exchangeable, the price or rate of
conversion or exchange, and the applicable terms and conditions;
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any
restrictions on issuance of shares in the same series or any
other series;
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any voting
rights applicable to the series of preference stock;
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the
seniority or parity of the dividends or assets of the series
with respect to other series of preference stock;
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whether the
holders will be entitled to any preemptive or preferential
rights to purchase additional securities; and
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any other
rights, preferences or limitations of such series.
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Your rights
with respect to your shares of preference stock will be
subordinate to the rights of our general creditors. Shares of
our preference stock that we issue will be fully paid and
nonassessable, and will not be entitled to preemptive rights
unless specified in the applicable prospectus supplement.
Our ability
to issue preference stock, or rights to purchase such shares,
could discourage an unsolicited acquisition proposal. For
purposes of the rights plan described below, each holder of our
common stock has one right for each share of common stock to
purchase from us one one-hundredth of a share of our
Series A Junior Participating Preference Stock, no par
value (the Series A preference stock). The
Series A preference stock will be issuable only in
connection with the exercise of rights under the rights plan.
For a description of the rights plan, please read
Rights Agreement. In addition, we could impede
a business combination by issuing a series of preference stock
containing class voting rights that would enable the holders of
such preference stock to block a business combination
transaction. Alternatively, we could facilitate a business
combination transaction by issuing a series of preference stock
having sufficient voting rights to provide a required percentage
vote of the stockholders. Additionally, under certain
circumstances, our issuance of preference stock could adversely
affect the voting power of the holders of our common stock.
Although our board of directors is required to make any
determination to issue any preference stock based on its
judgment as to the best interests of our stockholders, our board
of directors could act in a manner that would discourage an
acquisition attempt or other transaction that some, or a
majority, of our stockholders might believe to be in their best
interests or in which stockholders might receive a premium for
their stock over prevailing market prices of such stock. Our
board of directors does not at present intend to seek
stockholder approval prior to any issuance of currently
authorized stock, unless otherwise required by law or applicable
New York Stock Exchange requirements.
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Dividend
Policy
Our policy
is to pay out a reasonable share of net cash provided by
operating activities as dividends, consistent on average with
the payout record of past years, and consistent with the goal of
maintaining debt ratios within prudent and generally acceptable
limits. Future cash dividends, if any, will be at the discretion
of our board of directors and will depend upon, among other
things, our future operations and earnings, capital
requirements, general financial condition, contractual
restrictions and such other factors as the board of directors
may deem relevant.
Rights
Agreement
Vulcan has
entered into a shareholder rights agreement with The Bank of New
York, as rights agent, under which each shareholder has one
right for each share of common stock held. Each right entitles
the registered holder to purchase from us one one-hundredth of a
share of Vulcans Series A Junior Participating
Preference Stock, no par value, at a purchase price of $400. The
rights are subject to adjustment to prevent dilution of the
interests represented by each right. The rights are attached to
all Vulcan common stock and are represented by the certificates
representing the common stock, and no separate certificates
representing the rights will be distributed except as follows.
The rights will separate from the common stock, and be
represented by separate rights certificates, upon the earlier of:
10 days
following the date of any public announcement that a person or
group of affiliated or associated persons (an acquiring
person) has acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding common
stock or
10
business days following the commencement or announcement of an
intention to make, a tender offer or exchange offer that would
result in a person beneficially owning 15% or more of the
outstanding common stock.
Until the
rights separate from the common stock to which they will be
attached, or an earlier date on which these rights are redeemed,
exchanged or expire:
the
rights will be evidenced by the common share certificates and
will be transferred only with them,
all
common share certificates will contain a notation incorporating
the terms of the rights agreement by reference and
the
surrender for transfer of any certificates for common stock
outstanding will also constitute the transfer of the rights
associated with the common stock represented by the certificates.
