As filed with the Securities and Exchange Commission on March 16, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
VULCAN MATERIALS COMPANY
(Exact name of Registrant as specified in its charter)
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| New Jersey |
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20-8579133 |
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incorporation or organization) |
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(IRS Employer
Identification No.) |
1200 Urban Center Drive
Birmingham, Alabama 35242
(205) 298-3000
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Michael R.
Mills, Esquire
Senior Vice President and General Counsel
Vulcan Materials Company
1200 Urban Center Drive
Birmingham, Alabama 35242
(205) 298-3000
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Christopher E. Leon, Esquire
Womble Carlyle Sandridge & Rice, LLP
One West Fourth Street
Winston-Salem, North Carolina 27101
(336) 721-3600
Approximate
date of commencement of proposed sale to public: From time to time after the effective date of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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| Large Accelerated |
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Accelerated filer |
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| Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION
OF REGISTRATION FEE
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| Title of Each Class of
Securities to be Registered |
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Amount to be
Registered/Proposed
Maximum Offering Price
Per Security |
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Proposed Maximum
Aggregate Offering
Price/Amount of
Registration Fee |
| Debt Securities, Common Stock, $1 par value per share, Preference Stock, Depository Shares,
Warrants, Stock Purchase Contracts and Stock Purchase Units |
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(1) |
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(1) |
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An indeterminate aggregate initial offering price or number of securities is being registered as may from time to time be issued at indeterminate prices. Separate consideration may or may not be received for securities
that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. In accordance with Rule 456(b) and Rule 457(r), the registrant is deferring payment of the entire registration fee, which will be
paid from time to time in connection with one or more offerings to be made hereunder. |
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 herein and therein,
carefully before you invest.
This prospectus may not be used to sell our securities unless it is accompanied by a prospectus supplement.
You should carefully read and evaluate the risk factors included in the documents we incorporate by reference in this prospectus, 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 these securities from time to time in amounts, at prices
and on other terms to be determined at the time of the offering. 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 March 16, 2015.
TABLE OF CONTENTS
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.”
We have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus or in
any free writing prospectuses we have prepared. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell or soliciting an offer to
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 included or incorporated by reference in 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.
THE COMPANY
Vulcan Materials Company, a New Jersey corporation, is the nation’s largest producer of construction aggregates (primarily crushed stone,
sand, and gravel) and a major producer of asphalt mix and ready-mixed concrete. We operated 335 aggregates facilities during the year ended December 31, 2014.
Our common stock is listed on the New York Stock Exchange under the symbol “VMC.” Additional information about Vulcan Materials
Company and its subsidiaries can be found in our documents filed with the SEC, which are incorporated herein by reference. See “Where You Can Find More Information and Incorporation by Reference of Certain Documents” in this prospectus.
Our principal executive office is located at 1200 Urban Center Drive, Birmingham, Alabama 35242 and our telephone number is
(205) 298-3000.
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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 Vulcan’s most recent Annual Report on Form 10-K, 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 herein or therein, 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.”
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 read and copy any document we
file with the SEC at the SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the SEC’s public reference facilities by calling the SEC at 1-800-SEC-0330. Our
SEC filings are also accessible through the Internet at the SEC’s 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 us that is not included in or delivered with this prospectus.
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| Vulcan Materials Company (File No. 001-33841)
(formerly 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, 2014 |
| Current Reports on Form 8-K |
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Current Report on Form 8-K filed on February 17, 2015, February 18, 2015, March 10, 2015, and March 13, 2015. |
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. We do not incorporate by reference any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K in
any past or future filings, unless specifically stated otherwise.
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, Telephone: (205) 298-3000.
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.
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INFORMATION REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus, including the documents we incorporate by reference, contains “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. These statements reflect our intent, belief or current expectations. 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 our Annual Report on
Form 10-K for the year ended December 31, 2014, incorporated by reference herein, 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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general economic and business conditions; |
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the timing and amount of federal, state and local funding for infrastructure; |
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changes in our effective tax rate that can adversely impact results; |
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the increasing reliance on information technology infrastructure for our ticketing, procurement, financial statements and other processes can adversely affect operations in the event that the infrastructure does not
work as intended, experiences technical difficulties or is subjected to cyber attacks; |
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the impact of the state of the global economy on our business and financial condition and access to capital markets; |
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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 actions; |
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the outcome of pending legal proceedings; |
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pricing of our products; |
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weather and other natural phenomena; |
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costs of hydrocarbon-based raw materials; |
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the amount of long-term debt and interest expense we incur; |
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changes in interest rates; |
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the impact of our below investment grade debt rating on our cost of capital; |
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volatility in pension plan asset values and liabilities which may require cash contributions to our pension plans; |
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the impact of environmental clean-up costs and other liabilities relating to previously divested businesses; |
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our ability to secure and permit aggregates reserves in strategically located areas; |
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our ability to successfully implement our new divisional structure and changes in our management team; |
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our ability to manage and successfully integrate acquisitions; |
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the potential of goodwill or long-lived asset impairment; |
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the potential impact of future legislation or regulations relating to climate change, greenhouse gas emissions or the definition of minerals; |
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the risks set forth in “Risk Factors” beginning on page 2 of this prospectus and Item 3 “Legal Proceedings,” Item 7 “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and Note 12 “Commitments and Contingencies” to the consolidated financial statements in our Annual Report on Form 10-K for the year ended December 31, 2014, incorporated by reference herein; and
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assumptions, risks and uncertainties detailed from time to time in our filings made with the SEC. |
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RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges is set forth below for the periods indicated. 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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Earnings were insufficient to cover fixed charges by approximately $192.4 million for the year ended December 31, 2010, $153.0 million for the year ended December 31, 2011, $119.7 million for the year ended
December 31, 2012, and $1,384,000 for the year ended December 31, 2013. |
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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 outstanding borrowings under our revolving credit agreement, 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.
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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. References in this “Description of Debt Securities” to “Vulcan,” “we,” “us” and “our” or similar terms
refer solely to Vulcan Materials Company and not to any of our subsidiaries.
General
We may issue from time to time one or more series of debt securities under an indenture (the “Indenture”) between us and Regions
Bank, an Alabama banking corporation (as successor to Wilmington Trust Company), as trustee (the “Trustee”). The Indenture will not limit the amount of debt securities that we may issue. The Trustee will act as authenticating agent, paying
agent, registrar and transfer agent for the debt securities.
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, 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, defines 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. |
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 discount below their stated
principal amount in excess of a certain de minimus 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 material
U.S. 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 303) 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.
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.
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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 of or within one year after
the acquisition of 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) |
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, all as set forth in our most recent consolidated balance
sheet. (Section 101)
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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 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) |
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:
(i) 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) 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;
(iii) 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
(iv) 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)
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 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;
(v) certain events involving bankruptcy, insolvency or reorganization; and
(vi) any other event of default in respect of the debt securities of that series. (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)
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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) |
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 with respect to the debt securities of that series; |
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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) |
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 and the nature and status of such defaults. (Section 1004)
If a default of which a responsible officer of the Trustee has actual knowledge occurs with respect to the debt securities, the Trustee shall
give the holders of the debt securities notice of such default in accordance with the requirements of the Trust Indenture Act. However, in the case of certain events of default, the Indenture provides that no such notice shall be given to holders of
the debt securities until at least 30 days after the occurrence of such events of default. (Section 602)
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;
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(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)
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, 512 and 513)
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
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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:
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in certain circumstances, we may omit to comply with certain restrictive covenants, including those described under “Covenants — Restrictions on Secured Debt,” “Covenants — Limitation on Sale
and Leasebacks,” “SEC Reports,” “Consolidation, Merger and Sale of Assets” and other covenants identified in any supplemental indenture; and |
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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. |
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)
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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 Regions Bank as security registrar and transfer agent. Any security 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) |
Authentication and Delivery
The debt
securities shall be executed on behalf of Vulcan by our Chairman of the Board, Vice Chairman of the Board, President, or any Vice President and attested by our Secretary or any Assistant Secretary. The signatures of any of these officers on the debt
securities may be manual or by facsimile. We may deliver the debt securities so executed by our proper officers to the Trustee for authentication, together with a company order for authentication and delivery of such debt securities, and the Trustee
in accordance with such company order shall authenticate and deliver the debt securities, subject to certain exceptions stated in the Indenture. (Section 303)
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 DTC’s nominee (including the global securities representing the notes) will be made in immediately available funds to DTC’s nominee as the registered
owner of the global securities.
We have appointed Regions Bank 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)
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Concerning the Trustee and Agent
Regions Bank will initially act as trustee, authenticating agent, paying agent, registrar and transfer agent for the debt securities issued
pursuant to this prospectus.
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)
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. |
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
participant’s 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 DTC’s 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 DTC’s nominee will be made in immediately
available funds to DTC’s nominee as the registered owner of the global securities. We and the
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trustee will treat DTC’s 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 DTC’s 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, which are 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. 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 Computershare Shareowner Services, LLC.
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. |
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. 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.
