<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 20, 1998
Registration No. 333-______
________________________________________________________________________________
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)
NEW JERSEY 63-0366371
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
ONE METROPLEX DRIVE
BIRMINGHAM, ALABAMA 35209
(205) 877-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
MICHAEL R. MILLS, ESQ.
VULCAN MATERIALS COMPANY
ONE METROPLEX DRIVE
BIRMINGHAM, ALABAMA 35209
(205) 877-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
THE COMMISSION IS REQUESTED TO SEND COPIES OF ALL COMMUNICATIONS TO:
ALEXANDER W. PATTERSON, ESQ.
ALSTON & BIRD LLP
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
(404) 881-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: [_] ___________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering: [_] ___________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [_] ___________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Shares to be Amount Proposed Maximum Proposed Maximum Amount of
Registered to be Registered Offering Price Per Aggregate Offering Registration
Share(1) Price(1) Fee(1)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00
par value per share 375,000 SHARES $ 113.16 $ 42,435,000 $ 12,519
=========================================================================================================================
</TABLE>
(1) PURSUANT TO RULE 457(c), THE PROPOSED MAXIMUM OFFERING PRICE PER SHARE AND
REGISTRATION FEE ARE BASED UPON THE AVERAGE OF THE HIGH AND LOW PRICES OF
THE REGISTRANT'S COMMON STOCK ON APRIL 16, 1998 AS REPORTED ON THE NEW
YORK STOCK EXCHANGE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
______________________________________________________________________________
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION - DATED APRIL 20, 1998
375,000 SHARES
Vulcan Materials Company
Common Stock
_______________________
This Prospectus relates to 375,000 shares (the "Shares") of Common Stock,
$1.00 par value per share (the "Common Stock"), of Vulcan Materials Company, a
New Jersey corporation (the "Company"). All of the Shares were acquired by
certain shareholders (the "Selling Shareholders") from the Company in connection
with the Company's acquisition of C.W. Matthews Quarries, Inc., a Georgia
corporation ("C.W. Matthews"). See "Selling Shareholders" below.
All or a portion of the Shares may be offered by the Selling Shareholders
from time to time (i) in transactions (which may include block transactions) on
the New York Stock Exchange or such other national securities exchange or
automated interdealer quotation system on which shares of the Company's Common
Stock are then traded, (ii) in negotiated transactions, or (iii) by a
combination of such methods of sale, at fixed prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. The Selling Shareholders may
effect such transactions by selling the Shares directly to purchasers or through
underwriters, agents or broker-dealers, and any such underwriters, agents or
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Shareholders and/or the purchasers of the Shares
for whom such underwriters, agents or broker-dealers may act as agents or to
whom they may sell as principals, or both (which compensation as to a particular
underwriter, agent or broker-dealer might be in excess of customary
compensation). See "Selling Shareholders" and "Sale of Shares." The Company will
bear all expenses in connection with the registration and sale of the Shares
being offered by the Selling Shareholders, except the expenses related to
special audits incident to or required by this registration, discounts,
concessions or commissions to underwriters, agents or broker-dealers and fees
and expenses of counsel beyond one counsel for all Selling Shareholders not to
exceed five thousand dollars and other advisors to the Selling Shareholders.
The Common Stock is traded on the New York Stock Exchange under the symbol
"VMC." On April 16, 1998, the last sales price for the Common Stock as reported
on the New York Stock Exchange composite tape was $114.375 per share.
_______________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________________
The date of this Prospectus is April __, 1998.
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents have been filed by the Company with the Securities
and Exchange Commission ("Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement filed pursuant to Section 12(b) of the Exchange
Act.
In addition, all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for all purposes to the
extent that a statement contained herein or in any other subsequently filed
document which is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any and all of the documents incorporated by reference (not including
the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents). Requests for such copies should be
directed to Mr. William F. Denson, Vulcan Materials Company, One Metroplex Drive
Creek, Birmingham, Alabama 35209, or by telephone at (205) 877-3000.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy and information statements
and other information with the Commission. Such reports, proxy and information
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549; and at
the Commission's Northeast Regional Office, 7 World Trade Center, Suite 1300,
New York, New York 10048, and Midwest Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material can also be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington D.C. 20549. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants such as the Company that
file electronically with the Commission. Such reports, proxy and information
statements and other information may be found on the Commission's site address,
http://www.sec.gov. In addition, such reports, proxy and information statements
and other information concerning the Company may be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed a Registration Statement on Form S-3 (together with
all amendments and exhibits filed or to be filed in connection therewith, the
"Registration Statement") with the Commission pursuant to the Securities Act of
1933, as amended (the "Securities Act"), of which this Prospectus forms a part.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Such additional information may be
obtained from the Commission's principal office in Washington, D.C. Statements
contained or incorporated by reference herein concerning the provisions of
documents are necessarily summaries of such documents, and each statement is
qualified in its entirety by reference to the copy of the applicable document
filed with the Commission.
-2-
<PAGE>
THE COMPANY
Vulcan Materials Company, a New Jersey corporation incorporated in 1956,
and its subsidiaries (together called the "Company") are principally engaged in
the production, distribution and sale of construction materials and industrial
and specialty chemicals.
The Company's principal executive offices are located at One Metroplex
Drive, Birmingham, Alabama 35209, and its telephone number is (205) 877-3000.
-3-
<PAGE>
SELLING SHAREHOLDERS
The Company issued approximately _______ shares of Common Stock to the
Selling Shareholders on April __, 1998 (the "Shares"), pursuant to the terms of
the Asset Purchase Agreement and Plan of Reorganization (the "Asset Purchase
Agreement") dated September 29, 1997, by and among C.W. Matthews, the
shareholders of C.W. Matthews and the Company, as amended by the First Amendment
to the Asset Purchase Agreement dated December 19, 1997, and the Second
Amendment to the Asset Purchase Agreement dated January 15, 1998 (collectively,
the "C.W. Matthews Acquisition"), under which the Company acquired certain
assets of C.W. Matthews, including the rights to the Bellwood and Rockmart
Quarries (as therein defined) in consideration for Common Stock of the Company.
In connection with the C.W. Matthews Acquisition, the Company entered into a
Registration Rights Agreement (the "Registration Rights Agreement") dated April
__, 1998, with the Selling Shareholders pursuant to which the Company agreed to
file a registration statement with the Commission to register the Shares held by
the Selling Shareholders for resale by the Selling Shareholders. The
Registration Statement of which this Prospectus is a part was filed with the
Commission pursuant to the Registration Rights Agreement.
The following table sets forth (i) the name of each of the Selling
Shareholders, and (ii) the number of shares of Common Stock beneficially owned
by each Selling Shareholder prior to the offering.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED
Prior to Offering(1)
--------------------
SELLING SHAREHOLDER NUMBER (1) PERCENT
- ---------------------------------------------------------------- --------------- -------------------
<S> <C> <C>
Robert E. Matthews..............................................
James C. Scott, Jr..............................................
Q. William Hammack, Jr..........................................
Charles Matthews Subchapter S Trust
U/A December 12, 1994.........................................
Mary Matthews Burton Subchapter S
Trust U/A December 12, 1994...................................
Luke Doran Burton Subchapter S Trust
U/A December 12, 1994.........................................
Michael Scott Matthews Subchapter S
Trust U/A May 22, 1995........................................
Katherine Dawn Matthews Subchapter
S Trust U/A February 14, 1997.................................
</TABLE>
___________________
*Less than 1%
(1) All share ownership information was provided to the Company by the Selling
Shareholders.
-4-
<PAGE>
SALE OF SHARES
The Shares may be sold from time to time by the Selling Shareholders, or by
pledgees, donees, transferees or other successors in interest. Such sales may be
made from time to time (i) in transactions (which may include block sales) on
the New York Stock Exchange or such other national securities exchange or
automated interdealer quotation system on which shares of Common Stock are then
listed, (ii) in negotiated transactions, or (iii) through a combination of such
methods of sale, at fixed prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices. The Shares may be sold directly to purchasers
or through underwriters, agents or broker-dealers by one or more of the
following: (a) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (c)
a block trade in which the broker or dealer so engaged will attempt to sell the
Shares as agent but may position and resell a portion of the block as principal
to facilitate the transaction; (d) an exchange distribution in accordance with
the rules of the exchange or automated interdealer quotation system on which the
Common Stock is then listed; and (e) through the writing of options on the
Shares. Any such underwriters, agents or broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Shareholders and/or the purchasers of the Shares for which such underwriters,
agents or broker-dealers may act as agents or to whom they sell as principals,
or both (which compensation as to an underwriter, agent or particular broker-
dealer will be negotiated prior to the sale and may be in excess of customary
compensation). If required by applicable law at the time a particular offer of
Shares is made, the terms and conditions of such transaction will be set forth
in a Prospectus Supplement to this Prospectus. In addition, any Shares covered
by this Prospectus which qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
Prospectus.
The Selling Shareholders and any underwriters, agents or broker-dealers who
act in connection with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any compensation received by them might be deemed to be underwriting discounts
and commissions under the Securities Act.
Under agreements that the Selling Shareholders and the Company may enter
into, each underwriter and each person who controls any underwriter may be
entitled to indemnification by the Selling Shareholders and the Company against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to the registration or qualification of the shares, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or the Exchange Act or any
rule or regulation thereunder applicable to the Company and relating to action
or inaction required of the Company in connection with the registration or
qualification of the shares. The Selling Shareholders and the Company have
agreed to indemnify each other against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to the registration
or qualification of the shares, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by the Company of
the Securities Act or the Exchange Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with the registration or qualification of the shares. The
Company will bear all expenses in connection with the registration and sale of
the Shares being offered by the Selling Shareholders, except the expenses
related to special audits incident to or required by this registration,
discounts, concessions or commissions to underwriters, agents or broker-dealers
and fees and expenses of counsel beyond one counsel for all Selling Shareholders
not to exceed five thousand dollars and other advisors to the Selling
Shareholders.
-5-
<PAGE>
LEGAL MATTERS
Certain legal matters in connection with the Common Stock offered hereby
will be passed upon for the Company by Alston & Bird LLP, Atlanta, Georgia.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
-6-
<PAGE>
================================================================================
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus, and if given or made, such information or representations must not
be relied upon as having been authorized by the Company or the Selling
Shareholders. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, to any person in any jurisdiction in which such
offer to sell or solicitation is not authorized, or in which the person making
such offer or solicitation is not qualified to do so, or to any person to whom
it is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that the information contained herein is correct as of any time
subsequent to the date hereof.