As soon as
practicable after the date when the rights separate from the
common stock, right certificates will be mailed to holders of
record of common stock as of the close of business on that date
and, after that time, the separate right certificates alone will
represent the rights. Only common stock issued prior to the date
when the rights separate from the common stock will be issued
with rights. The rights are not exercisable until their
separation from the common stock and will expire on
November 15, 2008, unless our board exchanges or redeems
them earlier, as described below.
If a third
party acquires 15% or more of the outstanding common stock, as
described above, thus triggering a separation of the rights from
the common stock, each holder of a right will thereafter have
the right to receive, upon exercise and payment of the exercise
price, common stock having a value equal to two times the
exercise price.
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If, at any
time after a third party acquires, or obtains the right to
acquire beneficial ownership of, 15% or more of the outstanding
common stock, as described above,
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Vulcan is
acquired in a merger or other business combination,
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an acquiring
firm merges into Vulcan or
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50% or more
of Vulcans assets or earning power is sold or transferred,
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each holder
of a right shall thereafter have the right to receive, upon
exercise and payment of the exercise price, common stock of the
acquirer having a value equal to twice the exercise price.
Any rights
that are or were owned by an acquirer of beneficial ownership of
15% or more of the outstanding common stock will be null and
void.
At any time
prior to the earlier of the date upon which a third party
acquires, or obtains the right to acquire beneficial ownership
of, 15% of the outstanding common stock, or November 15,
2008, our board may redeem the rights in whole, but not in part,
at a redemption price of $0.01 per right. Immediately upon our
board ordering the redemption of the rights, the rights will
terminate and the holders of the rights will be entitled to
receive only this redemption price.
Our board
may amend any provision of the rights agreement without approval
of the holders of the rights prior to the time a person becomes
an acquiring person. After this date, the board may not amend
the rights agreement in any manner that would adversely affect
the interests of the holders of the rights.
Until a
right is exercised, a holder of rights will have no rights as a
Vulcan shareholder, including the right to vote and to receive
dividends, beyond its rights as an existing shareholder.
The rights
may have anti-takeover effects. The rights will cause
substantial dilution to a person or group that attempts to
acquire 15% or more of the outstanding common stock without
conditioning the offer on a substantial number of rights being
acquired. Accordingly, the existence of the rights may deter
acquirers from making takeover proposals or tender offers. The
rights are not intended to prevent a takeover, but are designed
to enhance the ability of our board to negotiate with an
acquirer on behalf of all the shareholders. The rights should
also not interfere with any merger or other business combination
approved by our board and the Vulcan shareholders because the
board may redeem the rights.
Special
Charter Provision
Our
certificate of incorporation contains a fair price
provision that applies to certain business combination
transactions involving any person that beneficially owns at
least 10% of the aggregate voting power of our outstanding
capital stock (Voting Stock) or that is an affiliate
of Vulcan that has been the beneficial owner of at least 10% of
our Voting Stock at any time in the past two years, or any
assignee of Voting Stock from such a person, each of these an
Interested Shareholder. The fair price
provision requires the affirmative vote of the holders of at
least 80% of our Voting Stock to approve any such transaction.
This voting
requirement will not apply to certain transactions, including:
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any
transaction in which the consideration to be received by the
holders of each class of capital stock is equal to the highest
of (1) the highest price per share paid by the Interested
Shareholder on the date the person first became an Interested
Shareholder; (2) the highest price per share the Interested
Shareholder paid for a share of such class, which purchase was
consummated in the past two years; (3) the fair market
value per share of the same class on the day such transaction
was
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announced;
and (4) the fair market value per share of the same class
on the day the person became an Interested Shareholder; or
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any
transaction that is approved by our continuing directors (as
defined in our certificate of incorporation).
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This
provision could have the effect of delaying or preventing change
in control in a transaction or series of transactions that did
not satisfy the fair price criteria.
The
provisions of our certificate of incorporation relating to the
fair price provision may be amended only by the
affirmative vote of the holders of at least 80% of the aggregate
voting power of our outstanding capital stock.