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 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 stockholder of a corporation from effecting a business
combination with the corporation for a period of five years unless (i) the corporation’s board approved the combination prior to the shareholder becoming an interested stockholder or (ii) the corporation’s board approved the
transaction or series of transactions which caused the person to become an interested stockholder prior to becoming an interested stockholder and any subsequent business combination with that interested stockholder is approved by independent members
of the board and the holders of a majority of the voting stock not beneficially owned by the interested stockholder. 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 stockholder of that corporation unless the combination is approved by the board prior to the interested stockholder’s stock acquisition date, the
combination receives the approval of two-thirds of the Voting Stock of the corporation not beneficially owned by the interested stockholder, or the combination meets minimum financial terms specified by the statute. An “interested
stockholder” 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 stockholder or any corporation that after the merger or consolidation would be an affiliate or associate of the interested stockholder,
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the sale, lease, exchange, mortgage, pledge, transfer or other disposition to an interested stockholder or any affiliate or associate of the interested stockholder of 10% or more of the corporation’s assets or
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the issuance or transfer to an interested stockholder or any affiliate or associate of the interested stockholder 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.
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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• |
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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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• |
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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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• |
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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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• |
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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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• |
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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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• |
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the terms upon which the deposit agreement may be amended and terminated; |
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• |
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a summary of the fees to be paid by us to the depository; |
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• |
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the terms upon which a depository may resign or be removed by us; and |
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• |
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any other terms of the depository shares, the deposit agreement and the depository receipts. |
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.
21
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 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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• |
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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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• |
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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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• |
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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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• |
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United States federal income tax consequences applicable to such warrants; |
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• |
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the amount of warrants outstanding as of the most recent practicable date; and |
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• |
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any other terms of such warrants. |
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 any applicable right to vote associated with such common stock, preference stock or depository shares.
22
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. |
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 sale of our securities. The underwriters will
acquire the securities for their own account. |
23
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• |
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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,
the proceeds to be received from the sale of the securities and any exchanges on which the securities may be listed, in the applicable prospectus supplement. |
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• |
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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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• |
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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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• |
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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. |
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. |
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 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. |
24
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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. |
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.
In compliance with the guidelines of the Financial Industry Regulatory Authority (“FINRA”), the aggregate maximum discount,
commission, fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of the gross proceeds of any offering pursuant to this prospectus and any applicable prospectus
supplement.
If at the time of any offering made under this prospectus a member of FINRA participating in the offering has a
“conflict of interest” as defined in FINRA Rule 5121 (“Rule 5121”), that offering will be conducted in accordance with the relevant provisions of Rule 5121.
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.
25
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, as to matters governed by New Jersey law, Lowenstein Sandler LLP, and as
to matters governed by New York law, Womble Carlyle Sandridge & Rice, LLP 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 incorporated in this prospectus by reference from
Vulcan’s Annual Report on Form 10-K for the year ended December 31, 2014, and the effectiveness of Vulcan’s 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 have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| ITEM 14. |
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
The following table sets forth the costs and expenses payable by
Vulcan Materials Company, in connection with sales of the securities being registered.
|
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Per Offering* |
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| SEC filing fee |
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$ |
|
** |
| Legal fees and expenses |
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* |
| Accounting fees and expenses |
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* |
| Trustee’s fees and expenses (including counsel fees) |
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* |
| Printing fees |
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* |
| Transfer agent fees |
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|
* |
| Rating agencies’ fees |
|
|
|
* |
| Miscellaneous |
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* |
| Total |
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$ |
|
* |
| * |
Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of the securities are not currently determinable. |
| ** |
Under SEC Rules 456(b) and 457(r), the SEC registration fee will be paid at the time of any particular offering of securities under this registration statement and is therefore not currently determinable.
|
| ITEM 15. |
INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
Section 14A:3-5 of the New Jersey Business Corporation Act
empowers a New Jersey corporation to indemnify present and former directors, officers, employees or agents of the corporation and certain other specified persons. Article IV of the By-Laws of the Registrant provides as follows:
| (a) |
Subject to the provisions of this Article IV, the corporation shall indemnify the following persons to the fullest extent permitted and in the manner provided by and the circumstances described in the laws of the State
of New Jersey, including Section 14A:3-5 of the New Jersey Business Corporation Act and any amendments thereof or supplements thereto: |
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(i) |
any person who is or was a director, officer, employee or agent of the corporation; |
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(ii) |
any person who is or was a director, officer, employee or agent of any constituent corporation absorbed by the corporation in a consolidation or merger, but only to the extent that (A) the constituent corporation
was obligated to indemnify such person at the effective date of the merger or consolidation or (B) the claim or potential claim of such person for indemnification was disclosed to the corporation and the operative merger or consolidation
documents contain an express agreement by the corporation to pay the same; |
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(iii) |
any person who is or was serving at the request of the corporation, or any partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise, whether or not for profit; and
|
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(iv) |
the legal representative of any of the foregoing persons (collectively, a “Corporate Agent”). |
| (b) |
Anything herein to the contrary notwithstanding, the corporation shall not be obligated under this Article IV to provide indemnification (i) to any bank, trust company, insurance company, partnership or other
entity, or any director, officer, employee or agent thereof or (ii) to any other person who is not a director, officer or employee of the corporation, in respect of any service by such person or entity, whether at the request of the corporation
or by agreement therewith, as investment advisor, actuary, custodian, trustee, fiduciary or consultant to any employee benefit plan. |
II-1
| (c) |
To the extent that any right of indemnification granted hereunder requires any determination that a Corporate Agent shall have been successful on the merits or otherwise in any Proceeding (as hereinafter defined) or in
defense of any claim, issue or matter therein, the Corporate Agent shall be deemed to have been “successful” if, without any settlement having been made by the Corporate Agent, (i) such Proceeding shall have been dismissed or
otherwise terminated or abandoned without any judgment or order having been entered against the Corporate Agent, (ii) such claim, issue or other matter therein shall have been dismissed or otherwise eliminated or abandoned as against the
Corporate Agent, or (iii) with respect to any threatened Proceeding, the Proceeding shall have been abandoned or there shall have been a failure for any reason to institute the Proceeding within a reasonable time after the same shall have been
threatened or after any inquiry or investigation that could have led to any such Proceeding shall have been commenced. The Board of Directors or any authorized committee thereof shall have the right to determine what constitutes a “reasonable
time” or an “abandonment” for purposes of this paragraph (c), and any such determination shall be conclusive and final. |
| (d) |
To the extent that any right of indemnification granted hereunder shall require any determination that the Corporate Agent has been involved in a Proceeding by reason of his or her being or having been a Corporate
Agent, the Corporate Agent shall be deemed to have been so involved if the Proceeding involves action allegedly taken by the Corporate Agent for the benefit of the corporation or in the performance of his or her duties or the course of his or her
employment for the corporation. |
| (e) |
If a Corporate Agent shall be a party defendant in a Proceeding, other than a Proceeding by or in the right of the corporation, and the Board of Directors of a duly authorized committee of disinterested directors shall
determine that it is in the best interests of the corporation for the corporation to assume the defense of any such Proceeding, the board of Directors or such committee may authorize and direct that the corporation assume the defense of the
Proceeding and pay all expenses in connection therewith without requiring such Corporate Agent to undertake to pay or repay any part thereof. Such assumption shall not affect the right of any such Corporate Agent to employ his or her own counsel or
to recover indemnification under this By-Law to the extent that he may be entitled thereto. |
| (f) |
As used herein, the term “Proceeding” shall mean and include any pending, threatened or completed civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal therein and any
inquiry or investigation which could lead to such action, suit or proceeding. |
| (g) |
The rights conferred upon indemnitees under this Article IV shall not be exclusive of any other rights to which any Corporate Agent seeking indemnification hereunder may be entitled. The rights conferred upon
indemnitees under this Article IV shall be contract rights that vest at the time of such person’s service to or at the request of the corporation and such rights shall continue as to an indemnitee who has ceased to be a Corporate Agent and
shall inure to the benefit of the indemnitee’s heirs, executors and administrators. |
| (h) |
Any amendment, modification, alteration or repeal of this Article IV that in any way diminishes, limits, restricts, adversely affects or eliminates any right of an indemnitee or his or her successors to indemnification,
advancement of expenses or otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with respect to any actual or alleged state of facts, occurrence, action or omission then
or previously existing, or any action, suit or proceeding previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action or omission. |
II-2
|
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| EXHIBIT
NUMBER |
|
DESCRIPTION |
|
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| 1.1(1) |
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Form of Underwriting Agreement |
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| 3.1(2) |
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Certificate of Incorporation (Restated 2007) of Vulcan Materials Company (formerly known as Virginia Holdco, Inc.), filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K on November 16, 2007 |
|
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| 3.2(2) |
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Amended and Restated By-Laws of Vulcan Materials Company (as amended through February 13, 2015) filed as Exhibit 3(b) to the Company’s Annual Report on Form 10-K on February 27, 2015 |
|
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| 4.1(2) |
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Indenture between the Company and Wilmington Trust Company, as Trustee, filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K on December 11, 2007 |
|
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| 4.3(1) |
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Form of Debt Securities |
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| 4.4(1) |
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Form of Depository Agreement |
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| 4.5(1) |
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Form of Depository Receipt |
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| 4.6(1) |
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Form of Warrant Agreement |
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| 4.7(1) |
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Form of Warrant Certificate |
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| 4.8(1) |
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Form of Stock Purchase Contract |
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| 4.9(1) |
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Form of Stock Purchase Unit |
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| 5.1(3) |
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Opinion of Lowenstein Sandler LLP |
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| 5.2(3) |
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Opinion of Womble Carlyle Sandridge & Rice, LLP |
|
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| 12.1(3) |
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Statement Regarding Computation of Ratios |
|
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| 23.1(3) |
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Consent of Deloitte & Touche LLP, independent registered public accounting firm |
|
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| 23.2(3) |
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Consent of Lowenstein Sandler LLP (included in Exhibit 5.1) |
|
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| 23.3(3) |
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Consent of Womble Carlyle Sandridge & Rice, LLP (included in Exhibit 5.2) |
|
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| 24.1(3) |
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Powers of Attorney of Certain Directors |
|
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| 25.1(3) |
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Trustee under the Indenture |
| 1. |
To be filed by amendment or as an exhibit to a report filed by Vulcan Materials Company under the Securities Exchange Act of 1934, as amended, and incorporated herein by reference. |
| 2. |
Incorporated by reference. |
The undersigned Registrant hereby undertakes:
| (a) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(ii) |
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total |
II-3
| |
dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; |
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(iii) |
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
|
provided, however, that paragraphs (a)(i), (a)(ii) and (a)(iii) of this section do not apply if the registration statement is on Form S-3
or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| (b) |
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (d) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| |
(i) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration
statement; and |
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(ii) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (e) |
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any
of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| |
(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| |
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
II-4
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
|
| |
(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of
the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that is has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Birmingham, State of Alabama, on the 16th day of March, 2015.