______________
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
DOCUMENTS INCORPORATED BY REFERENCE........................................ 2
AVAILABLE INFORMATION...................................................... 2
THE COMPANY................................................................ 3
SELLING SHAREHOLDERS....................................................... 4
SALE OF SHARES............................................................. 5
LEGAL MATTERS.............................................................. 6
EXPERTS.................................................................... 6
</TABLE>
375,000 SHARES
VULCAN MATERIALS
COMPANY
COMMON STOCK
APRIL __, 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the distribution of the Common Stock are
set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated. The Company will bear all
expenses in connection with the registration and sale of the Shares being
offered by the Selling Shareholders, except to the expenses related to special
audits incident to or required by this registration, discounts, concessions or
commissions to underwriters, agents or broker-dealers and fees and expenses of
counsel beyond one counsel for all Selling Shareholders not to exceed five
thousand dollars and other advisors to the Selling Shareholders.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee $12,519
Legal fees and expenses................................................... 25,000
Accountants' fees and expenses............................................ 6,000
Miscellaneous............................................................. 6,481
Total.................................................................. 50,000
</TABLE>
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the New Jersey Business Corporation Act empowers a New
Jersey corporation to indemnify present and former directors, officers,
employees or agents of the corporation and certain other specified persons.
Article IV of the By-Laws of the Registrant provides as follows:
(a) Subject to the provisions of this Article IV, the
corporation shall indemnify the following persons to the fullest extent
permitted and in the manner provided by and the circumstances described in
the laws of the State of New Jersey, including Section 14A:3-5 of the New
Jersey Business Corporation Act and any amendments thereof or supplements
thereto: (i) any person who is or was a director, officer, employee or
agent of the corporation; (ii) any person who is or was a director,
officer, employee or agent of any constituent corporation absorbed by the
corporation in a consolidation or merger, but only to the extent that (a)
the constituent corporation was obligated to indemnify such person at the
effective date of the merger or consolidation or (b) the claim or potential
claim of such person for indemnification was disclosed to the corporation
and the operative merger or consolidation documents contain an express
agreement by the corporation to pay the same; (iii) any person who is or
was serving at the request of the corporation as a director, officer,
trustee, fiduciary, employee or agent of any other domestic or foreign
corporation, or any partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, whether or not for profit; and
(iv) the legal representative of any of the foregoing persons
(collectively, a "Corporate Agent").
(b) Anything herein to the contrary notwithstanding, the
corporation shall not be obligated under this Article IV to provide
indemnification (i) to any bank, trust company, insurance company,
partnership or other entity, or any director, officer, employee or agent
thereof or (ii) to any other person who is not a director, officer or
employee of the corporation, in respect of any service by such person or
entity, whether at the request of the corporation or by agreement
therewith, as investment advisor, actuary, custodian, trustee, fiduciary or
consultant to any employee benefit plan.
(c) To the extent that any right of indemnification granted
hereunder requires any determination that a Corporate Agent shall have been
successful on the merits or otherwise in any Proceeding (as hereinafter
defined) or in defense of any claim, issue or matter therein, the Corporate
Agent shall be deemed to have been "successful" if, without any settlement
having
II-1
<PAGE>
been made by the Corporate Agent, (i) such Proceeding shall have been
dismissed or otherwise terminated or abandoned without any judgment or
order having been entered against the Corporate Agent, (ii) such claim,
issue or other matter therein shall have been dismissed or otherwise
eliminated or abandoned as against the Corporate Agent, or (iii) with
respect to any threatened Proceeding, the Proceeding shall have been
abandoned or there shall have been a failure for any reason to institute
the Proceeding within a reasonable time after the same shall have been
threatened or after any inquiry or investigation that could have led to any
such Proceeding shall have been commenced. The Board of Directors or any
authorized committee thereof shall have the right to determine what
constitutes a "reasonable time" or an "abandonment" for purposes of this
paragraph (c), and any such determination shall be conclusive and final.
(d) To the extent that any right of indemnification granted
hereunder shall require any determination that the Corporate Agent has been
involved in a Proceeding by reason of his or her being or having been a
Corporate Agent, the Corporate Agent shall be deemed to have been so
involved if the Proceeding involves action allegedly taken by the Corporate
Agent for the benefit of the corporation or in the performance of his or
her duties or the course of his or her employment for the corporation.
(e) If a Corporate Agent shall be a party defendant in a
Proceeding, other than a Proceeding by or in the right of the corporation,
and the Board of Directors or a duly authorized committee of disinterested
directors shall determine that it is in the best interests of the
corporation for the corporation to assume the defense of any such
Proceeding, the Board of Directors or such committee may authorize and
direct that the corporation assume the defense of the Proceeding and pay
all expenses in connection therewith without requiring such Corporate Agent
to undertake to pay or repay any part thereof. Such assumption shall not
affect the right of any such Corporate Agent to employ his or her own
counsel or to recover indemnification under this By-law to the extent that
he may be entitled thereto.
(f) As used herein, the term "Proceeding" shall mean and include
any pending, threatened or completed civil, criminal, administrative or
arbitrative action, suit or proceeding, and any appeal therein and any
inquiry or investigation which could lead to such action, suit or
proceeding.
(g) The right to indemnification granted under this Article IV
shall not be exclusive of any other rights to which any Corporate Agent
seeking indemnification hereunder may be entitled.
The Company maintains directors and officers liability insurance which
insures against liabilities that directors and officers of the Company may incur
in such capacities.
Pursuant to a Registration Rights Agreement between the C.W. Matthews, the
shareholders of C.W. Matthews and the Company, the Selling Shareholders have
agreed to indemnify the Company, each of its directors and officers and each
underwriter, if any, of the Company's securities covered by this registration
statement, each person who controls the Company or such underwriter against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in this registration statement, prospectus, offering
circular or other document made by such Selling Shareholder, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements by such Selling Shareholder therein not
misleading, and will reimburse the Company and such directors, officers,
partners, members, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in this registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished
II-2
<PAGE>
to the Company by such Selling Shareholder and stated to be specifically for use
therein; provided, however, that the obligations of each of the Selling
Shareholders hereunder is limited to an amount equal to the net proceeds to such
Selling Shareholder of securities being sold..
II-3
<PAGE>
ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2 Asset Purchase Agreement and Plan of Reorganization (the
"Asset Purchase Agreement") dated September 29, 1997, by and
among C.W. Matthew Quarries, Inc., the shareholders of C.W.
Matthews Quarries, Inc. and the Company, as amended by the
First Amendment to the Asset Purchase Agreement dated
December 19, 1997, and the Second Amendment to the Asset
Purchase Agreement dated January 15, 1998.
3 (i) Certificate of Incorporation (Restated 1988) of the Company
filed as Exhibit 3 (a) to the Company's 1988 Form 10-K
Annual Report (File No. 1-4033).*
3 (ii) By-laws of the Company, as restated February 2, 1990, and as
last amended February 14, 1997, filed as Exhibit 3(ii) to
the Company's 1996 Form 10-K Annual Report (File No. 1-
4033).*
5 Opinion of Alston & Bird LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Alston & Bird LLP (included in Exhibit 5).
24 Powers of Attorney.
99 Form of Registration Rights Agreement by and between C.W.
Matthews, the shareholders of C.W. Matthews and the Company
* Incorporated by reference
Item 17. UNDERTAKINGS
(a) The Undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and 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% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement.
II-4
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Section
do not apply if the Registration Statement is on Form S-3, Form S-8 or Form
F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the Registration Statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any
delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Securities
Act need not be furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, the financial
statements required pursuant to this paragraph (a)(4) and other information
necessary to insure that all other information in the prospectus is at
least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to Registration Statements on Form F-3, a post-
effective amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Securities Act or Rule 3-19
of this Chapter if such financial statements and information are contained
in periodic reports filed with or furnished with the Commission 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 Form F-3.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 the
initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama, as of April 20, 1998.
VULCAN MATERIALS COMPANY
By: /s/ DONALD M. JAMES
--------------------------------------------
Donald M. James
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of April 20, 1998.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/S/ D. M. James Chairman, Chief Executive Officer and April 20, 1998
----------------------
D. M. James and Director
(Principal Executive Officer)
/s/ P.J. Clemens, III Executive Vice President - Finance and April 20, 1998
----------------------
P.J. Clemens, III and Administration
(Principal Financial Officer)
/s/ E.A. Khan Controller April 20, 1998
---------------------- (Principal Accounting Officer)
E.A. Khan
The following directors:
Marion H. Antonini Director
Livio D. Desimone Director
John K. Greene Director
Douglas J. McGregor Director
Ann D. McLaughlin Director
James V. Napier Director
Donald B. Rice Director
Herbert A. Sklenar Director
Orin R. Smith Director
By:/s/ William F. Denson, III April 20, 1998
-----------------------------
William F. Denson, III
Attorney-in-fact
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2 Asset Purchase Agreement and Plan of Reorganization (the
"Asset Purchase Agreement") dated September 29, 1997, by and
among C.W. Matthews Quarries, Inc., the shareholders of C.W.
Matthews Quarries, Inc. and the Company, as amended by the
First Amendment to the Asset Purchase Agreement dated
December 19, 1997 and the Second Amendment to the Asset
Purchase Agreement dated January 15, 1998.