New
Jersey Anti-Takeover Statute
New Jersey
has adopted a type of anti-takeover statute known as a
business combination statute. Subject to numerous
qualifications and exceptions, the statute prohibits an
interested shareholder of a corporation from effecting a
business combination with the corporation for a period of five
years unless the corporations board approved the
combination prior to the shareholder becoming an interested
shareholder. In addition, but not in limitation of the five-year
restriction, if applicable, corporations such as Vulcan covered
by the New Jersey statute may not engage at any time in a
business combination with any interested shareholder of that
corporation unless the combination is approved by the board
prior to the interested shareholders stock acquisition
date, the combination receives the approval of two-thirds of the
Voting Stock of the corporation not beneficially owned by the
interested shareholder, or the combination meets minimum
financial terms specified by the statute. An interested
shareholder for this purpose is defined to include any
beneficial owner of 10% or more of the voting power of the
outstanding Voting Stock of the corporation or an affiliate or
associate of the company who within the prior five-year period
has at any time owned 10% or more of the voting power. The term
business combination is defined broadly to include,
among other things:
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the merger
or consolidation of the corporation with the interested
shareholder or any corporation that after the merger or
consolidation would be an affiliate or associate of the
interested shareholder,
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the sale,
lease, exchange, mortgage, pledge, transfer or other disposition
to an interested shareholder or any affiliate or associate of
the interested shareholder of 10% or more of the
corporations assets or
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the issuance
or transfer to an interested shareholder or any affiliate or
associate of the interested shareholder of 5% or more of the
aggregate market value of the stock of the corporation.
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DESCRIPTION
OF DEPOSITORY SHARES
We may offer
preference stock represented by depository shares and issue
depository receipts evidencing the depository shares. Each
depository share will represent a fraction of a share of
preference stock. Shares of preference stock of each series
represented by depository shares will be deposited under a
separate deposit agreement among us, a bank or trust company
acting as the depository and the holders of the
depository receipts of that series. Subject to the terms of the
applicable deposit agreement, each owner of a depository receipt
will be entitled, in proportion to the fraction of a share of
preference stock represented by the depository shares evidenced
by the depository receipt, to all the rights and preferences of
the preference stock represented by such depository shares.
Those rights include any dividend, voting, conversion,
redemption and liquidation rights. Immediately following the
issuance of the preference stock to the depository, we will
cause the depository to issue depository receipts for the
applicable series on our behalf.
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If
depository shares of a series are offered, the prospectus
supplement for such depository shares will describe the terms of
such depository shares, the applicable deposit agreement and any
related depository receipts, including the following, where
applicable:
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the payment
of dividends or other cash distributions to the holders of
depository receipts when such dividends or other cash
distributions are made with respect to the preference stock;
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the voting
by a holder of depository shares of the preference stock
underlying such depository shares at any meeting called for such
purpose;
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if
applicable, the redemption of depository shares upon our
redemption of shares of preference stock held by the depository;
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if
applicable, the exchange of depository shares upon an exchange
by us of shares of preference stock held by the depository for
debt securities or common stock;
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if
applicable, the conversion of the shares of preference stock
underlying the depository shares into shares of our common
stock, other shares of our preference stock or our debt
securities;
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the terms
upon which the deposit agreement may be amended and terminated;
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a summary of
the fees to be paid by us to the depository;
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the terms
upon which a depository may resign or be removed by us; and
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any other
terms of the depository shares, the deposit agreement and the
depository receipts.
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If a holder
of depository receipts surrenders the depository receipts at the
corporate trust office of the depository, unless the related
depository shares have previously been called for redemption,
converted or exchanged into other securities of Vulcan Materials
Company, the holder will be entitled to receive at the corporate
trust office the number of shares of preference stock and any
money or other property represented by such depository shares.
Holders of depository receipts will be entitled to receive whole
and, to the extent provided by the applicable prospectus
supplement, fractional shares of the preference stock on the
basis of the proportion of preference stock represented by each
depository share as specified in the applicable prospectus
supplement. Holders of shares of preference stock received in
exchange for depository shares will no longer be entitled to
receive depository shares in exchange for shares of preference
stock. If the holder delivers depository receipts evidencing a
number of depository shares that is more than the number of
depository shares representing the number of shares of
preference stock to be withdrawn, the depository will issue the
holder a new depository receipt evidencing such excess number of
depository shares at the same time.