|
|
|
| VULCAN MATERIALS COMPANY |
|
|
| By: |
|
/s/ J. Thomas Hill |
|
|
J. Thomas Hill |
|
|
President and Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed
below by the following persons in the capacities and on the dates indicated below.
|
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
| /s/ J. Thomas Hill
J. Thomas Hill |
|
President, Chief Executive Officer
and Director (Principal Executive
Officer) |
|
March 16, 2015 |
|
|
|
| /s/ John R. McPherson
John R. McPherson |
|
Executive Vice President and Chief
Financial and Strategy Officer
(Principal Financial Officer) |
|
March 16, 2015 |
|
|
|
| /s/ Ejaz A. Khan
Ejaz A. Khan |
|
Vice President, Controller and
Chief Information Officer
(Principal Accounting Officer) |
|
March 16, 2015 |
|
|
|
| Donald M. James |
|
Chairman |
|
|
| Elaine L. Chao |
|
Director |
|
|
| Thomas A. Fanning |
|
Director |
|
|
| O.B. Grayson Hall, Jr. |
|
Director |
|
|
| Cynthia L. Hostetler |
|
Director |
|
|
| Douglas J. McGregor |
|
Director |
|
|
| James T. Prokopanko |
|
Director |
|
|
| Donald B. Rice |
|
Director |
|
|
| Lee J. Styslinger, III |
|
Director |
|
|
| Vincent J. Trosino |
|
Director |
|
|
| Kathleen Wilson-Thompson |
|
Director |
|
|
|
|
|
| /s/ Michael R. Mills
Michael R. Mills
Attorney-in-Fact For each of the
Directors Listed Above |
|
|
|
March 16, 2015 |
|
|
|
|
Richard T. O’Brien |
|
Director |
|
March 16, 2015 |
II-6
Exhibit 5.1
[LETTERHEAD OF LOWENSTEIN SANDLER LLP]
March 16, 2015
Vulcan Materials Company
1200 Urban Center Drive
Birmingham, Alabama 35242
| |
Re: |
Vulcan Materials Company Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel to Vulcan Materials Company, a New Jersey corporation (the “Company”), in connection with
the Registration Statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company with the Securities and Exchange Commission (the “SEC”) in connection with the registration
pursuant to the Securities Act of 1933, as amended (the “Act”), that we understand will be automatically effective under the Act pursuant to Rule 462(e) promulgated thereunder, of an indeterminate amount of the Company’s debt
securities (the “Debt Securities”), which may be issued in one or more series under one or more indentures (the “Indentures”), including the Form of Indenture attached as Exhibit 4.1 to the Registration Statement,
between the Company and Regions Bank, as successor to Wilmington Trust Company, as trustee (the “Trustee”), shares of the Company’s common stock, $1.00 par value (the “Common Stock”), shares of the
Company’s preferred stock, no par value (the “Preference Stock”), depository shares (the “Depository Shares”), warrants (the “Warrants”), stock purchase contracts (the “Stock Purchase
Contracts”), stock purchase units (the “Stock Purchase Units”) and such indeterminate amount of Debt Securities, and number of shares of Common Stock or Preference Stock as may be issued upon conversion, exchange or
exercise of any Debt Securities, Preference Stock, Depository Shares, Warrants, Stock Purchase Contracts or Stock Purchase Units, including such shares of Common Stock or Preference Stock as may be issued pursuant to anti-dilution adjustments, in
amounts, at prices and on terms to be determined at the time of offering. The Debt Securities, Common Stock, the Preference Stock, the Depository Shares, the Warrants, the Stock Purchase Contracts and the Stock Purchase Units are collectively
referred to herein as the “Securities”.
In connection with the opinions contained in this letter, we have examined and
are familiar with copies of the Registration Statement, the Company’s Restated Certificate of Incorporation, the Company’s By-Laws and the Form of Indenture attached as Exhibit 4.1 to the Registration Statement. In addition, we have
examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or appropriate for the purposes
of the opinions contained herein. In such examination, we have assumed (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies;
(c) each natural person signing any document reviewed by us had the legal capacity to do so, (d) each person signing in a representative capacity (other than on behalf of the Company) any document reviewed by us had authority to sign in
such capacity, (e) the truth, accuracy and completeness of the information,
representations and warranties contained in the records, documents, instruments and certificates we have
reviewed; (f) the Registration Statement, and any amendments thereto (including post-effective amendments), will have become effective under the Act and comply with all applicable laws; (g) a prospectus supplement will have been filed with
the SEC describing the Securities offered thereby; (h) any Debt Securities that may be issued will be issued in a form that complies with the Indentures and any Debt Securities, the Indentures and any supplemental indentures to be entered into
in connection with the issuance of such Debt Securities will be manually signed or countersigned, as the case may be, by duly authorized officers of the Trustee or authenticating agent; (i) the Indenture and any supplemental indentures to be
entered into in connection with the issuance of such Debt Securities will be qualified pursuant to the Trust Indenture Act; (j) all Securities will be issued and sold in compliance with applicable federal and state securities laws, including
applicable provisions of “blue sky” laws, and in the manner stated in the Registration Statement and the applicable prospectus supplement; (k) a definitive purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (l) the organizational documents of the Company, each as amended to the date hereof, will not have been amended from the
date hereof in a manner that would affect the validity of any of the opinions rendered herein; (m) any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly authorized, created and,
if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; (n) with respect to shares of Common Stock or Preference Stock offered, there will be sufficient shares of Common Stock or Preference Stock authorized
under the Company’s organizational documents and not otherwise reserved for issuance; (o) with respect to the Debt Securities and the related Indenture, Depository Shares, the Warrants, the Stock Purchase Contracts and the Stock Purchase
Units, that each such security and the Indenture, as applicable, is governed by the laws of the State of New Jersey; and (p) with respect to the depository share agreement governing the Depository Shares to be offered by the Company pursuant to
the Registration Statement (the “Depository Share Agreement”), that such agreement is governed by the laws of the State of New Jersey. We have also assumed the due authorization and valid execution and delivery by each of the
Company and the other parties thereto to each of the Registration Statement, the Indentures, the Debt Securities and any definitive purchase or other similar agreement with respect to any Debt Securities offered (collectively, the
“Transaction Documents”), and that the execution, delivery and performance of the Transaction Documents will not (i) violate, conflict with or result in a breach of, or require any consent under, the charters, bylaws or
equivalent organizational documents of any such party or the laws of the jurisdictions of organization or applicable laws with respect to such parties, (ii) violate any requirement or restriction imposed by any order, writ, judgment,
injunction, decree, determination or award of any court or governmental body having jurisdiction over it or any of its assets or (iii) constitute a breach or violation of any agreement or instrument that is binding upon such parties, and we
have assumed that each such other party (in the case of parties which are not natural persons) has been duly organized and is validly existing and in good standing under its jurisdiction of organization, that each such other party has the legal
capacity, power and authority (corporate or otherwise) to enter into, deliver and perform its obligations thereunder and that each of the Transaction Documents constitutes the valid and legally binding obligation of all such other parties,
enforceable against them in accordance with its terms.
Our opinions contained herein are expressed solely with respect to the federal laws of the
United States and the laws of the State of New Jersey. We express no opinion as to matters involving the laws of any jurisdiction other than the State of New Jersey and the United States. The opinions contained herein are limited to the present
corporate laws of the State of New Jersey and the present federal laws of the United States and to the present judicial interpretations thereof and to the facts as they presently exist. We undertake no obligation to advise you as a result of
developments occurring after the date hereof or as a result of facts or circumstances brought to our attention after the date hereof.