5 Opinion of Alston & Bird LLP.
23.1 Consent of Deloitte & Touche LLP.
24 Powers of Attorney.
99 Form of Registration Rights Agreement by and between C.W.
Matthews, the shareholders of C.W. Matthews and the Company
<PAGE>
EXHIBIT 2
---------------------------------------
ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
C.W. MATTHEWS QUARRIES, INC.,
THE SHAREHOLDERS OF
C.W. MATTHEWS QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
---------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
[Not Part of the Agreement]
<TABLE>
<S> <C>
ARTICLE I: ASSETS TO BE PURCHASED........................................... 2
1.1. Description of Purchased Assets........................................ 2
1.2. Retained Assets........................................................ 4
ARTICLE II: PURCHASE PRICE OF THE PURCHASED ASSETS.......................... 5
2.1. Purchase Price......................................................... 5
2.2. Form of Consideration.................................................. 7
2.3. Closing Date Payment................................................... 7
2.4. Closing Date Report.................................................... 8
2.5. Review of the Closing Date Report...................................... 8
2.6. Final Purchase Price................................................... 8
2.7. Liquidation of Seller; Pro Rata Payments............................... 9
2.8. Prorations and Certain Payments........................................ 9
2.9. Transfer Expenses...................................................... 9
ARTICLE III: ASSUMPTION OF CERTAIN LIABILITIES; CERTAIN
RELATED TRANSACTIONS.................................................... 9
3.1. Assumption of Certain Liabilities...................................... 9
3.2. Assignment of Contract Rights.......................................... 11
3.3. Execution of Assignment and Assumption Agreement....................... 11
3.4. Execution of Bill of Sale.............................................. 11
3.5. Agreement Regarding Cement Kiln Feedstock.............................. 12
ARTICLE IV: THE CLOSING..................................................... 12
4.1. The Closing............................................................ 12
4.2. Changes................................................................ 12
4.3. Closing Date; Effective Time........................................... 12
ARTICLE V: ACTIONS AND DELIVERIES AT OR PRIOR TO THE
CLOSING................................................................ 12
5.1. Deliveries by Seller................................................... 12
5.2. Deliveries by Buyer.................................................... 14
5.3. Provisions Relating to the Real Property, the Additional Property and
the Leasehold Property................................................. 14
5.4. Provisions Relating to Machinery and Equipment......................... 16
5.5. Eminent Domain......................................................... 17
5.6. Environmental Matters.................................................. 17
ARTICLE VI: COVENANTS OF BUYER, SELLER AND THE
SHAREHOLDERS........................................................... 19
6.1. Inspection............................................................. 19
6.2 Exploration............................................................ 19
</TABLE>
<PAGE>
<TABLE>
<S> <C>
6.3. Conduct of Business Prior to Closing................................... 20
6.4. Consents; HSR Act...................................................... 21
6.5. Employee Compensation, Etc............................................. 21
6.6. No Public Announcement................................................. 21
6.7. No Third-Party Negotiations............................................ 22
6.8. Supplemental Disclosure................................................ 22
6.9. Discharge of Liens and Encumbrances.................................... 22
ARTICLE VII: POST-CLOSING COVENANTS OF BUYER, SELLER AND
THE SHAREHOLDERS....................................................... 22
7.1. Non-Competition Agreement.............................................. 22
7.2. Further Assurances..................................................... 23
7.3. Confidentiality........................................................ 23
7.4. Availability of Employees and the Shareholders......................... 23
7.5. Asphalt Plant Site License............................................. 23
ARTICLE VIII................................................................. 23
ARTICLE IX: REPRESENTATIONS AND WARRANTIES OF SELLER
AND THE SHAREHOLDERS................................................... 24
9.1. Organization, Etc...................................................... 24
9.2. Authority.............................................................. 24
9.3. Approval............................................................... 25
9.4. Governmental Approval and Consents..................................... 25
9.5. Machinery and Equipment................................................ 25
9.6. Property and Improvements.............................................. 25
9.7. Good Title, Etc........................................................ 26
9.8. No Violation of Law; No Litigation..................................... 26
9.9. No Adverse Change...................................................... 27
9.10. No Disposition of Assets, Etc.......................................... 27
9.11. Employees, Compensation, Etc........................................... 27
9.12. Labor Relations........................................................ 29
9.13. Employment Claims...................................................... 29
9.14. Contracts and Commitments.............................................. 29
9.15. Financial Statements................................................... 29
9.16. No Undisclosed Liabilities............................................. 30
9.17. Tax Matters............................................................ 30
9.18. Employee Taxes, Etc.................................................... 30
9.19. Insurance.............................................................. 31
9.20. Ownership of Essential Assets; Presence of Essential Assets............ 31
9.21. Environmental Laws and Regulations..................................... 31
9.22. No Untrue Statements................................................... 33
9.23. Reliance............................................................... 34
9.24. Confidential Material.................................................. 34
9.25. No Undue Influence..................................................... 34
</TABLE>
<PAGE>
<TABLE>
<S> <C>
9.26. No Materially Adverse Contracts........................................ 34
9.27. Representations and Warranties of Shareholders......................... 34
9.28. Brokers and Finders.................................................... 36
9.29. Intellectual Property.................................................. 36
ARTICLE X: REPRESENTATIONS AND WARRANTIES OF BUYER.............................. 37
10.1. Organization, Etc...................................................... 37
10.2. Authority.............................................................. 37
10.3. Approval............................................................... 37
10.4. Governmental Approval and Consents..................................... 37
10.5. No Litigation.......................................................... 37
10.6. No Untrue Statements................................................... 38
10.7. Buyer's Capitalization................................................. 38
10.8. Brokers and Finders.................................................... 38
10.9. Purchase Price......................................................... 38
ARTICLE XI: SURVIVAL; INDEMNIFICATION; RELATED MATTERS......................... 38
11.1. Survival............................................................... 38
11.2. Indemnification........................................................ 39
ARTICLE XII: CONDITIONS TO CLOSING APPLICABLE TO BUYER......................... 42
12.1. Correctness of Warranties, Etc......................................... 42
12.2. No Undisclosed Liabilities, Etc........................................ 42
12.3. No Proceedings......................................................... 42
12.4. Satisfaction of Buyer and Its Counsel.................................. 42
12.5. Opinion of Counsel..................................................... 42
12.6. Consents............................................................... 42
12.7. Reserves............................................................... 43
12.8. Environmental and Land Use............................................. 43
12.9. Deliveries............................................................. 43
12.10 Extension of Bellwood Quarry Lease..................................... 43
12.11. Estoppel Certificates.................................................. 43
ARTICLE XIII: CONDITIONS TO CLOSING APPLICABLE TO SELLER
AND THE SHAREHOLDERS................................................... 43
13.1. Correctness of Warranties, Etc......................................... 43
13.2. No Proceedings......................................................... 44
13.3. Satisfaction of Seller and Its Counsel................................. 44
13.4. Opinion of Counsel to Buyer............................................ 44
ARTICLE XIV: BULK SALES LAWS.................................................... 44
ARTICLE XV: MISCELLANEOUS....................................................... 44
15.1. Termination of Agreement............................................... 44
15.2. Notices................................................................ 45
</TABLE>
<PAGE>
<TABLE>
<S> <C>
15.3. Headings; Captions................................................ 47
15.4. Incorporation of Exhibits......................................... 47
15.5. Entire Agreement and Amendment.................................... 47
15.6. Successors and Assigns............................................ 47
15.7. Governing Law..................................................... 48
15.8. Counterparts...................................................... 49
15.9. Reserved.......................................................... 49
15.10. Taxes; Prorations................................................. 49
15.11. No Benefit to Others.............................................. 49
15.12. Partial Invalidity................................................ 49
15.13. Investigation..................................................... 49
15.14. Public Announcements.............................................. 49
15.15. Dispute Resolution................................................ 50
15.16. Knowledge......................................................... 50
</TABLE>
<PAGE>
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
ASSET PURCHASE AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is
made and entered into as of this 29th day of September, 1997, by and among C.W.
MATTHEWS QUARRIES, INC., a Georgia corporation ("Seller"), the shareholders of
Seller listed on Exhibit A hereto (each a "Shareholder", and collectively, the
"Shareholders") and VULCAN MATERIALS COMPANY, a New Jersey corporation
("Buyer").
W I T N E S S E T H :
---------------------
WHEREAS, Seller is currently in the business of aggregate production and
sales, including, without limitation, the extraction, loading, unloading,
handling, processing, stockpiling and selling of crushed aggregates or materials
at (a) the quarry located at Bellwood in the City of Atlanta, Fulton County,
Georgia upon the tracts or parcels of land more particularly described in
Exhibit B hereto (the "Bellwood Quarry"), and (b) the quarry located in Polk
County, Georgia upon the tracts or parcels of land more particularly described
in Exhibit C hereto (the "Rockmart Quarry") (collectively, the "Business");
WHEREAS, Seller wishes to transfer the Purchased Assets (as hereinafter
defined) to Buyer solely in exchange for the Stock Consideration (as hereinafter
defined) and the assumption of liabilities described herein;
WHEREAS, Buyer wishes to acquire the Purchased Assets from Seller, all as
hereinafter more fully set forth;
WHEREAS, it is the intention of Seller and Buyer that the transfer of the
Purchased Assets, representing substantially all of the properties and assets of
Seller, shall qualify for federal income tax purposes as a "reorganization"
within the meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986,
as amended (the "Code"); and
WHEREAS, as an integral part of the transaction, it is the intention of the
parties that Seller distribute the Stock Consideration to its shareholders and
completely liquidate and dissolve;
NOW, THEREFORE, for and in consideration of Ten and 00/100 Dollars, the
mutual representations, warranties, covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto mutually covenant and agree as
follows:
<PAGE>
ARTICLE I
ASSETS TO BE PURCHASED
----------------------
SECTION 1.1. DESCRIPTION OF PURCHASED ASSETS. Upon the terms and subject
to the conditions herein expressed, Seller agrees to sell, convey, transfer,
assign, set over and deliver to Buyer on the Closing Date, effective as of the
Effective Time (as said terms are defined in Section 4.3 hereof), the following
assets of the Business then owned or operated by Seller and necessary for the
conduct of the Business as it has been and is currently being conducted, free
and clear of any and all encumbrances, other than as set forth herein:
(a) all machinery, equipment, tools, motor vehicles, trucks, front-
end loaders and other rolling stock, computers, terminals, computer