The
description of depository shares in a prospectus supplement will
not necessarily be complete, and reference will be made to the
applicable deposit agreement, which will be filed with the SEC
each time we issue depository shares.
DESCRIPTION
OF WARRANTS
We may issue
warrants for the purchase of debt securities, preference stock,
depository shares, common stock or other securities. Warrants
may be issued independently or together with debt securities,
preference stock, depository shares or common stock offered by
any prospectus supplement and may be attached to or separate
from any such offered securities. Each series of warrants will
be issued under a separate warrant agreement to be entered into
between our company
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and a bank
or trust company, as warrant agent, all as set forth in the
applicable prospectus supplement relating to the particular
issue of warrants. The warrant agent will act solely as an agent
of our company in connection with the warrants and will not
assume any obligation or relationship of agency or trust for or
with any holders of warrants or beneficial owners of warrants.
If warrants
of a series are offered, the applicable prospectus supplement
will describe the terms of such warrants and the applicable
warrant agreement, including the following, where applicable:
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the
designation, aggregate principal amount, currencies,
denominations and terms of the series of debt securities
purchasable upon exercise of warrants to purchase debt
securities and the price at which such debt securities may be
purchased upon such exercise;
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the number
of shares of common stock purchasable upon the exercise of
warrants to purchase common stock and the price at which such
number of shares of common stock may be purchased upon such
exercise;
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the number
of shares and series of preference stock or depository shares
purchasable upon the exercise of warrants to purchase preference
stock or depository shares and the price at which such number of
shares of such series of preference stock or depository shares
may be purchased upon such exercise;
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the
designation and number of units of other securities purchasable
upon the exercise of warrants to purchase other securities and
the price at which such number of units of such other securities
may be purchased upon such exercise;
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the date on
which the right to exercise such warrants shall commence and the
date on which such right shall expire;
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United
States federal income tax consequences applicable to such
warrants;
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the amount
of warrants outstanding as of the most recent practicable date;
and
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any other
terms of such warrants.
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Warrants
will be issued in registered form only. The exercise price for
warrants will be subject to adjustment in accordance with the
applicable prospectus supplement.
Each warrant
will entitle the holder thereof to purchase such principal
amount of debt securities or such number of shares of common
stock, preference stock, depository shares, or other securities
at such exercise price as shall in each case be set forth in, or
calculable from, the prospectus supplement relating to the
warrants, which exercise price may be subject to adjustment upon
the occurrence of certain events as set forth in such prospectus
supplement. After the close of business on the expiration date,
or such later date to which we extend the expiration date,
unexercised warrants will become void. The place or places
where, and the manner in which, warrants may be exercised shall
be specified in the applicable prospectus supplement.
Prior to the
exercise of any warrants to purchase debt securities, preference
stock, depository shares, common stock or other securities,
holders of such warrants will not have any of the rights of
holders of debt securities, preference stock, depository shares,
common stock or other securities, as the case may be,
purchasable upon exercise, including the right to receive
payments of principal, premium, if any, or interest, if any, on
the debt securities purchasable upon such exercise or to enforce
covenants in the applicable indenture, or to receive payments of
dividends, if any, on the common stock, preference stock or
depository shares purchasable upon such exercise, or to exercise
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any
applicable right to vote associated with such common stock,
preference stock or depository shares.
The
description of warrants of a particular series in a prospectus
supplement will not necessarily be complete, and reference will
be made to the applicable warrant agreement, which will be filed
with the SEC.