Based upon the foregoing, and subject to the qualifications set forth in this letter, we are of the opinion that:
1. With respect to any shares of Common Stock to be offered by the Company pursuant to the Registration Statement (the “Offered Common
Shares”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the
Offered Common Shares has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Common Shares are to be sold pursuant to a firm commitment underwritten offering,
the underwriting agreement with respect to the Offered Common Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board of Directors (the “Board”), including any
appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Common Shares, the consideration to be received therefor (which shall be at least equal
to the aggregate par value of such shares of Common Stock) and related matters, (v) the terms of the issuance and sale of the Offered Common Shares have been duly established in conformity with the organizational documents of the Company, do
not violate any applicable law or result in a default under or breach of any agreement or instrument binding upon the Company and comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the
Company and (vi) certificates in the form required under the New Jersey Business Corporation Act representing the Offered Common Shares are duly executed, countersigned, registered and delivered upon receipt of the agreed-upon consideration
therefor, the Offered Common Shares (to the extent such shares of Common Stock are to be issued upon the conversion, exchange or exercise of any Debt Securities, Preference Stock, Depository Shares, Warrants, Stock Purchase Contracts or Stock
Purchase Units, registered on the Registration Statement, when such shares have been duly issued and delivered as contemplated by the terms of the applicable Indenture relating to such Debt Securities, the Preference Stock, the Depository Share
Agreement relating to such Depository Shares, the Warrant Agreement relating to such Warrants, or the Stock Purchase Contracts or Stock Purchase Units, respectively), when issued and sold in accordance with the applicable underwriting agreement with
respect to the Offered Common Shares or any other duly authorized, executed and delivered valid and binding purchase or agency agreement for consideration that shall be at least equal to the aggregate par value of such shares of Common Stock, will
be legally issued, fully paid and nonassessable.
2. With respect to the shares of any series of Preference Stock to be offered by the
Company pursuant to the Registration Statement (the “Offered Preference Shares”), when (i) the Registration Statement, as finally amended (including all necessary post-effective
amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet
with respect to the Offered Preference Shares has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) if the Offered Preference Shares are to be sold pursuant to a firm
commitment underwritten offering, the underwriting agreement with respect to the Offered Preference Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) the Board, including any appropriate
committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance, terms and sale of the Offered Preference Shares, the consideration to be received therefor and related matters,
(v) an amendment to the certificate of incorporation of the Company containing the terms of each new series of Preference Stock has been filed with the New Jersey State Treasurer, (vi) the terms of the Offered Preference Shares and of
their issuance and sale have been duly established in conformity with the terms of the particular series as established by the Board, so as not to violate any applicable law, the organizational documents of the Company or result in a default under
or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vii) certificates in the form
required under the New Jersey Business Corporation Act representing the Offered Preference Shares are duly executed, countersigned, registered and delivered upon receipt of the agreed-upon consideration therefor, the Offered Preference Shares (to
the extent such shares of Preference Stock are to be issued upon the conversion, exchange or exercise of any Debt Securities, Preference Stock, Depository Shares, Warrants, Stock Purchase Contracts or Stock Purchase Units, registered on the
Registration Statement, when such shares have been duly issued and delivered as contemplated by the terms of the applicable Indenture relating to such Debt Securities, the Preference Stock, the Depository Share Agreement relating to such Depository
Shares, the Warrant Agreement relating to such Warrants, or the Stock Purchase Contracts or Stock Purchase Units, respectively), when issued or sold in accordance with the applicable underwriting agreement or any other duly authorized, executed and
delivered valid and binding purchase or agency agreement, will be legally issued, fully paid and nonassessable.
3. With respect to any
Depository Shares to be offered by the Company pursuant to the Registration Statement (the “Offered Depository Shares”), when (i) the Registration Statement, as finally amended (including all necessary post-effective
amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Depository Shares has been prepared, delivered and filed in compliance with the Act and the applicable rules
and regulations thereunder, (iii) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Depository Shares, the
consideration to be received therefor and related matters, (iv) the Depository Share Agreement has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the issuance and sale of the
Offered Depository Shares have been duly established in conformity with the Depository Share Agreement, so as not to violate any applicable law, the organizational documents of the Company or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vi) the Offered Depository Shares have been duly executed and
delivered against receipt of the agreed-upon consideration therefore, pursuant to the Depository Share Agreement, the Company’s obligations under the Depository Share Agreement will be valid, binding and enforceable obligations of the Company.
4. With respect to any Warrants to be offered by the Company pursuant to the Registration
Statement (the “Offered Warrants”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement
or term sheet with respect to the Offered Warrants has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) the Board, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Warrants, the consideration to be received therefor and related matters, (iv) the warrant agreement with respect to the
Offered Warrants (the “Warrant Agreement”) has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the issuance and sale of the Offered Warrants have been duly established
in conformity with the Warrant Agreement, so as not to violate any applicable law, the organizational documents of the Company or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (vi) the Offered Warrants have been duly executed and delivered against receipt of the agreed-upon consideration therefore,
pursuant to the Warrant Agreement, the Offered Warrants will be valid, binding and enforceable obligations of the Company.
5. With
respect to any Stock Purchase Contracts or Stock Purchase Units to be offered by the Company pursuant to the Registration Statement (the “Offered Stock Purchase Contracts and Stock Purchase Units”), when (i) the Registration
Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to the Offered Stock Purchase Contracts and Stock
Purchase Units has been prepared, delivered and filed in compliance with the Act and the applicable rules and regulations thereunder, (iii) the Board, including any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance of the Offered Stock Purchase Contracts and Stock Purchase Units, the consideration to be received therefor and related matters, (iv) the terms of the Offered Stock
Purchase Contracts and Stock Purchase Units and of their issuance and sale have been duly established in conformity with the terms as established by the Board, so as not to violate any applicable law, the organizational documents of the Company or
result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (v) the
Offered Stock Purchase Contracts and Stock Purchase Units have been duly executed and delivered against receipt of the agreed-upon consideration therefore, pursuant to the relevant Stock Purchase Contract, the Offered Stock Purchase Contracts and
Stock Purchase Units will be valid, binding and enforceable obligations of the Company.
6 With respect to any Debt Securities to be
offered by the Company pursuant to the Registration Statement (the “Offered Debt Securities”), when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective
under the Act, (ii) an appropriate prospectus supplement or term sheet with respect to
the Offered Debt Securities has been prepared, delivered and filed in compliance with the Act and the
applicable rules and regulations thereunder, (iii) the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the issuance of the Offered Debt
Securities, the consideration to be received therefor and related matters, (iv) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Offered Debt
Securities has been duly authorized, executed and delivered by the Company and the other parties thereto, (v) the terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the terms as
established by the Board, so as not to violate any applicable law, the organizational documents of the Company or result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over the Company, (vi) the Offered Debt Securities and the applicable Indenture relating to the Offered Debt Securities have been duly executed and countersigned and in
the case of the Indenture, duly authenticated by the Trustee, and the Offered Debt Securities have been issued and sold as contemplated by the Registration Statement and any prospectus supplement, and (vii) the Company has received the
applicable consideration for the Offered Debt Securities as contemplated by the Registration Statement and any prospectus supplement, the Debt Securities will constitute valid and binding obligations of the Company enforceable against the Company in
accordance with their terms.
The foregoing opinions are subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law), (c) an implied
covenant of good faith and fair dealing, (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars, (e) limitations by any governmental
authority that limit, delay or prohibit the making of payments outside the United States, (f) usury laws, statutes and regulations, and (g) generally applicable laws that (i) provide for the enforcement of oral waivers or
modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has
been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves
gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable
portion is not an essential part of the agreed exchange, and (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or
providing for liquidated damages or for premiums upon acceleration. We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the
enforceability of the governing law provision contained in any Securities and their governing documents.
We express no opinion as to
whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provision contained in any Securities and their governing documents.
We hereby consent to the filing of copies of this letter as an exhibit to the Registration
Statement and to references to us in the prospectus forming a part of the Registration Statement under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act and the rules and regulations thereunder. This letter speaks as of its date, and we undertake no (and hereby disclaim any) obligation to update this letter.
|
| Very truly yours, |
|
| /s/ LOWENSTEIN SANDLER LLP |
Exhibit 5.2
March 16, 2015
Vulcan Materials Company
1200 Urban Center Drive
Birmingham, Alabama 35242
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an indeterminate principal amount
of debt securities (the “Securities”) of Vulcan Materials Company, a New Jersey corporation (the “Company”), on Form S-3 (the “Registration Statement”), we, as your special counsel, have examined such corporate records,
certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion, when: (1) the Registration Statement, as finally amended
(including all necessary post-effective amendments) has become effective under the Act, (2) an appropriate prospectus supplement or term sheet with respect to the Securities has been prepared, delivered and filed in compliance with the Act and
the applicable rules and regulations thereunder, (3) the Board of Directors of the Company, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to approve the
issuance of the Securities, the consideration to be received therefor and related matters, (4) if the Securities are to be offered pursuant to a firm commitment underwritten offering, the underwriting agreement with respect to the Securities
has been duly authorized, executed and delivered by the Company and the other parties thereto, (5) the applicable supplemental indenture has been duly authorized and validly executed and delivered by the Company and the trustee thereunder,
(6) the terms of the Securities and of their issuance and sale have been duly established in conformity with the indenture relating to the Securities so as not to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company, and (7) the Securities have been duly executed and
authenticated in accordance with the indenture and issued and sold as contemplated by the Registration Statement, then the Debt Securities will constitute valid and legally binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles, including concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law. We
express no opinion regarding the effectiveness of (1) any waiver of stay, extension or usury laws or of
unknown future rights or (2) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as contrary to federal or state securities laws.