equipment, office equipment, furniture, business machines, telephones and
telephone systems, accessories and other tangible assets used in the
Business and located at the Bellwood Quarry and the Rockmart Quarry (the
Bellwood Quarry and the Rockmart Quarry being sometimes hereinafter
collectively referred to as the "Facilities") as of the Effective Time,
together with any and all assignable warranties of third parties with
respect thereto, all as more particularly set forth in Exhibit 1.1(a)
hereto (collectively, the "Machinery and Equipment");
(b) all inventory of construction aggregate, shot rock and any other
aggregate or materials other than the Recycled Asphalt Pavement (as
hereinafter defined) located at the Facilities on the Closing Date
(collectively, the "Aggregate Inventory"); provided, however, that the
-------- -------
purchase price for the Aggregate Inventory shall be separately determined
as more fully set forth in Article II below;
(c) subject to any required consents of such employees, all personnel
records of employees of Seller whose employment with Seller will be
terminated and who are hired by Buyer as a result of the transaction; all
marketing studies, customer lists, customer files, supplier files, sales
agent and manufacturers' representatives files, credit files, credit data,
appraisals, valuations, and consulting studies and all other records and
reports relating to the assets purchased by Buyer; all printed and other
advertising, sales and promotional materials, and catalogues and supplies;
and all computer programs, computer software, computer manuals, flowcharts,
printouts, data files, program documentation and all other materials of
Seller which relate to the Business and all copies of each thereof
(collectively, the "Files and Records");
(d) (i) all fee simple interests of Seller in the real property more
particularly described on Exhibit 1.1(d)(i) hereto, together with the
buildings, fixtures, structures, parking areas, landscaping, elevators,
HVAC, plumbing, electrical, drainage, security, life safety and fire alarm
systems (and their component parts), and other improvements located
thereon, and together with all
<PAGE>
of Seller's right, title and interest in and to all utility reservations,
rights of way, strips and gores of land, uses, rights, licenses, easements,
privileges, hereditaments, tenements, reversions, remainders, and
appurtenances in any way belonging, remaining or appertaining thereto and
any and all assignable warranties of third parties with respect thereto
(collectively, the "Real Property"); (ii) approximately eleven (11) acres
of real property presently owned by the City of Atlanta Housing Authority
and located adjacent to the Bellwood Quarry (the "Additional Property"),
but only if the same is acquired by Seller prior the Closing Date and Buyer
elects to purchase the Additional Property hereunder; (iii) all leasehold
interests of Seller, as tenant or lessee, under the leases described in
Exhibit 1.1(d)(iii) hereto, together with the buildings, fixtures,
structures, parking areas, landscaping, elevators, HVAC, plumbing,
electrical, drainage, security, life safety and fire alarm systems (and
their component parts), and other improvements located thereon, and
together with all of Seller's right, title and interest in and to all
utility reservations, rights of way, strips and gores of land, uses,
rights, licenses, easements, privileges, hereditaments, tenements,
reversions, remainders, and appurtenances in any way belonging, remaining
or appertaining thereto and any and all prepaid rent and assignable
warranties of third parties with respect thereto (collectively, the
"Leasehold Property") (the Real Property, the Additional Property and the
Leasehold Property are sometimes hereinafter collectively referred to as
the "Property");
(e) all interests of Seller under the contracts, commitments,
arrangements, license agreements, purchase and sales orders, leases,
guarantees, warranties, service contracts and other agreements described in
Exhibit 1.1(e) hereto (collectively, the "Contracts");
(f) all governmental and other approvals, orders, licenses, permits,
authorizations and certifications relating to the Business which may be
transferred to Buyer and which are set forth on Exhibit 1.1(f) hereto
(collectively, the "Permits");
(g) any insurance proceeds paid after the Effective Time or payable
to Seller pursuant to any contract of insurance as a result of damage to or
loss of any of the assets owned or operated by Seller that are to be, or in
the absence of loss would otherwise have been, sold to Buyer hereunder, or
damage or loss with respect to or interruption of the operation of the
Business, the purpose of this provision being to assure that Buyer receives
the insurance proceeds otherwise payable to Seller intended to make the
Seller whole on account of any damage or loss to the assets being purchased
by Buyer or damage or loss to or interruption of the operations of the
Business subsequent to the Effective Time (collectively, the "Insurance
Proceeds");
(h) all operating supplies not identified in Section 1.1(i),
including, without limitation, those necessary or useful in connection with
the operation and
<PAGE>
maintenance of the Machinery and Equipment, and replacement and spare
parts, subject to adjustment at Closing as hereinafter provided
(collectively, the "Operating Parts and Supplies");
(i) all stationery and other imprinted material and office supplies,
catalogues, circulars, advertising material, business records (or copies
thereof) which are related to the Business, the right to receive mail and
other communications and shipments of merchandise addressed to Seller and
related to the Business, and the rights to Seller's telephone numbers
(collectively, the "Office Supplies");
(j) all accounts receivable as shown on the books and records held by
the Business on the Effective Date, together with all documentation
relating thereto, subject to adjustment at Closing as hereinafter provided
(collectively, the "Accounts Receivable");
(k) all of Seller's rights in and to: patents, designs, art work,
designs-in progress, formulations, know-how, prototypes, inventions,
trademarks, trade names, trade styles, service marks and copyrights used by
Seller in connection with the Business, except the names "C.W. Matthews",
"Matthews" or "CWM"; all registrations and applications therefor, both
registered and unregistered, foreign and domestic; all trade secrets or
processes used by Seller in connection with the Business; all computer
software (including documentation and related object and, if applicable,
source codes) owned by Seller; and all confidential or proprietary
information that are either (A) owned by Seller, or (B) as to which Seller
has rights as licensee, constituting all of the intellectual property of
Seller used in the Business and which does not relate solely to the
Retained Assets (collectively, the "Intellectual Property"); and
(l) except for the Retained Assets (as hereinafter defined), all
other assets or interests to which Seller has any right by ownership, use
or otherwise, or in which Seller has a conveyable or assignable interest on
the Closing Date and which relate to the Business, and without which the
Business could not be operated consistent with current and past practice
(collectively, the "Other Assets").
The Machinery and Equipment, the Aggregate Inventory, the Files and
Records, the Real Property, the Additional Property (if applicable), the
Leasehold Property, the Contracts, the Permits, the Insurance Proceeds, the
Operating Parts and Supplies, the Office Supplies, the Accounts Receivable, the
Intellectual Property and the Other Assets to be so sold, conveyed, transferred,
assigned, set over and delivered to Buyer on the Closing Date are sometimes
hereinafter collectively referred to as the "Purchased Assets".
SECTION 1.2. RETAINED ASSETS. Seller shall retain on the Closing Date
only the following assets used in the conduct of the Business (collectively, the
"Retained Assets"):
<PAGE>
(a) all cash on hand and in banks at the Effective Time;
(b) the assets of any Employee Benefit Plan (as hereinafter defined)
maintained by or covering any employees of Seller or to which Seller has
made any contribution;
(c) any rights or benefits which accrue or will accrue to Seller or
the Shareholders under this Agreement;
(d) any rights to any of Seller's or any of the Shareholder's claims
for any federal, state, local, or foreign tax refund;
(e) all claims and causes of action of every kind and description
which Seller or any of the Shareholders may have against any person arising
out of, or relating to, the Business or any item included within the
definition of Purchased Assets (except any claims under the warranties
being transferred to Buyer as contemplated by Section 1.1(a));
(f) all of Seller's rights in, to and under the Permits, to the
extent that the same are not transferable without the consent of another
person and such consent has not been obtained prior to or following the
Closing;
(g) all corporate names, tradenames, accounting records, tax returns,
minute books, stock record books and other corporate governance records;
(h) other than prepaid rent relating to the Leased Property, all
deposits, prepaid advertising, other prepaid items and deferred charges;
(i) all notes receivable, commissions receivable, deposits, advances
and other receivables, not including the Accounts Receivable; and
(j) up to approximately 100,000 tons of recycled asphalt pavement
(collectively, the "Recycled Asphalt Pavement"), such Recycled Asphalt
Pavement to be removed by Seller within two (2) years following the
Closing.
Furthermore, Buyer is not assuming any liabilities or obligations of Seller
except as expressly set forth, and only to the extent described, in Article III
below.
ARTICLE II
PURCHASE PRICE OF THE PURCHASED ASSETS
--------------------------------------
SECTION 2.1. PURCHASE PRICE. The purchase price of the Purchased Assets,
other than the Aggregate Inventory, the Operating Parts and Supplies, the
Additional Property
<PAGE>
and the Accounts Receivable, shall be equal to Twenty-Three Million Eight
Hundred Thousand and 00/100 Dollars ($23,800,000.00), to be paid to Seller in
shares of Buyer's common stock, $1.00 par value ("Buyer's Common Stock"), as
hereinafter provided, at the Closing, subject to the following adjustments.
(a) The amount of the Aggregate Inventory shall be determined by the
parties by a ground survey to be conducted prior to the Closing Date. That
amount shall be adjusted for all sales and increase in production of the
Aggregate Inventory made by Seller subsequent to the survey but prior to the
Effective Time. Buyer shall pay Seller, in shares of Buyer's Common Stock, as
hereinafter provided, at the Closing for all of the Aggregate Inventory, as
follows: Buyer will pay the equivalent of $4.00 per ton for all commercially-
saleable, processed inventory of construction aggregate stockpiled at the
Facilities, and the equivalent of $2.00 per ton for the agreed-upon volume of
shot rock which is accessible and ready for processing in the primary circuits
of the plants located at the Facilities. The term "commercially-saleable" shall
mean no more than the average annual number of tons (averaged over the three
(3)-calendar year period ending on December 31, 1996) of each size and type of
processed construction aggregate (other than soil aggregate base) meeting
recognized specifications which were sold from the Bellwood Quarry and the
Rockmart Quarry.
(b) Additionally, not more than thirty (30) days prior to Closing Date,
the parties shall conduct an inventory of the Operating Parts and Supplies, and
at the Closing, Buyer shall pay Seller, in shares of Buyer's Common Stock, as
hereinafter provided, the value in excess of book value for the inventory of the
Operating Parts and Supplies, to be determined by a joint evaluation of the
Operating Parts and Supplies prior to Closing.
(c) Buyer shall also pay Seller, in Buyer's Common Stock, as hereinafter
provided, the face amount of the Accounts Receivable as of the Closing Date;
provided, however, that the Shareholders shall be obligated to repurchase from
- -------- -------
Buyer, at the face amount thereof, in cash or, at the Shareholders' option, in
Buyer's Common Stock, valued at the Base Period Trading Price described in
Section 2.2 (except that the period of twenty (20) consecutive trading days in
the definition of "Base Period Trading Price" will end on the trading day that
is the business day prior to the date of such repurchase, rather than the
Closing Date, and there shall be no minimum or maximum price per share of
Buyer's Common Stock), any of the Accounts Receivable which have not been
collected by Buyer within one hundred twenty (120) days of the Closing Date, as
long as Buyer has applied the cash received by Buyer from the customers of the
Business after the Closing Date first to the appropriate Accounts Receivable.
(d) In the event that Seller acquires the Additional Property prior to the
Closing Date and Buyer elects to purchase the same hereunder, the Additional
Property shall be included in the Purchased Assets and the purchase price set
forth above shall be increased by Seller's acquisition cost of the Additional
Property and related expenses, including, but not limited to, survey fees,
title, insurance and title examination fees,
<PAGE>
transfer tax, recording costs and environmental surveys, payable in Buyer's
Common Stock as hereinafter provided.
(e) Finally, in consideration of Buyer's assumption of Seller's royalty
liability to Fulton County, Georgia under the Bellwood Quarry Lease (as defined
in Exhibit 1.1(d)(iii) hereto) as of the Closing Date, but provided that C.W.