DESCRIPTION
OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue
stock purchase contracts, including contracts obligating holders
to purchase from us, and obligating us to sell to the holders, a
specified number of shares of common stock or other securities
at a future date or dates, which we refer to in this prospectus
as stock purchase contracts. The price per share of
the securities and the number of shares of the securities may be
fixed at the time the stock purchase contracts are issued or may
be determined by reference to a specific formula set forth in
the stock purchase contracts. Stock purchase contracts may be
issued separately or as part of units consisting of a stock
purchase contract and debt securities, preference securities,
warrants or debt obligations of third parties, including
U.S. treasury securities, securing the holders
obligations to purchase the securities under the stock purchase
contracts, which we refer to herein as stock purchase
units. The stock purchase contracts may require holders to
secure their obligations under the stock purchase contracts in a
specified manner. The stock purchase contracts also may require
us to make periodic payments to the holders of the stock
purchase units or vice versa, and those payments may be
unsecured or refunded on some basis.
The
applicable prospectus supplement will describe the terms of the
stock purchase contracts or stock purchase units. The
description in the prospectus supplement will not necessarily be
complete, and reference will be made to the stock purchase
contracts, and, if applicable, collateral or depository
arrangements, relating to the stock purchase contracts or stock
purchase units, which will be filed with the SEC each time we
issue stock purchase contracts or stock purchase units. Material
U.S. federal income tax considerations applicable to the stock
purchase units and the stock purchase contracts will also be
discussed in the applicable prospectus supplement.
TAXATION
Any material
U.S. federal income tax consequences relating to the
purchase, ownership and disposition of any of the securities
offered by this prospectus will be set forth in the prospectus
supplement offering those securities.
PLAN OF
DISTRIBUTION
We may sell
the securities in and outside the United States through agents,
underwriters, dealers or directly to purchasers (which may
include our affiliates and shareholders), in a rights offering,
or through a combination of these methods. The prospectus
supplement for particular securities will include the terms of
the offering and the purchase price or initial public offering
price of the securities.
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Unless we
indicate otherwise in the applicable prospectus supplement, our
agents will act on a best efforts basis for the period of their
appointment.
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Our agents
may be deemed to be underwriters under the Securities Act of any
of our securities that they offer or sell.
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We may use
an underwriter or underwriters in the offer or sale of our
securities.
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If we use an
underwriter or underwriters, we will execute an underwriting
agreement with the underwriter or underwriters at the time that
we reach an agreement for the
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sale of our
securities. The underwriters will acquire the securities for
their own account.
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We will
include the names of the specific managing underwriter or
underwriters, as well as any other underwriters, and the terms
of the transactions, including the compensation the underwriters
and dealers will receive, in the applicable prospectus
supplement.
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Underwriters
will be allowed to offer securities to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as
underwriters. The underwriters will use this prospectus in
conjunction with the applicable prospectus supplement to sell
our securities.
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Unless
otherwise stated in the applicable prospectus supplement, the
underwriters obligation to purchase the securities will be
subject to certain conditions, and the underwriters will be
obligated to purchase all the offered securities if they
purchase any of them.
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The
underwriters may change from time to time any initial public
offering price and any discounts or concessions allowed or paid
to dealers.
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The
underwriters will be able to resell the securities from time to
time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying
prices determined at the time of sale.
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During and
after an offering through underwriters, the underwriters will be
allowed to purchase and sell the securities in the open market.
These transactions may include overallotment and stabilizing
transactions and purchases to cover syndicate short positions
created in connection with the offering.
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The
underwriters may also impose a penalty bid, which means that
selling concessions allowed to syndicate members or other
broker-dealers for the offered securities sold for their account
may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail
in the open market. If commenced, the underwriters may
discontinue these activities at any time.
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We may use a
dealer to sell our securities.
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If we use a
dealer, we, as principal, will sell our securities to the dealer.
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The dealer
will then sell our securities to the public at varying prices
that the dealer will determine at the time it sells our
securities.
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We will
include the name of the dealer and the terms of our transactions
with the dealer in the applicable prospectus supplement.
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We may
solicit directly offers to purchase our securities, and we may
directly sell our securities to institutional or other
investors. We will describe the terms of our direct sales in the
applicable prospectus supplement.