We note that, as of the date of this opinion, a judgment for money in an action based on a Security denominated in a foreign currency or
currency unit in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a
particular Security is denominated into United States dollars will depend upon various factors, including which court renders the judgment. Under Section 27 of the New York Judiciary Law, a state court in the State of New York rendering a
judgment on a Security would be required to render such judgment in the foreign currency in which the Security is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of
the judgment.
The foregoing opinion is limited to the federal laws of the United States and the laws of the States of New York and New
Jersey, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of New Jersey law, we have relied solely upon the opinion, dated March 16, 2015, of Lowenstein Sandler LLP, we have
made no independent examination of the laws of the State of New Jersey and our opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Lowenstein Sandler LLP.
Also, we have relied as to certain factual matters on information obtained from public officials, officers of the Company and other sources
believed by us to be responsible, and we have assumed that the indenture relating to the Securities has been duly authorized, executed and delivered by the Trustee thereunder, an assumption which we have not independently verified. We hereby consent
to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Validity of Securities” in the prospectus contained therein. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the Act.
This opinion is rendered as of the date hereof,
and we undertake no obligation to advise you of any changes in applicable laws or any matters that may come to our attention after the date hereof.
|
| Very truly yours, |
|
| /s/ Womble Carlyle Sandridge & Rice, LLP |
Exhibit 12.1
Vulcan Materials Company and Subsidiary Companies
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
For the years ended December 31 |
|
| dollars in thousands |
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Fixed charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest expense before capitalization credits |
|
$ |
236,875 |
|
|
$ |
197,493 |
|
|
$ |
209,865 |
|
|
$ |
216,976 |
|
|
$ |
182,456 |
|
| Amortization of financing costs |
|
|
8,583 |
|
|
|
6,184 |
|
|
|
5,918 |
|
|
|
6,327 |
|
|
|
2,784 |
|
| One-third of rental expense |
|
|
36,103 |
|
|
|
29,959 |
|
|
|
26,186 |
|
|
|
24,992 |
|
|
|
24,134 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges |
|
$ |
281,561 |
|
|
$ |
233,636 |
|
|
$ |
241,969 |
|
|
$ |
248,295 |
|
|
$ |
209,374 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings before income taxes as adjusted |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings from continuing operations before income taxes |
|
$ |
298,838 |
|
|
$ |
(3,703 |
) |
|
$ |
(120,421 |
) |
|
$ |
(153,738 |
) |
|
$ |
(192,206 |
) |
| Minority interest in earnings (losses) of a consolidated subsidiary |
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
|
|
0 |
|
| Fixed charges |
|
|
281,561 |
|
|
|
233,636 |
|
|
|
241,969 |
|
|
|
248,295 |
|
|
|
209,374 |
|
| Capitalized interest credits |
|
|
(2,092 |
) |
|
|
(1,089 |
) |
|
|
(2,716 |
) |
|
|
(2,675 |
) |
|
|
(3,637 |
) |
| Amortization of capitalized interest |
|
|
2,742 |
|
|
|
3,408 |
|
|
|
3,453 |
|
|
|
3,412 |
|
|
|
3,422 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings before income taxes, as adjusted |
|
$ |
581,049 |
|
|
$ |
232,252 |
|
|
$ |
122,285 |
|
|
$ |
95,294 |
|
|
$ |
16,953 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratio of earnings to fixed charges |
|
|
2.1 |
|
|
|
1.0 |
|
|
|
0.5 |
|
|
|
0.4 |
|
|
|
0.1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 26, 2015, relating to the
consolidated financial statements of Vulcan Materials Company and its subsidiary companies (the “Company”) and the effectiveness of the Company’s internal control over financial reporting appearing in the Annual Report on Form 10-K of
the Company for the year ended December 31, 2014, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche
Birmingham, Alabama
March 16, 2015
Exhibit 24.1
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Elaine L. Chao |
| Elaine L. Chao |
1
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ O. B. Grayson Hall, Jr. |
| O.B. Grayson Hall, Jr. |
2
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Cynthia L. Hostetler |
| Cynthia L. Hostetler |
3
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Donald M. James |
| Donald M. James |
4
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Douglas J. McGregor |
| Douglas J. McGregor |
5
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ James T. Prokopanko |
| James T. Prokopanko |
6
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Donald B. Rice |
| Donald B. Rice |
7
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Lee J. Styslinger, III |
| Lee J. Styslinger, III |
8
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Vincent J. Trosino |
| Vincent J. Trosino |
9
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Kathleen Wilson-Thompson |
| Kathleen Wilson-Thompson |
10
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ Thomas A. Fanning |
| Thomas A. Fanning |
11
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey corporation, hereby nominates, constitutes and appoints Michael R. Mills,
Amy M. Tucker and Jerry F. Perkins, Jr. and each of them, the true and lawful attorneys of the undersigned to sign the name of the undersigned as director to this registration statement on Form S-3 and to any and all amendments to said registration
statement, including post-effective amendments thereto, said registration statement and amendments to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in accordance with the provisions of
Section 6 thereof and Regulation C, Regulation S-K and the General Rules and regulations thereunder, with full power in said attorneys of substitution and revocation, all as fully as the undersigned could do if personally present, hereby
ratifying all that said attorneys or their substitutes may lawfully do by virtue hereof.
IN WITNESS WHEREOF, the undersigned
director of Vulcan Materials Company has executed this Power of Attorney this 16th day of March, 2015.
|
| /s/ J. Thomas Hill |
| J. Thomas Hill |
12
Exhibit 25.1
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
|
|
|
| Alabama |
|
63-0371319 |
| (Jurisdiction of incorporation of
organization if not a U.S. national bank) |
|
(I.R.S. Employer
Identification No.) |
Regions Bank
Corporate Trust Department
1900 Fifth Avenue North, 25th Floor
Birmingham, Alabama 35203
(Address of principal executive offices)
Patti Maner
Regions Bank, Corporate Trust Services
1900 Fifth Avenue North, 25th Floor
Birmingham, Alabama 35203
(205) 264-5933
(Name,
address and telephone number of agent for service)
VULCAN
MATERIALS COMPANY
(Exact name of obligor as specified in its charter)
|
|
|
| New Jersey |
|
20-8579133 |
| (State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
|
|
| 1200 Urban Center Drive Birmingham, Alabama |
|
35242 |
| (Address of principal executive offices) |
|
(Zip code) |
Debt Securities
(Title
of the indenture securities)
| Item 1. |
General information. |
Furnish the following information
as to the trustee —
| |
(a) |
Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309
Alabama State Banking Department, 401 Adams Ave., Montgomery, Alabama 36104
| |
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
| Item 2. |
Affiliations with the obligor. |
If the obligor is an
affiliate of the trustee, describe each such affiliation.
None.
| Item 16. |
List of Exhibits. |
| |
1. |
Articles of Amendment to Articles of Incorporation, including Restated Articles of Incorporation of the Trustee. |
| |
3. |
Authorization of the Trustee to exercise corporate trust powers. |
| |
4. |
Bylaws of the Trustee. |
| |
6. |
Consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, as amended. |
| |
7. |
Latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Regions Bank, an Alabama banking corporation, has duly caused
this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Birmingham, State of Alabama on the 16th day of March,
2015.
|
|
|
|
|
|
|
REGIONS BANK |
|
|
| By |
|
/s/ Patti Maner |
|
|
Name: |
|
Patti Maner |
|
|
Title: |
|
Vice President |
EXHIBIT 1
This instrument prepared by:
Charles C. Pinckney
Adams and Reese LLP
1901 6th Avenue North, Suite 3000
Birmingham, Alabama 35203
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
REGIONS BANK
REGIONS BANK, a corporation organized and existing under the laws of the State of Alabama, hereby certifies as follows:
1) The name of the corporation is Regions Bank.
2) This restatement of the Articles of Incorporation restates and integrates the amendments to the Articles of Incorporation as previously
filed and further amends the Articles of Incorporation by amending Article 6 of the Articles of Incorporation as previously filed.
3) The
text of the Restated Articles of Incorporation reads as herein set forth in full:
Page 1 of 6
RESTATED ARTICLES OF INCORPORATION
OF
REGIONS BANK
1. The name of this corporation shall be Regions Bank.
2. The principal place of business shall be 1900 Fifth Avenue North, Birmingham, Alabama. The general business of Regions Bank (the
“Bank”) shall be conducted at its main office and its branches and other facilities.