Matthews Contracting Co., Inc., a Georgia corporation affiliated with Seller
("Contracting"), enters into a mutually-acceptable asphalt supply agreement (the
"Asphalt Supply Agreement") with Buyer at the Closing, the purchase price
payable hereunder shall be reduced by an amount equal to $4.00 per ton
multiplied by the number of tons of aggregate for which Buyer will be liable as
of the Closing Date to Fulton County, Georgia for royalty payments under the
Bellwood Quarry Lease, assuming for the purposes hereof that Fulton County,
Georgia elects to receive the royalty payments solely in granite aggregate. The
Asphalt Supply Agreement shall, at a minimum, provide that, in the event that
Fulton County, Georgia chooses to receive its royalty payments under the
Bellwood Quarry Lease in plant mixed asphalt rather than granite aggregate, and
also in the event that Fulton County, Georgia elects to make outright purchases
of asphalt mix as a customer pursuant to the Bellwood Quarry Lease, Contracting
would agree to supply such asphalt to Buyer at the same price per ton as such
asphalt mix is required to be supplied to Fulton County, Georgia under the terms
of the Bellwood Quarry Lease as then in effect, and Contracting would purchase
the aggregate for such asphalt mix from Buyer from time to time.
The sum of all payments made pursuant to this Article II shall hereinafter be
referred to as the "Purchase Price".
SECTION 2.2. FORM OF CONSIDERATION. Buyer shall pay the Purchase Price to
the Shareholders pursuant to Section 2.7, in the form of Buyer's Common Stock,
which shares shall be fully-paid, validly-issued, non-assessable, registered
under the Securities Act of 1933, as amended (the "Securities Act"), and all
other applicable securities laws for resale thereof, and listed on the New York
Stock Exchange pursuant to a registration rights agreement to be agreed between
the parties and reasonably acceptable to Seller and Shareholders. The aggregate
number of shares of Buyer's Common Stock to be delivered to the Shareholders
shall be equal to the Purchase Price divided by the Base Period Trading Price.
As used herein, "Base Period Trading Price" shall mean the average of the daily
closing prices for shares of Buyer's Common Stock for the twenty (20)
consecutive trading days on which such shares are actually traded on the New
York Stock Exchange (as reported by The Wall Street Journal) ending at the close
of trading on the trading day that is the business day immediately prior to the
Closing Date; provided, however, that it is mutually agreed and understood that
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the Base Period Trading Price shall be no less than $52.875, and no more than
$72.875. Notwithstanding the foregoing, no Shareholder shall be entitled to
receive any fractional share of Buyer's Common Stock, and each Shareholder shall
forfeit any such fractional share and shall not be entitled to any consideration
in lieu thereof. The Buyer's Common Stock paid to the Shareholders hereunder is
referred to herein as the "Stock Consideration".
<PAGE>
SECTION 2.3. CLOSING DATE PAYMENT. Seller shall deliver to Buyer a
written statement setting forth all of the values comprising the Purchase Price
which are described in Section 2.1 on the Closing Date (the "Pre-Closing
Report"), prepared and stated in accordance with all requirements of this
Article II relating to the Closing Date Report (as hereinafter defined), and
computing the Purchase Price as it would have been due on the Closing Date (the
"Estimated Purchase Price"). On the Closing Date, Buyer shall deliver to the
Shareholders the aggregate number of shares of Buyer's Common Stock equal to the
Estimated Purchase Price shown on the Pre-Closing Report (the "Closing Date
Payment").
SECTION 2.4. CLOSING DATE REPORT. Not later than thirty (30) days after
the Closing Date, Buyer, with full cooperation from the Shareholders and Seller,
shall prepare and deliver to the Shareholders a written statement (the "Closing
Date Report") setting forth all of the values comprising the Purchase Price
which are described in Section 2.1 as of the Closing Date.
SECTION 2.5. REVIEW OF THE CLOSING DATE REPORT. Upon receipt of the
Closing Date Report, the Shareholders shall have twenty (20) days in which to
review such Closing Date Report, and during such time period, Seller shall
provide the Shareholders' representative access to such books, records and
employees as he or she shall reasonably request in connection with such review.
The Shareholders' representative, acting on behalf of the Shareholders, may
object to the Closing Date Report by sending a written notice, explaining in
reasonable detail the reason(s) for the objection, to Buyer and Seller within
ten (10) days following the twenty (20)-day review period. Buyer and the
Shareholders' representative shall endeavor, in good faith, to resolve any such
objections and reach agreement on the Closing Date Report. If Buyer and the
Shareholders' representative cannot agree on the Closing Date Report, Buyer and
the Shareholders' representative shall promptly submit the Closing Date Report
to Deloitte & Touche, and such firm shall determine all disputed amounts on the
Closing Date Report in accordance with the provisions of this Agreement. The
determinations made by such accountants shall be final and binding on all
parties, absent manifest error. Buyer, on the one hand, and the Shareholders, on
the other hand, shall each bear one-half (1/2) of the fees and expenses of
Deloitte & Touche acting hereunder, but the fees and expenses of any other
accountants will be borne by the party retaining such accountants. If Buyer does
not receive a written objection to the Closing Date Report from the
Shareholders' representative within the ten (10) days following the twenty (20)-
day review period, the Closing Date Report shall be deemed accepted by all of
the Shareholders.
SECTION 2.6. FINAL PURCHASE PRICE. In the event that the Purchase Price
based on the Closing Date Report, as finally resolved as provided in Section
2.5, exceeds the Closing Date Payment, Buyer will pay the excess by delivering
to the Shareholders the appropriate number of shares of Buyer's Common Stock,
determined by dividing the excess amount by the Base Period Trading Price. In
the event that the Purchase Price based on the Closing Date Report, as finally
resolved as provided in Section 2.5, is less than the Closing Date Payment, the
Shareholders shall return to Buyer that number of
<PAGE>
shares of Buyer's Common Stock equal to the difference, determined by using the
Base Period Trading Price, except that, with respect to the amount owed by each
of the Shareholders hereunder, any fractional shares comprising such amount
shall be forfeited by Buyer, and Buyer shall not be entitled to any
consideration in lieu thereof.
SECTION 2.7. LIQUIDATION OF SELLER; PRO RATA PAYMENTS. The parties hereto
agree and acknowledge that, prior to the Closing, Seller will adopt a Plan of
Liquidation and Dissolution (the "Plan of Liquidation") substantially in the
form attached hereto as Exhibit 2.7 and that, pursuant to the Plan of
Liquidation, the Shareholders shall receive all of Seller's assets as of the
date of Seller's liquidation and dissolution, including any rights it may have
under this Agreement. The parties hereto further agree and acknowledge that, as
an integral part of carrying out the terms of the Plan of Liquidation, the Stock
Consideration shall be issued to the Shareholders as consideration to Seller for
the Purchased Assets. All Stock Consideration issued to the Shareholders shall
be issued in pro rata amounts to each Shareholder in accordance with each
Shareholder's pro rata ownership of Seller's capital stock as reflected on
Exhibit A.
SECTION 2.8. PRORATIONS AND CERTAIN PAYMENTS. Prorations relating to the
Business and the Purchased Assets (including, but not limited to, utility bills
and personal property, real estate, occupancy and other similar property taxes)
will be made as mutually agreed to by the parties prior to the Closing, with
Seller liable to the extent such items relate to any time period prior to
Closing.
SECTION 2.9. TRANSFER EXPENSES. Seller and the Shareholders shall pay any
sales and use, transfer or recording, documentary or other taxes or charges
levied on the transfer of the Purchased Assets. The Aggregate Inventory
purchased hereunder shall be claimed as exempt from sales or use tax by Buyer,
and Buyer shall furnish to Seller at the Closing the sales tax exemption
certificates covering the Aggregate Inventory.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES;
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CERTAIN RELATED TRANSACTIONS
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SECTION 3.1. ASSUMPTION OF CERTAIN LIABILITIES. On the Closing Date,
Buyer shall not be obligated to assume, and shall not assume, any of the
liabilities and obligations of Seller, whether existing as of the Effective
Time, or asserted or first arising after the Effective Time and relating to
events that occurred before the Effective Time, or otherwise, which liabilities
and obligations Seller agrees to pay and discharge (collectively, the "Excluded
Liabilities"), except that Buyer shall assume and agree to pay, perform and
discharge the following liabilities and obligations of Seller as of the
Effective Time, which shall be assumed by Buyer on the Closing Date as of the
Effective Time:
(a) the future obligations of Seller under the Contracts and the
Permits;
<PAGE>
(b) except as provided to the contrary in Sections 2.1(e) and 11.2
and the Assignment and Assumption Agreement, the future obligations of
Seller with respect to the Real Property, the Additional Property (if
applicable) and the Leasehold Property, including Seller's obligations
under the Bellwood Quarry Lease and the Rockmart Quarry Lease, including
Environmental Liability; and
(c) subject to Seller's delivery of the Asphalt Supply Agreement in
the form contemplated by Section 2.1(e), Seller's liability to Fulton
County, Georgia for royalty payments pursuant to the Bellwood Quarry Lease.