We may sell
our securities in accordance with a redemption or repayment
pursuant to their terms by one or more remarketing firms, acting
as principals for their own accounts or as agents by
25
us. We will
identify any remarketing firm, the terms of its agreements, if
any, with us, and its compensation in the applicable prospectus
supplement.
We may
authorize our agents and underwriters to solicit offers by
certain institutions to purchase our securities at the public
offering price under delayed delivery contracts.
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If we use
delayed delivery contracts, we will disclose that we are using
them in our applicable prospectus supplement and will tell you
when we will demand payment and delivery of the securities under
the delayed delivery contracts.
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These
delayed delivery contracts will be subject only to the
conditions that we set forth in the applicable prospectus
supplement.
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We will
indicate in the applicable prospectus supplement the commission
that underwriters and agents soliciting purchases of our
securities under delayed contracts will be entitled to receive.
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We may
indemnify agents, underwriters, dealers and remarketing firms,
against certain liabilities, including liabilities under the
Securities Act. Our agents, underwriters, dealers and
remarketing firms, or their affiliates, may be customers of,
engage in transactions with or perform services for us, in the
ordinary course of business.
Some or all
of the securities that we offer through this prospectus may be
new issues of securities with no established trading market. Any
underwriters to whom we sell our securities for public offering
and sale may make a market in those securities, but they will
not be obligated to do so and they may discontinue any market
making at any time without notice. Accordingly, we cannot assure
you of the liquidity of, or continued trading markets for, any
securities that we offer.
26
LEGAL
MATTERS
Unless
otherwise indicated in the applicable prospectus supplement, as
to matters governed by New Jersey law, Lowenstein Sandler PC,
and as to matters governed by New York law, Wachtell,
Lipton, Rosen & Katz will issue an opinion for us on
the validity of the securities offered hereby. If legal matters
in connection with offerings made by this prospectus are passed
on by counsel for the underwriters, dealers or agents, if any,
that counsel will be named in the applicable prospectus
supplement.
EXPERTS
The
consolidated financial statements and managements report
on the effectiveness of internal control over financial
reporting of Legacy Vulcan incorporated by reference from Legacy
Vulcans Current Report on
Form 8-K
filed on July 12, 2007, and the related financial statement
schedule for each of the three years in the period ended
December 31, 2006, incorporated by reference from Legacy
Vulcans Annual Report on
Form 10-K
and the financial statements from which the Selected Historical
Financial Data included in this prospectus have been derived
have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in
their reports, which are incorporated herein by reference (which
reports (1) express an unqualified opinion on the
consolidated financial statements, which includes an explanatory
paragraph referring to the Companys adoption of SFAS
123(R), Share-Based Payment; SFAS 158,
Employers Accounting for Defined Benefit Pension and
Other Postretirement Plans, an amendment of FASB Statements
No. 87, 88, 106, and 132(R); and EITF Issue
No. 04-6,
Accounting for Stripping Costs Incurred During Production
in the Mining Industry; and an explanatory paragraph
referring to Legacy Vulcans retrospective application of
FSP No. AUG AIR-1, Accounting for Planned Major
Maintenance Activities, (2) express an unqualified
opinion on the financial statement schedule, (3) express an
unqualified opinion on managements assessment regarding
the effectiveness of internal control over financial reporting,
and (4) express an unqualified opinion on the effectiveness
of internal control over financial reporting), and have been so
incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
The
consolidated financial statements and schedule of Florida Rock
as of September 30, 2007 and 2006, and for each of the
years in the three-year period ended September 30, 2007
have been incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent registered public accounting
firm, incorporated by reference herein, and upon the authority
of the said firm as experts in accounting and auditing. The
audit report covering the consolidated financial statements for
the year ended September 30, 2007 refers to a change in the
method of computing share-based compensation as of
October 1, 2005 and a change in the method of accounting
for defined benefit postretirement plans as of
September 30, 2007.
27
Vulcan Materials
Company
11,500,000 Shares
Common Stock
Goldman, Sachs &
Co.
Merrill Lynch &
Co.
J.P.Morgan
Wachovia Securities