3. The Bank shall have the following
objects, purposes and powers:
a. To sue and be sued, complain and defend, in its corporate name.
b. To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be
impressed or affixed or in any other manner reproduced.
c. To purchase, take, receive, lease, or otherwise acquire, own,
hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
d. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and
assets, subject to the limitations hereinafter prescribed.
e. To lend money and use its credit to assist its employees.
f. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend,
pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the
United States or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations.
g. To make contracts, guarantees, and indemnity agreements and incur liabilities, borrow money at such rates of interest as the
corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage, pledge of, or creation of security interests in, all or any of its property, franchises, or income, or any interest therein, not
inconsistent with the provisions of the Constitution of Alabama as the same may be amended from time to time.
h. To lend
money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Page 2 of 6
i. To conduct its business, carry on its operations and have offices and exercise
the powers granted by this Article, within or without the State of Alabama.
j. To elect or appoint and remove officers and
agents of the Bank, and define their duties and fix their compensation.
k. To make and alter by its board of directors
bylaws not inconsistent with its articles of incorporation or with the laws of this state for the administration and regulation of the affairs of the Bank.
l. To make donations for the public welfare or for charitable, scientific, or educational purposes.
m. To transact any lawful business which the board of directors shall find will be in aid of governmental policy.
n. To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and
other incentive plans for any or all of its directors, officers and employees.
o. To be a promoter, incorporator, partner,
member, trustee, associate, or manager of any domestic or foreign corporation, partnership, joint venture, trust, or other enterprise.
p. To consolidate or merge, before or after the completion of its works or plants, in the manner herein provided, with any
other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business subject to the limitations hereinafter prescribed.
q. To have and exercise all powers permitted by the laws of Alabama necessary or convenient to effect its purposes.
r. To discount bills, notes or other evidences of debt.
s. To receive and pay out deposits, with or without interest, pay checks, and impose charges for any services.
t. To receive on special deposit money, bullion or foreign coins or bonds or other securities.
u. To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes
and other negotiable paper.
v. To lend money on personal security or upon pledges of bonds, stocks or other negotiable
securities.
w. To take and receive security by mortgage, security or otherwise on property, real and personal.
Page 3 of 6
x. To become trustee for any purpose and be appointed and act as executor,
administrator, guardian, receiver, or fiduciary.
y. To lease real and personal property upon specific request of a
customer, provided it complies with any applicable Alabama laws regulating leasing real property or improvements thereon to others.
z. To perform computer, management and travel agency services for others.
aa. To subscribe to the capital stock and become a member of the federal reserve system and comply with rules and regulations
thereof.
bb. To do any business and exercise directly or through operating subsidiaries any powers incident to the
business of banks.
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board,
subject to the following:
a. The number of Directors constituting the entire Board shall be fixed from time to time by
vote of a majority of the entire Board, provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office, and provided further, shall not be less than three nor more than
twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding any other provisions of the Articles of Incorporation or the bylaws of the Bank (and notwithstanding the
fact that some lesser percentage may be specified by law, these Restated Articles of Incorporation or the bylaws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause by the
affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the
stockholders called for that purpose.
6. The aggregate number of shares of capital stock which the Bank shall have authority to issue is
thirty thousand five hundred forty six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair
value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined.
a.
Shareholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of
the shareholders.
Page 4 of 6
b. Authority is hereby expressly granted to the Board of Directors from time to
time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of the shareholders and may be voted by the
shareholders of record either in person or by proxy.
c. In the event of any liquidation, dissolution, or winding up of the
Bank or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed among the holders of the Common Stock ratably. Neither the merger or
consolidation of the Bank with another corporation nor the sale or lease of all or substantially all of the assets of the Bank shall be deemed to be a liquidation, dissolution, or winding up of the Bank or a distribution of its assets.
d. The holders of Common Stock shall have the exclusive power to vote and shall have one vote in respect of each share of such
stock held by them.
7. The Chief Executive Officer, Secretary, Board of Directors, or holder(s) of at least 90% of the issued and
outstanding voting stock of the Bank may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of Alabama, notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be
given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the stock transfer book of this Bank.
8. The Bank reserves the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, in the
manner now or hereafter provided by law, at any regular or special meeting of the shareholders, and all rights conferred upon officers, directors and shareholders of the Bank hereby are granted subject to this reservation.
9. The Bank shall indemnify its officers, directors, employees, and agents to the fullest extent permitted by the Constitution and laws of the
State of Alabama.
Page 5 of 6
4) This amendment to and restatement of the Articles of Incorporation was duly adopted by vote of
the directors of the Bank pursuant to Section 10A-2-10.03 of the Alabama Business Corporation Law and was approved by the sole shareholder in accordance with Section 10A-2-10.03, by unanimous consent of the holder of 21,546 shares of
common stock, constituting all of the shares of capital stock of the Bank outstanding, indisputably represented, and entitled to vote on the amendment. The date of adoption of the Restated Articles of Incorporation was July 17, 2014.
IN WITNESS WHEREOF, said Regions Bank has caused this certificate to be signed by Fournier J. Gale, III, its Senior Executive Vice President,
General Counsel and Corporate Secretary, this 17th day of July, 2014.
|
|
|
| REGIONS BANK |
|
|
| By: |
|
/s/ Fournier Gale |
|
|
Fournier J. Gale, III |
|
|
Senior Executive Vice President, General |
|
|
Counsel and Corporate Secretary |
Page 6 of 6
Jefferson County
I, the Undersigned, as Judge of Probate in and for said County, in said State, hereby certify that the foregoing is a full, true and correct
copy of the instrument with the filing of same as appears of record in this office in vol. 201415 page 9638.
Given under my hand and official seal, this
the 31st day of July, 2014.
|
| /s/ Alan L. King |
| Judge of Probate |
STATE OF ALABAMA
MONTGOMERY COUNTY
I, John D. Harrison, as
Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Articles of Amendment whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to
Restate the Articles of Incorporation.
See attached Articles of Amendment which Restate the Articles of Incorporation of Regions Bank.
I do hereby certify that said Amendment of the Articles of Incorporation appear to be in substantial conformity with the requirements of
law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Restated Articles of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 30th day of July, 2014.
|
| /s/ John D. Harrison |
| John D. Harrison |
| Superintendent of Banks |
EXHIBIT 3
|
|
|
|
|
|
|
STATE OF ALABAMA
STATE BANKING DEPARTMENT |
|
|
| Bob Riley
Governor |
|
|
|
John D. Harrison
Superintendent of Banks |
TO WHOM IT MAY CONCERN:
I hereby certify, as Superintendent of Banks of the State of Alabama, that Regions Bank, Birmingham, Alabama is a bank chartered by the State
of Alabama and is duly authorized to, exercise full trust powers. Regions Bank was authorized to exercise full service trust powers by the Alabama State Banking Department on September 1, 1958. At the time, Regions Bank was named
Exchange-Security Bank. They have held full service trust powers ever since.
Witness my hand this the 25th day of March, 2008.
|
| /s/ John D. Harrison |
| John D. Harrison |
| Superintendent of Banks |
CENTER FOR COMMERCE — 401 ADAMS AVENUE — P.O. BOX 4600 — MONTGOMERY, AL 36103-4600
TELEPHONE (334) 242-03452 — FAX (334) 242-3500 OR BUREAU OF LOANS
(334) 353-5961
EXHIBIT 4
BY-LAWS OF
REGIONS BANK
(As amended
July 18, 2013)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office shall be established and maintained at the office of the CSC Lawyers Incorporating Service, Inc., in the City of
Montgomery, in the County of Montgomery, in the State of Alabama, and said corporation shall be the registered agent of this Bank in charge thereof.
Section 2. Other Offices.
The Bank may have other offices, either within or without the State of Alabama, at such place or places as the Board of Directors may from
time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of Directors and for such other business as may be stated in the notice of the meeting, shall
be held at such place, either within or without the State of Alabama, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.
At each annual meeting, the stockholders entitled to vote shall elect Directors, and they may transact such other corporate business as may
properly come before the meeting.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, other than the election of Directors, may be called at any time by the
Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or by resolution of the Directors. Special meetings of stockholders may be held at such time and place, within or without the State of Alabama, as shall be stated in
the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is
present shall be the act of the stockholders on that matter, except as otherwise required by law or by the articles of incorporation of the Bank.
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Section 4. Quorum.
A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of
stockholders. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be
transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors which shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the
Board of Directors, but shall not be less than three persons. The number of Directors shall not be reduced so as to shorten the term of any Director at the time in office.
At each annual meeting of stockholders, all Directors shall be elected for terms of one year, and except as hereinafter provided, each
Director shall hold office until the next annual meeting or until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors shall by majority vote designate from time to time from among its members a Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank. He or she shall have and perform such duties as prescribed by the By-Laws and by the Board of Directors. The position of Chairman of the Board is a
Board position, provided however, the position of Chairman of the Board may be held by a person who is also an officer of the Bank.