Anything to the contrary in this Agreement or otherwise notwithstanding,
Buyer shall not assume, and shall have no liability with respect, to any
liabilities or obligations of Seller which are not expressly assumed by Buyer
pursuant to this Article III, including, without limitation, any of the
following items, each of which items shall constitute an Excluded Liability
hereunder:
(i) any liability or obligation arising out of any Employee Benefit
Plan (as hereinafter defined) maintained by or covering employees of Seller
or to which Seller has made any contribution or to which Seller could be
subject to any liability;
(ii) any losses, costs, expenses, damages, claims, demands and
judgments of every kind and nature (including the defenses thereof and
reasonable attorneys' and other professional fees) related to, arising out
of, or in connection with Seller's failure to comply with any bulk sales or
transfer act or any similar statute as enacted in any jurisdiction,
domestic or foreign;
(iii) any liability or obligation arising out of any breach by Seller
or any of the Shareholders prior to the Effective Time of any provision of
any contract to which Seller or any of the Shareholders is a party and any
liability or obligation of Seller related to the performance required under
the Contracts and the Permits before the Effective Time;
(iv) any liability of Seller or any of the Shareholders with respect
to any claim or cause of action, regardless of when made or asserted, which
arises (A) out of or in connection with the business and operations of
Seller prior to the Effective Time, (B) with respect to any product
purchased or manufactured or any service provided by Seller prior to the
Effective Time, including, without limitation, any liability or obligation
of Seller or any of the Shareholders (I) pursuant to any express or implied
representation, warranty, agreement, or guarantee made by Seller, or (II)
imposed by operation of law, in connection with any service performed or
product designed, manufactured, sold or leased by or on behalf of Seller
prior to the Effective Time, including, without limitation, any claim
related to any product delivered in connection with the performance of such
service and any claims seeking to recover for consequential damage, lost
revenue or income,
<PAGE>
including pursuant to any doctrine of product liability, or (C) out of or
in connection with the Business and operations of Seller prior to the
Effective Time under any federal, state, or local law, rule, or regulation
relating to (I) taxation, or (II) employment or termination of employment;
(v) any liabilities or obligations of Seller or any of the
Shareholders relating to the Retained Assets;
(vi) any liability or obligation, arising prior to the Effective
Time or as a result of the Closing, to any employee, agent or independent
contractor of Seller, whether or not employed by Buyer after the Closing,
or under any Employee Benefit Plan maintained by or covering employees of
Seller;
(vii) except for the liabilities expressly assumed by Buyer
hereunder, any liability of Seller or any of the Shareholders existing at
the Effective Time;
(viii) any liability or obligation of Seller or any of the
Shareholders arising or incurred in connection with the negotiation,
preparation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, fees and
expenses of their respective counsel, accountants and other experts;
(ix) any liability or obligation of Seller or any of the
Shareholders for federal, state, county, local, foreign and other taxes,
assessments, charges, fees, and impositions, including interest and
penalties thereon or with respect thereto, whether disputed or not
(collectively, "Taxes"), including any liabilities or obligations of Seller
or any of the Shareholders relating to sales and use, transfer,
documentary, income or other Taxes levied on the transfer of the Purchased
Assets; and
(x) all wages, commissions, vacation, holiday, workers'
compensation and sick pay obligations of Seller with respect to its
employees incurred or accrued through the Effective Time and all bonuses
and fringe benefits as to such employees incurred or accrued through the
Effective Time, and all severance pay obligations of Seller to employees
resulting from Seller's consummation of the transactions contemplated
hereby.
SECTION 3.2. ASSIGNMENT OF CONTRACT RIGHTS. In connection with the sale
and transfer of the Purchased Assets, and upon the terms and subject to the
conditions herein expressed, Seller will assign, or cause to be assigned, to
Buyer, at the Closing, all of Seller's rights, title and interest in and to the
Contracts and the Permits to be assumed by Buyer hereunder.
SECTION 3.3. EXECUTION OF ASSIGNMENT AND ASSUMPTION AGREEMENT. In
connection with the sale and transfer of the Purchased Assets and the assumption
of the
<PAGE>
liabilities to be assumed by Buyer pursuant to Section 3.1 of this Agreement,
Seller and Buyer shall as of the Closing execute and deliver the Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit 3.3.
SECTION 3.4. EXECUTION OF BILL OF SALE. In connection with the sale and
transfer of the Purchased Assets, Seller shall as of the Closing execute and
deliver a Bill of Sale (the "Bill of Sale") in the form attached hereto as
Exhibit 3.4.
SECTION 3.5. AGREEMENT REGARDING CEMENT KILN FEEDSTOCK. Buyer and the
Shareholders shall also enter into an agreement (the "Feedstock Agreement") on
the Closing Date in substantially the form of Exhibit 3.5 hereto.
ARTICLE IV
THE CLOSING
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SECTION 4.1. THE CLOSING. The closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of Alston & Bird LLP, One
Atlantic Center, 1201 West Peachtree Street, Atlanta, Georgia 30309-3424 at
10:00 A.M. local time on the next business day which shall be at least ten days
after all conditions to the Closing have been satisfied or waived, or at such
other place and/or on such other date and at such other time as may be agreed by
Seller and Buyer, but in no event shall the Closing Date be later than December
31, 1997.
SECTION 4.2. CHANGES. Agreements to change or extend times and places set
forth in Section 4.1 hereof may be made by an instrument or instruments in
writing signed by an officer of Buyer and an officer of Seller.
SECTION 4.3. CLOSING DATE; EFFECTIVE TIME. For purposes of this
Agreement, the term "Closing Date" shall mean the date on which the closing
shall occur. For purposes of this Agreement, the term "Effective Time" shall
mean the time of close of business of the facilities of Seller on the Closing
Date.
ARTICLE V
ACTIONS AND DELIVERIES AT OR PRIOR TO THE CLOSING
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SECTION 5.1. DELIVERIES BY SELLER. At the Closing, on the Closing Date,
Seller shall execute and/or deliver, or cause to be executed and/or delivered,
to Buyer, in addition to all other items specified elsewhere in this Agreement,
the following:
(a) such instruments of sale, conveyance, transfer, assignment,
endorsement, direction or authorization as will be sufficient or requisite,
in the opinion of Buyer and its counsel, to vest in Buyer, its successors
and assigns, all
<PAGE>
right, title and interest (which title and interest shall be good and
merchantable except to the extent disclosed herein or in any Exhibit
hereto), in and to the Purchased Assets, free and clear of all
encumbrances, other than the Permitted Encumbrances (as hereinafter
defined), including, but not limited to, limited warranty deeds to the Real
Property and, if applicable, the Additional Property, assignments of
Seller's interests as tenant or lessee with respect to the Leasehold
Property (with any required consents of the landlords thereunder), and the
Title Policy;
(b) such assignments of the Contracts and the Permits referred to in
Sections 1.l(e) and 1.1(f) hereof as will be sufficient or requisite, in
the opinion of Buyer and its counsel, to vest in Buyer all of Seller's
rights, powers and privileges thereunder;
(c) any necessary consents to assignment of the Contracts and the
Permits;
(d) the Assignment and Assumption Agreement and the separate
assignment agreements for the Bellwood Quarry Lease and the Rockmart Quarry
Lease, together with Consents to Assignment executed by the Landlords under
each such Lease;
(e) the Asphalt Supply Agreement;
(f) the Bill of Sale;
(g) the Feedstock Agreement;
(h) the Non-Competition Agreement (as described in Section 7.1
hereof);
(i) the Asphalt Plant Site License (as described in Section 7.5
hereof);
(j) all books, records, files and other documents evidencing title,
relating to the Purchased Assets and the conduct of the Business;
(k) the written opinion of counsel to Seller, dated as of the Closing
Date, as set forth in Section 12.5 below;
(l) the officer's certificate referred to in Section 12.1 below;
(m) resolutions of the Board of Directors and shareholders of Seller,
certified by the Secretary of Seller as of the Closing Date, approving this
Agreement and the transactions contemplated hereby;
<PAGE>
(n) certificates issued by the Secretary of State of Georgia,
certifying that Seller is a corporation in good standing under the laws of
the State of Georgia;
(o) an officer's certificate from a duly-authorized officer of
Seller, setting forth Seller's liability to Fulton County, Georgia for
royalty payments under the Bellwood Quarry Lease as of the Closing Date,
together with a description of the data and methodology used in computing
the same;
(p) Seller shall deliver certificates, to the extent that such
certificates are obtainable, from the applicable revenue authority of the
states in which Seller conducts business stating that no sales, use, or
withholding taxes are due relating to Seller's business or assets; and
(q) such other documents as may be reasonably requested by Buyer.
SECTION 5.2. DELIVERIES BY BUYER. At the Closing, on the Closing Date,
Buyer shall execute and/or deliver to Seller the following:
(a) the Purchase Price;
(b) the Assignment and Assumption Agreement and the separate
assignment agreements for the Bellwood Quarry Lease and the Rockmart Quarry
Lease;
(c) the Asphalt Supply Agreement;
(d) the Feedstock Agreement;
(e) the Non-Competition Agreement;
(f) the Asphalt Plant Site License;
(g) the written opinion of Buyer's legal department, dated as of the
Closing Date, as set forth in Section 13.4 below;
(h) the officer's certificate referred to in Section 13. 1 below;
(i) a certificate issued by the Secretary of State of New Jersey
certifying that Buyer is a corporation in good standing under the laws of
the State of New Jersey;
(j) the sales tax exemption certificates contemplated by Section 2.9;
and
<PAGE>
(k) such other documents as may be reasonably requested by Seller.
SECTION 5.3. PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY. (a) Not less than forty (40) days after the
date hereof, Buyer will obtain a current survey of the Real Property, the
Additional Property and the Leasehold Property, certified by a surveyor
registered under the laws of the State of Georgia (the "Survey"). Buyer shall
bear the cost of the Survey.
(b) In addition, not less than forty (40) days after Seller's execution
and delivery of the extension of the Bellwood Quarry Lease as required by
Section 12.10, Buyer shall obtain a binding and enforceable title commitment
(the "Commitment") from a title company acceptable to Buyer (the "Title
Company"), for the issuance of a title policy of title insurance (the "Title
Policy") to insure title to the Real Property, the Additional Property and
Seller's leasehold interests in the Leasehold Property in Buyer, subject only to
(i) liens for Taxes, assessments, both general and special, and other
governmental charges which are not due and payable as of the Closing Date (other
than Taxes arising out of the transaction contemplated hereby, which shall be
paid by Seller pursuant to Section 2.9); (ii) all building codes and zoning
ordinances and other laws heretofore, now or hereafter enacted, made or issued
by any governmental authority affecting the Business; (iii) all electric, power,
telephone, gas, sanitary sewer, storm sewer, water and other utility lines,
pipelines, service lines and facilities of any nature now located on, over or
under the Real Property, the Leasehold Property, and, if applicable, the
Additional Property, and all licenses, easements, rights-of-way and other
agreements relating thereto; (iv) all existing public and private roads and
streets (whether dedicated or undedicated), and all railroad lines and railroad
rights-of-way affecting the Real Property, the Leasehold Property, and, if
applicable, the Additional Property; and (v) all matters waived by Buyer
pursuant to the provisions of Section 5.3(c)(ii) (collectively, the "Permitted
Encumbrances"). Buyer shall be solely responsible for the cost of the
Commitment.