The
Board of Directors may by majority vote designate from time to time from among its members one or more Vice Chairmen of the Board. A Vice Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the
Bank which the Chairman of the Board shall be unable to attend. He or she shall assist the Chairman of the Board in the exercise of his or her duties and shall have and perform such duties as are prescribed from time to time by the Board of
Directors. In the event of the death or incapacity of the Chairman of the Board, he or she shall perform all the duties of the Chairman of the Board until the next annual meeting of the stockholders or until the Board shall have sooner elected a
successor Chairman of the Board. The position of Vice Chairman of the Board is a Board position, provided however, that the position of Vice Chairman of the Board may be held by a person who is also an officer of the Bank.
In the absence of the Chairman of the Board and Vice Chairman of the Board or in case of their inability to act, the Independent Lead
Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all the powers and duties of such office and shall preside at all meetings of the Board of Directors. If at any Board of
Directors meeting none of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or portion thereof.
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Section 3. Resignations.
Any Director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time of its receipt by the
Chairman of the Board, Chief Executive Officer, the President, or the Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, the remaining Directors in office, though less than a quorum, by a majority vote, may appoint
any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares
of capital stock of the Bank entitled to vote generally in the election of Directors considered for this purpose as one class cast at a meeting of the stockholders called for that purpose.
Section 6. Powers.
The Board of Directors shall exercise all the powers of the Bank except such as are by law, by the Articles of Incorporation of the Bank or
pursuant to the Bank’s bylaws conferred upon or reserved to the stockholders.
Section 7. Meetings.
A regular meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders. Additional regular
meetings of the Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the
Secretary on the written request of a majority of the Board of Directors on at least two days’ notice to each Director and shall be held at such place or places as may be determined by the Directors, or as shall be stated in the call of the
meeting.
Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting
can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 8.
Quorum.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board
of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which
shall be so adjourned. Notwithstanding the withdrawal of enough Directors to leave less than a quorum, the Directors present at a duly organized meeting may continue to transact business until adjournment.
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Section 9. Compensation.
Directors shall not receive any stated salary for their services as Directors or as members of committees, except that by resolution of the
Board of Directors, retainer fees, meeting fees, and expenses of attendance at meetings may be authorized. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or
otherwise, and receiving compensation therefore.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a
meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or
committee.
Section 11. Committees.
A majority of the whole Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or
more of the Directors of the Bank. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in
the resolution of the Board or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank, and may authorize the seal of the Bank to be affixed to all papers which may
require it; provided, however, that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding
company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by
the officers of the Bank or by state or federal bank examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books
of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more Regional or Local Presidents if the Board so determines;
one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial
Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed
and qualified or until such officer’s earlier death, resignation, retirement, or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in
accordance with procedures established or modified by the Board from time to time. Those Officers who serve in the Trust Department shall be so designated by the word “Trust” in their title. None of the officers of the Bank need be
Directors. More than one office may be held by the same person.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer
of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with
full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank
all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises,
have, and may exercise the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors, or the Chief Executive Officer. Among the officers of the Bank, the President is
subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority
during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments,
agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law.
Section 4.
Vice Presidents.
The Vice Presidents shall, subject to the control of the Board of Directors, the Chief Executive Officer or
the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer or his designee shall have custody of all funds of the Bank. He or his designee shall have and perform such duties
as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the President.
Section 6. Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by those bodies. The
Secretary, or in his absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. He shall perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors, and
shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer, or a more senior
officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have
general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements
showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer, or other more
senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the
parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and
the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor whether an employee of the Bank or of its parent shall be directly accountable to and under the jurisdiction of the Board of Directors and,
if applicable, its designated committee, acting independently of all officers, agents and employees of the bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its
designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
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Section 10. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and
management over the affairs of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support, which groups are responsible for exercise of the Bank’s trust powers. That officer is hereby empowered to appoint
all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution,
proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled by the Bank in any
fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 11. Other Officers in Private Wealth Management, Institutional Services, and Wealth Management Operations and Support.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management,
Institutional Services, and Wealth Management Operations and Support. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and
Support are empowered and authorized to make, execute, and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution,
proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any
fiduciary capacity.
Section 12. Removal and Retirement of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board, provided however that
the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any
reason of the individual’s employment by the Bank.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a
facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive
Officer, the President, any Vice President, or the Secretary
Page 7 of 11
of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make affidavit of such loss or destruction and
deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented
to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors or by the Chief
Executive Officer or by the President or an Executive or Senior Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank
or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of
attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to
a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall ever be issued by this Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6.
Dividends.
Subject to the provisions of the Articles of Incorporation, the Board of Directors may, out of funds legally
available therefore at any regular or special meeting, declare dividends upon the capital stock of the Bank as and when they deem expedient. Before declaring any dividend there may be set apart out of any fund of the Bank available for dividends,
such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the
interests of the Bank. No dividends shall be declared which exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
Section 7. Seal.
The corporate seal of the Bank shall be circular in shape and shall include the words “Regions Bank” around the outer edge of the
circle and the word “Seal” in the center of the circle.
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The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation”. The Secretary of the Bank shall have custody of the seal and is authorized to
affix the same to instruments, documents, and papers as required by law or as customary or appropriate in the Secretary’s judgment and discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint,
remove, and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seal to be made, distributed to, and used by officers and employees of the Bank whose duties and responsibilities involve the
execution and delivery of instruments, documents, and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret, and enforce policies and procedures governing the use of the seal and
the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of
the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as
delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, etc.
The Chief Executive Officer, the President, any Regional or Local President, any Vice President or Assistant Vice President, any Branch
Manager or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier’s checks, to guarantee
signatures, to give receipts for money due and payable to the Bank, to sell, assign and transfer shares of capital stock, bonds, or other personal property or securities standing in the name of or held by the Bank, whether in its own right or in any
fiduciary capacity, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the
performance of his or her duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 10. Notice and Waiver of Notice.
Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by depositing the same in the United States, mail, postage, prepaid, or by telegram, teletype, facsimile transmission or other form of wire, wireless, or other electronic communication or by private
carrier addressed to the person entitled thereto at his address as it appears on the records of the Bank, and such notice shall be deemed to have been given on the date of such mailing. Stockholders not entitled to vote shall not be entitled to
receive notice of meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Articles of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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Section 11. Right of Indemnity.
To the full extent allowed by Section 10-2B-8.5 et seq. of the Code of Alabama (1975), or any statute amendatory or supplemental thereof;
the Bank shall indemnify and hold harmless each director or officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any claim, or any
action, suit or proceeding against him or her or in which he or she is made a party, by reason of his or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving as at the
Bank’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Such right of indemnity shall not be deemed
exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained
restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein. The Bank may purchase and maintain insurance in such amounts as the Board of Directors deems
appropriate on behalf of said Directors or officers so as to offset any potential liability asserted against said Directors or officers acting in such capacity as described in these By-Laws.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer, or the President, or any Regional or Local President or any Vice President is authorized, in his or her
discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases,
bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, proxies to vote stock or any other instrument in writing that may be necessary in
the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary
capacity and including the authority from time to time to open bank accounts with the Bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said
officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or
affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank
and as binding obligations of Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments,
acknowledgments, and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and
sub-servicing agreements, vendor agreements, securitizations, and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments, and agreements may be limited by resolution of the Board of Directors, by a
committee of the Board of Directors, by the Chief
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Executive Officer, or by the President, by reference to subject matter, category, amount, geographical location, or any other criteria, and may be made subject to such policies, procedures, and
levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the
Controller, the Bank’s General Counsel, and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank to attend, and to act and to vote, and to execute a proxy or proxies
empowering others to attend, and to act and to vote, at any meetings of security holders of any of the corporations in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and
powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall from time to time designate the officers and employees who shall be required to give bond and fix the amounts
thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by
the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to enter the fact of payment or satisfaction on the margin of the
record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer or the President or any Regional or Local President or any Vice President of the Bank shall have power
and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion
appoint.
Section 16. Emergencies.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and
employees of this Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance
with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
ARTICLE VI.
AMENDMENTS
Except as otherwise provided herein or in the articles of incorporation of the Bank, these By-Laws may be amended or
repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the Stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
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EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of 1939, in connection with the proposed issue of Debt
Securities by Vulcan Materials Company, we hereby consent that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon request therefor.