(c) In the event that the Commitment or the Survey reveal any encumbrance
in or upon any portion of the Real Property, the Additional Property or the
Leasehold Property or any encroachment of an improvement on the Property
necessary to the operation of the Business as presently conducted on any
adjoining property, in either case which is unacceptable to Buyer (collectively,
the "Unacceptable Encumbrances"), with the exception of the Permitted
Encumbrances, Buyer shall, within ten (10) days following receipt of the
Commitment (or the reissuance thereof to incorporate any information revealed by
the Survey), deliver to Seller written notification of each Unacceptable
Encumbrance. Within the same time period, Buyer shall give Seller notice of
Buyer's willingness to purchase the Additional Property, and should Buyer elect
to do so, the Additional Property, if acquired by Seller, shall become part of
the Purchased Assets hereunder. On or before the Closing Date, Seller shall be
required to remove all Unacceptable Encumbrances in the nature of liens,
security titles and security interests which may be removed or released by the
payment of money (collectively, the "Monetary Encumbrances"). If Seller is
unable to cause the removal of all Unacceptable Encumbrances or arrange to
insure or bond over, to the reasonable satisfaction of Buyer,
<PAGE>
such Unacceptable Encumbrances, prior to the scheduled Closing Date, Buyer may
exercise any of the following options:
(i) postpone the closing for an additional period of time as Buyer
may deem appropriate, but no longer than sixty (60) days, in order to allow
removal of any such Unacceptable Encumbrance;
(ii) waive the removal of any such Unacceptable Encumbrance as a
condition to closing, in which event such Unacceptable Encumbrance shall be
deemed an additional Permitted Encumbrance hereunder; or
(iii) terminate this Agreement, in which case Buyer, Seller and the
Shareholders shall have no further obligations hereunder, except those
which expressly survive any such termination;
provided, however, that, notwithstanding the foregoing, Seller's failure to
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cause the removal of the Monetary Encumbrances shall be a material breach of
covenant pursuant to Section 15.1(a)(iii) and, in addition to the options set
forth above, Buyer shall be entitled to exercise the rights and remedies set
forth in Section 15.1. Any encumbrances disclosed by the Commitment and/or the
Survey which are not objected to in writing shall be deemed additional Permitted
Encumbrances hereunder.
(d) Notwithstanding anything in this Section 5.3 to the contrary, Buyer
shall have the right to notify Seller of any title or survey matters (other than
Permitted Encumbrances) which come into existence after the date of the
Commitment with respect to title matters, and the date of the Survey with
respect to survey matters, but prior to the Closing Date, whereupon the rights,
duties and obligations of Buyer and Seller shall be as set forth in this Section
5.3.
(e) In accordance with Section 1445 and Section 897 of the Code and
O.C.G.A. ? 48-7-128, Seller shall provide to Buyer a certificate reasonably
acceptable to Buyer that Seller is not a foreign person thereunder, and a
certificate indicating whether Seller is a resident of the State of Georgia.
Without either of such certificates, Buyer shall withhold as required by law.
(f) At Closing, Buyer shall obtain a Title Policy covering the Real
Property, the Additional Property (if applicable) and the Leasehold Property.
Buyer shall be solely responsible for the cost of obtaining the Title Policy.
The Title Policy shall be issued by the Title Company at its regularly scheduled
rates and shall insure Buyer against loss on account of any defect or
encumbrance, with the exception of the Permitted Encumbrances. The Title Policy
and the legal description of the Real Property, the Additional Property (if
applicable) and the Leasehold Property shall be based upon the Survey. The Title
Policy shall insure Buyer's interests in the Real Property, the Additional
Property (if applicable) and the Leasehold Property in an amount as Buyer, in
its sole discretion, shall deem appropriate.
<PAGE>
SECTION 5.4. PROVISIONS RELATING TO MACHINERY AND EQUIPMENT. Not more
than thirty (30) or less than fifteen (15) days prior to the Closing Date (the
"Inspection Date"), Seller's and Buyer's respective representatives will conduct
an inspection of the Machinery and Equipment to determine if it is in the
operating condition represented in Section 9.5. Within five (5) business days
after the Inspection Date, Buyer shall give Seller a written list of any items
of the Machinery and Equipment which it does not consider to be in such
operating condition. Seller shall put the Machinery and Equipment in such
operating condition and repair to Buyer's reasonable satisfaction. At the
Closing Date, the Seller will deliver the Machinery and Equipment in
substantially the same operating condition as it was on the Inspection Date,
ordinary wear and tear excepted, or as repaired to Buyer's reasonable
satisfaction.
SECTION 5.5. EMINENT DOMAIN. If, after the date hereof and prior to the
Closing, Seller receives notice of the commencement or threatened commencement
of eminent domain or other like proceedings against the Real Property, the
Additional Property (if applicable) or the Leasehold Property, or any portion
thereof, Seller shall immediately notify Buyer, and Buyer shall elect, within
fourteen (14) days from and after such notice, by written notice to Seller,
either (a) not to close the transactions contemplated hereby, in which event
this Agreement shall terminate and be void and of no further force and effect,
except for any obligations hereunder which expressly survive any such
termination; or (b) to close said transactions in accordance with the terms
hereof but subject to such proceedings, in which event the Purchase Price shall
not be reduced, and Seller shall assign to Buyer Seller's rights in any
condemnation award or proceeds. If Buyer does not make such election within the
aforesaid fourteen (14)-day period, Buyer shall be deemed to have elected to
close the transactions contemplated hereby in accordance with clause (b) of this
Section 5.5.
SECTION 5.6. ENVIRONMENTAL MATTERS.
(a) During the one hundred twenty (120)-day period commencing upon the
date of Seller's execution and delivery of the extension of the Bellwood Quarry
Lease as required by Section 12.10, but in any event commencing no later than
October 15, 1997, Buyer shall have the right to cause environmental audits to be
conducted on the Real Property, the Additional Property and/or the Leasehold
Property (each an "Environmental Audit Report") by environmental engineering
consultants retained and paid for by Buyer (the "Environmental Consultants").
Each Environmental Audit Report shall be completed during the one hundred twenty
(120)-day period contemplated by the preceding sentence and shall include (i) a
statement of all Environmental Matters and Environmental Liabilities (as defined
below), if any, identified by the Environmental Consultant at, on, or under the
Real Property, the Additional Property and/or the Leasehold Property to which
such Environmental Audit Report relates, and (ii) a statement describing
conditions at, on or near the Real Property, the Additional Property and/or the
Leasehold Property which may involve Environmental Liabilities and as to which
the Environmental Consultants recommend monitoring, removal, clean-up,
registration or further assessment activities.
<PAGE>
Upon Seller's request, a copy of each such Environmental Audit Report and copies
of all preliminary drafts of any such Environmental Audit Report shall be
furnished promptly to Seller.
(b) Within fifteen (15) days after Buyer's receipt of all Environmental
Audit Reports, Buyer shall (i) notify Seller in writing of any Environmental
Matters and any actual or potential Environmental Liabilities described in such
Environmental Audit Report (collectively, the "Environmental Issues"), and (ii)
notify Seller in writing whether it intends to (A) not close the transactions
contemplated hereby on the Closing Date due to the existence of the
Environmental Issues, in which event this Agreement shall be deemed terminated
by Buyer and all parties hereto shall be released from any further obligations
or liabilities hereunder, except for those which expressly survive any such
termination, (B) not close the transactions on the Closing Date unless Seller
formulates and executes a plan for appropriately addressing Environmental
Liability (but not Environmental Matters) affecting the Purchased Assets, or (C)
close the transactions contemplated hereby on the Closing Date without Seller's
formulation and execution of the plan as contemplated by subparagraph (B), in
which event the transactions shall be closed in accordance with the terms of
this Agreement (without a reduction in the Purchase Price), all breaches of
representations contained in any of the Acquisition Documents (as hereinafter
defined) and caused by the existence of the Environmental Issues shall be deemed
waived by Buyer and Buyer shall rely solely upon the indemnifications provided
in Article XI with regard to Environmental Liability; provided, however, that in
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the event that Buyer exercises the option contained in subparagraph (B) above,
Seller shall be obligated to expend up to $1,000,000.00 to eliminate any
Environmental Liability reflected in the Environmental Audit Reports, and the
date of the Closing shall be extended for up to one hundred eighty (180) days to
allow such remediation, but in the event that the cost of appropriately
addressing such Environmental Liability could reasonably be expected to exceed
$1,000,000.00, Seller may, by written notice to Buyer, terminate this Agreement,
whereupon all parties hereto shall be released from any further obligations or
liabilities hereunder, except for those which expressly survive any such
termination.
(c) As used in this Agreement:
(i) "Environmental Laws" means all laws relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery Act,
-- ---
as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other laws, regulations,
-- ---
orders, ordinances or rules relating to emissions, discharges, releases or
threatened releases of any Hazardous Substance, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of any Hazardous Substance.
<PAGE>
(ii) "Environmental Liability" shall mean any legal liability for, or
any amounts paid for, investigatory costs, clean up costs, governmental
response costs, damages to natural resources or other property, personal
injuries, fines or penalties arising out of, based upon or resulting from
(A) the presence, handling, generation, treatment, storage, disposal,
release or threatened release into the environment of any Hazardous
Substance at any location, or (B) circumstances forming the basis of any
violation of any Environmental Law.
(iii) "Environmental Litigation" means any litigation against Seller,
the Shareholders, the Business or the Purchased Assets (including, without
limitation, notice or other communication, written or oral, by any person
alleging potential liability for investigatory costs, cleanup costs,
private or governmental response or remedial costs, natural resources
damages, property damages, personal injuries, or penalties) arising out of,
based upon, or resulting from (A) any Environmental Matter or (B) any
circumstances or state of facts forming the basis of any liability or
alleged liability under, or violation or alleged violation of, any
Environmental Law.
(iv) "Environmental Matter" means any matter or circumstances related
in any manner whatsoever to (A) the emission, discharge, disposal, release
or threatened release of any Hazardous Substance into the environment, or
(B) the transportation, treatment, storage, recycling or other handling of
any Hazardous Substance, or (C) the placement of structures or materials
into waters of the United States or the State of Georgia, or (D) the
presence of any Hazardous Substance, including, but not limited to,
asbestos, in any building, structure or workplace or on any of the Real
Property, the Additional Property and/or the Leasehold Property, in each
case, as to which no Environmental Liability has yet attached.
(v) "Hazardous Substance" means (A) any hazardous substance,
hazardous material, hazardous waste, regulated substance or toxic substance
(as those terms are defined by any applicable Environmental Laws) and (B)
any chemicals, pollutants, contaminants, petroleum, petroleum products or
oil.
ARTICLE VI
COVENANTS OF BUYER, SELLER AND THE SHAREHOLDERS
-----------------------------------------------
Buyer, Seller and/or each of the Shareholders, as the context may require,
hereby covenants and agrees that, between the date hereof and the Closing Date:
SECTION 6.1. INSPECTION. At all reasonable times, upon Buyer's reasonable
notice to Seller, Seller shall make its books of account and records, and all
market studies and reports, consultant studies and reports (including, but not
limited to, safety, health and environmental reports), agreements, leases,
customer lists, appraisals, valuations, and
<PAGE>
other material or information in the possession of Seller relating to the
Business available for examination and inspection by Buyer and its agents. Buyer
shall have the right, at its expense, to audit the books and records of Seller
pertaining to the Business prior to the Closing Date. No such examination,
inspection or audit by Buyer or its agents shall in any way affect, diminish or
terminate any of the representations, warranties or covenants of Seller herein
expressed. Upon Buyer's reasonable notice to Seller, Seller shall also make
Seller's employees available to Buyer and its agents at all reasonable times.