Dated March 16, 2015
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| REGIONS BANK |
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| By |
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/s/ Patti Maner |
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| Name: |
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Patti Maner |
| Title: |
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Vice President |
EXHIBIT 7
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| Regions Bank |
| Legal Title of Bank |
| Birmingham |
| City |
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| AL |
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35203 |
| State |
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Zip Code |
FDIC Certificate Number: 12368
Printed on 1/30/2015 at 4:23 PM — Submitted to CDR on 1/30/2015 at 4:09 PM
Consolidated Report of Condition for Insured Banks and Savings Associations for December 31, 2014
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC — Balance Sheet
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| Dollar Amounts in Thousands |
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RCFD |
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Tril |
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Bil |
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Mil |
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Thou |
|
|
| Assets |
|
|
|
|
|
|
|
|
|
|
| 1. Cash and balances due from
depository institutions (from
Schedule RC-A): |
|
|
|
|
|
|
|
|
|
|
| a. Noninterest-bearing balances and currency
and coin (1) |
|
|
|
|
|
0081 |
|
1,742,340 |
|
1.a |
| b. Interest-bearing balances (2) |
|
|
|
|
|
0071 |
|
2,300,112 |
|
1.b |
| 2. Securities: |
|
|
|
|
|
|
|
|
|
|
| a. Held-to-maturity securities (from Schedule
RC-B, column A) |
|
|
|
|
|
1754 |
|
2,172,500 |
|
2.a |
| b. Available-for-sale securities (from
Schedule RC-B, column D) |
|
|
|
|
|
1773 |
|
21,992,284 |
|
2.b |
| 3. Federal funds sold and
securities purchased under agreements to
resell: |
|
|
|
|
|
RCON |
|
|
|
|
| a. Federal funds sold in domestic
offices |
|
|
|
|
|
B987 |
|
0 |
|
3.a |
| |
|
|
|
|
|
RCFD |
|
|
|
|
| b. Securities purchased under agreements to
resell (3) |
|
|
|
|
|
B989 |
|
100,000 |
|
3.b |
| 4. Loans and lease financing
receivables (from Schedule RC-C): |
|
|
|
|
|
|
|
|
|
|
| a. Loans and leases held for sale |
|
|
|
|
|
5369 |
|
540,910 |
|
4.a |
| b. Loans and leases, net of unearned
income |
|
B528 |
|
77,307,059 |
|
|
|
|
|
4.b |
| c. LESS: Allowance for loan and lease
losses |
|
3123 |
|
1,103,261 |
|
|
|
|
|
4.c |
| d. Loans and leases, net of unearned income
and allowance (item 4.b minus 4.c) |
|
|
|
|
|
B529 |
|
76,203,798 |
|
4.d |
| 5. Trading assets (from
Schedule RC-D) |
|
|
|
|
|
3545 |
|
395,299 |
|
5 |
| 6. Premises and fixed assets
(including capitalized leases) |
|
|
|
|
|
2145 |
|
2,060,625 |
|
6 |
| 7. Other real estate owned
(from Schedule RC-M) |
|
|
|
|
|
2150 |
|
124,272 |
|
7 |
| 8. Investments in
unconsolidated subsidiaries and associated
companies |
|
|
|
|
|
2130 |
|
0 |
|
8 |
| 9. Direct and indirect
investments in real estate ventures |
|
|
|
|
|
3656 |
|
0 |
|
9 |
| 10. Intangible assets: |
|
|
|
|
|
|
|
|
|
|
| a. Goodwill |
|
|
|
|
|
3163 |
|
4,242,336 |
|
10.a |
| b. Other intangible assets (from Schedule
RC-M) |
|
|
|
|
|
0426 |
|
515,440 |
|
10.b |
| 11. Other assets (from Schedule RC-F) |
|
|
|
|
|
2160 |
|
6,411,496 |
|
11 |
| 12. Total assets (sum of items 1 through
11) |
|
|
|
|
|
2170 |
|
118,801,412 |
|
12 |
| (1) |
Includes cash items in process of collection and unposted debits. |
| (2) |
Includes time certificates of deposit not held for trading. |
| (3) |
Includes all securities resale agreements in domestic and foreign offices, regardless of maturity. |
|
| Regions Bank |
| Legal Title of Bank |
FDIC Certificate Number: 12368
Printed on 1/30/2015 at 4:23 PM — Submitted to CDR on 1/30/2015 at 4:09 PM
Schedule RC — Continued
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Dollar Amounts in Thousands |
|
|
RCON |
|
Tril |
|
Bil |
|
Mil |
|
Thou |
|
|
| Liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
| 13. Deposits: |
|
|
|
|
|
|
|
|
|
|
|
|
| a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E, part I) |
|
|
|
|
|
|
|
2200 |
|
96,176,217 |
|
13.a |
| (1) Noninterest-bearing (4) |
|
6631 |
|
|
32,081,967 |
|
|
|
|
|
|
13.a.1 |
| (2) Interest-bearing |
|
6636 |
|
|
64,096,250 |
|
|
|
|
|
|
13.a.2 |
| b. In foreign offices, Edge and
Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) |
|
|
|
|
|
|
|
RCFN |
|
264,925 |
|
13.b |
| |
|
|
2200 |
|
|
| (1) Noninterest-bearing |
|
6631 |
|
|
0 |
|
|
|
|
|
|
13.b.1 |
| (2) Interest-bearing |
|
6636 |
|
|
264,925 |
|
|
|
|
|
|
13.b.2 |
| 14. Federal funds purchased and
securities sold under
agreements to repurchase: |
|
|
|
|
|
|
|
RCON |
|
|
|
|
| a. Federal funds purchased in domestic offices
(5) |
|
|
|
|
|
|
|
B993 |
|
0 |
|
14.a |
| |
|
|
|
|
|
|
|
RCFD |
|
|
|
|
| b. Securities sold under agreements to
repurchase (6) |
|
|
|
|
|
|
|
B995 |
|
1,753,068 |
|
14.b |
| 15. Trading liabilities (from Schedule
RC-D) |
|
|
|
|
|
|
|
3548 |
|
99,792 |
|
15 |
| 16. Other borrowed money (includes
mortgage Indebtedness and
obligations under capitalized leases) (from Schedule RC-M) |
|
|
|
|
|
|
|
3190 |
|
663,334 |
|
16 |
| 17. and 18. Not applicable |
|
|
|
|
|
|
|
|
|
|
|
|
| (4) |
Includes noninterest-bearing demand, time, and savings deposits. |
| (5) |
Report overnight Federal Home Loan Bank advances in Schedule RC, Item 16, “Other borrowed money.” |
| (6) |
Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. |
|
| Regions Bank |
| Legal Title of Bank |
FDIC Certificate Number: 12368
Printed on 1/30/2015 at 4:23 PM — Submitted to CDR on 1/30/2015 at 4:09 PM
Schedule RC — Continued
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Dollar Amounts in Thousands |
|
RCFD |
|
|
Tril |
|
Bil |
|
Mil |
|
Thou |
|
|
| Liabilities — Continued |
|
|
|
|
|
|
|
|
| 19. Subordinated notes and debentures
(1) |
|
|
3200 |
|
|
1,598,456 |
|
19 |
| 20. Other liabilities (from Schedule
RC-G) |
|
|
2930 |
|
|
2,125,974 |
|
20 |
| 21. Total liabilities (sum of Items 13
through 20) |
|
|
2948 |
|
|
102,683,766 |
|
21 |
| 22. Not applicable |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
| Equity
Capital Bank Equity Capital |
|
|
|
|
|
|
|
|
| 23. Perpetual preferred stock and related
surplus |
|
|
3838 |
|
|
0 |
|
23 |
| 24. Common stock |
|
|
3230 |
|
|
103 |
|
24 |
| 25. Surplus (excludes all surplus related
to preferred stock) |
|
|
3839 |
|
|
16,845,903 |
|
25 |
| 26. a. Retained earnings |
|
|
3632 |
|
|
-489,833 |
|
26.a |
| b. Accumulated other comprehensive income
(2) |
|
|
B530 |
|
|
-238,527 |
|
26.b |
| c. Other equity capital components
(3) |
|
|
A130 |
|
|
0 |
|
26.c |
| 27. a. Total bank equity capital (sum of
items 23 through 26.c) |
|
|
3210 |
|
|
16,117,848 |
|
27.a |
| b. Noncontrolling (minority) interests in
consolidated subsidiaries |
|
|
3000 |
|
|
0 |
|
27.b |
| 28. Total equity capital (sum of items
27.a and 27.b) |
|
|
G105 |
|
|
16,117,646 |
|
28 |
| 29. Total liabilities and equity capital
(sum of Items 21 and 28) |
|
|
3300 |
|
|
118,801,412 |
|
29 |
Memoranda
To be reported with the March Report of Condition.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of
auditing work performed for the bank by independent external auditors
as of any date during 2013
|
|
|
RCFD |
|
|
|
Number |
|
|
|
|
|
|
|
|
|
|
|
| |
|
6724
|
|
|
|
N/A
|
|
|
|
|
|
|
|
|
|
M.1 |
|
|
|
|
| 1 = |
|
Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank |
| 2 = |
|
Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but
not on the bank separately) |
| 3 = |
|
Attestation on bank management’s assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. |
|
|
|
| 4 = |
|
Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) |
| 5 = |
|
Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority) |
| 6 = |
|
Review of the bank’s financial statements by external auditors |
| 7 = |
|
Compilation of the bank’s financial statements by external auditors |
| 8 = |
|
Other audit procedures (excluding tax preparation work) |
| 9 = |
|
No external audit work |
To be reported with the March Report of
Condition.
|
|
|
|
|
|
|
| 2. Bank’s fiscal year-end date |
|
RCON |
|
MM / DD |
|
|
| |
8678 |
|
N/A |
|
M.2 |
| (1) |
Includes limited-life preferred stock and related surplus. |
| (2) |
Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and
accumulated defined benefit pension and other post retirement plan adjustments. |
| (3) |
Includes treasury stock and unearned Employee Stock Ownership Plan shares. |
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