SECTION 6.2 EXPLORATION. At all reasonable times, Seller shall allow
Buyer the right to conduct all studies, tests, surveys, examinations and other
explorations deemed necessary by Buyer, including but not limited to, the right
to explore, core drill upon, and to remove samples of stone and other aggregates
or of soil, water or air from, the Real Property, the Additional Property and
the Leasehold Property; the right to use any equipment necessary for such
purposes; and the right of ingress and egress to and from the Real Property, the
Additional Property and the Leasehold Property in order to carry out such
purposes; provided, however, that such rights shall be exercised in a manner
-------- -------
designed to minimize to the extent practicable, any inconvenience and damage to
Seller. Buyer shall indemnify and hold Seller harmless from and against any
material property damage (which shall not include reasonable disturbance of
surface vegetation during the course of such exploration) or personal injury
arising out of Buyer's negligent acts or omissions during Buyer's exercise of
its exploration rights hereunder.
SECTION 6.3. CONDUCT OF BUSINESS PRIOR TO CLOSING. From the date hereof
to the Closing Date, and except to the extent that Buyer shall otherwise
consent, Seller and/or Shareholders, as the case may be, shall:
(a) operate the Business in all material respects in the ordinary
course of business or consistent with prudent industry practices;
(b) not sell or otherwise dispose of any real or personal property
or asset that would be a Purchased Asset hereunder, except in the ordinary
course of business; provided that a fixed asset that would be a Purchased
Asset, including, without limitation, the Real Property, the Additional
Property (if applicable) and the Leasehold Property, will not be sold or
otherwise disposed of;
(c) conduct maintenance on the Purchased Assets in the ordinary
course of business and consistent with Seller's practices during the 1995
and 1996 calendar years, and maintain all policies of insurance covering
such Purchased Assets in amounts and on terms substantially equivalent to
those in effect on the date hereof;
(d) comply in all material respects with all laws applicable to the
conduct of Business and the ownership of the Purchased Assets;
<PAGE>
(e) consult with Buyer's designated representative regarding
significant operational decisions affecting the Business; and
(f) not consent to, nor acquiesce in, any termination, surrender or
assignment of, or sublease under, any lease or occupancy agreement, written
or oral, affecting all or any portion of the Real Property, the Additional
Property (if applicable) and the Leasehold Property, as of the date hereof,
nor enter into any amendment or modification of any such lease or occupancy
agreement, nor enter into any new lease or occupancy agreement affecting
all or any portion of the Property without, in any such case, the prior
written consent of Buyer, which consent may be withheld, denied or delayed
in Buyer's sole and absolute discretion, for any reason or no reason. Any
such termination, surrender, assignment, subletting, amendment,
modification or new lease or occupancy agreement effected without Buyer's
prior written consent shall be void ab initio and in no way binding upon
-- ------
Buyer.
SECTION 6.4. CONSENTS; HSR ACT. In each case where any of the Contracts,
the Permits or any other items of the Purchased Assets are to be transferred to
Buyer but are either not transferable or assignable to Buyer, or cannot be
purchased or assumed by Buyer pursuant to this Agreement, without the consent of
another party or parties, Seller will, at its expense, obtain, prior to the
Closing Date, all such consents of such other party or parties to the transfer
of the Contracts, the Permits and such other items of the Purchased Assets to
Buyer pursuant to this Agreement; provided that, in any case where required,
--------
Buyer will expressly assume the future obligations of Seller under the same.
Also, each of Seller and Buyer will proceed diligently and in good faith and use
commercially-reasonable efforts to make all filings with and to give all notices
to governmental or regulatory authorities or any other person required of Seller
or Buyer to consummate the transactions contemplated hereby under Section 7A of
the Clayton Act (Title II of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended) and the rules and regulations promulgated thereunder (the "HSR
Act") and provide such other information and communications to such governmental
or regulatory authorities or other persons as such governmental or regulatory
authorities or other persons may reasonably request in connection therewith and
provide reasonable cooperation to the other in obtaining all consents, approvals
or actions of, making all filings with and giving all notices to governmental or
regulatory authorities. Seller and Buyer shall share the aggregate filing fees
payable pursuant to the HSR Act equally.
SECTION 6.5. EMPLOYEE COMPENSATION, ETC. Except as set forth in Exhibit
6.5, from the date hereof until the Closing Date, Seller will not, without the
prior written consent of Buyer in each instance:
(a) grant or agree to grant any increases in compensation to any
director, officer, employee, consultant or agent except in the ordinary
course of Seller's business and in accordance with past practices; or
<PAGE>
(b) grant or agree to grant any bonus or other extraordinary
compensation or payment to any director, officer, employee, consultant or
agent, except in the ordinary course of Seller's business and in accordance
with past practices.
Any amount paid by, or expended by Seller in violation of this Section 6.5
shall be treated as a reduction of the Purchase Price and shall reduce the
amount to be paid by Buyer to Seller at the closing pursuant to Article II
hereof or be otherwise recoverable by Buyer.
SECTION 6.6. NO PUBLIC ANNOUNCEMENT. Prior to the Closing Date, neither
Seller, nor any of the Shareholders, nor Buyer will make any press release or
public announcement with respect to the transactions contemplated by this
Agreement, except to the extent, if any, required by law (and in no event will
any such press release or public announcement be made without at least twenty-
four (24) hours advance notice thereof to the other parties hereto) or except as
expressly agreed to by Seller and Buyer in writing.
SECTION 6.7. NO THIRD-PARTY NEGOTIATIONS. Neither Seller nor any of the
Shareholders shall, prior to January 1, 1998, agree to sell the Purchased Assets
or any portion thereof or interest therein, or any of the capital stock of
Seller, to any third party or parties, or engage in any negotiations with
respect thereto, unless this Agreement has been validly terminated by Seller or
Buyer; provided, however, that if, after September 30, 1997, Seller presents to
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Buyer a proposed extension of the Bellwood Quarry Lease which has been approved
by Fulton County, Georgia which represents Seller's best effort to satisfy
Buyer's condition to closing with respect thereto, if all other conditions to
closing hereunder to be satisfied or met by Seller have been so satisfied or met
and if Buyer then refuses to close within forty-five (45) days thereafter, this
Agreement shall automatically terminate, none of the parties hereto shall have
any further obligations hereunder except those which expressly survive any such
termination and Seller and/or the Shareholders shall thereafter be free to sell
or negotiate to sell any of the Purchased Assets and/or the stock of Seller.
SECTION 6.8. SUPPLEMENTAL DISCLOSURE. Seller and each of the Shareholders
shall have the continuing obligations, up to and including the Closing Date, to
give Buyer prompt written notice of any material liability of any nature,
whether accrued, absolute, contingent or otherwise, which attaches to the
Purchased Assets after the date of this Agreement and is not otherwise disclosed
herein, and to supplement promptly or amend the Exhibits with respect to any
matter hereafter arising or discovered which, if existing and known at the date
of this Agreement, would have been required to be set forth or listed in the
Exhibits; provided, however, that Buyer may unilaterally extend the Closing Date
-------- -------
if necessary to allow Buyer ten (10) business days to review such supplements
prior to the Closing Date.
SECTION 6.9. DISCHARGE OF LIENS AND ENCUMBRANCES. All liens, claims,
charges, security interests, pledges, assignments, or encumbrances relating to
the Purchased Assets
<PAGE>
that are Monetary and not Permitted Encumbrances shall be satisfied, terminated,
discharged or released by Seller or the Shareholders, as the case may be, on or
prior to the Closing Date, and evidence reasonably satisfactory to Buyer and its
counsel of such satisfaction, termination, discharge or release shall be
delivered to Buyer at or prior to the Closing.
ARTICLE VII
POST-CLOSING COVENANTS OF BUYER, SELLER AND THE SHAREHOLDERS
------------------------------------------------------------
Buyer, Seller and/or each of the Shareholders, as the context may require,
hereby covenants and agrees as follows:
SECTION 7.1. NON-COMPETITION AGREEMENT. Buyer, Seller and the
Shareholders shall, as of the Closing Date, execute and deliver a Non-
Competition Agreement in substantially the form as attached hereto as Exhibit
7.1, which agreement shall provide, among other terms, that Seller and the
Shareholders will not compete with Buyer for a period of five (5) years
following the Closing Date within the geographic areas served by the Business.
SECTION 7.2. FURTHER ASSURANCES. Upon the reasonable request of Buyer at
any time and from time to time after the Closing Date, Seller and each of the
Shareholders will forthwith, at its own expense, execute and deliver such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and do all things necessary or proper, as Buyer or its counsel
may reasonably request, which are needed to vest, perfect or confirm, of record
or otherwise, the right, title and interest of Seller, its successors and
assigns, in and to the Purchased Assets and the assignment to, and assumption by
Buyer of the Contracts and the Permits to be assigned to, and assumed by Buyer
pursuant to Section 3.1 hereof or otherwise to carry out the purpose of this
Agreement.
SECTION 7.3. CONFIDENTIALITY. Seller and each of the Shareholders hereby
agrees that, after the Closing Date, it will treat as confidential and will not
use or disclose to others or permit any of their affiliates to use or disclose
to others, any documents, reports or other information concerning the Purchased
Assets, or the Business theretofore conducted by Seller, or concerning Buyer, or
the business, operations or affairs thereof.
SECTION 7.4. AVAILABILITY OF EMPLOYEES AND THE SHAREHOLDERS. Each of
Buyer, Seller and each of the Shareholders, respectively, will, after the
Closing Date, cooperate fully in providing to the others or their designees
information necessary to prosecute or defend any third-party litigation relating
to operation of the Business, as well as endeavor to provide, to the extent
reasonably available, the services of employees and agents of each of Buyer,
Seller and each of the Shareholders, respectively, to participate in the
preparation and prosecution or defense of such litigation, all at no charge to
the party
<PAGE>
requesting the same other than direct reasonable out-of-pocket expenses, all of
which such expenses shall be charged to such party.
SECTION 7.5. ASPHALT PLANT SITE LICENSE. Buyer and Seller shall, as of
the Closing Date, execute and deliver an asphalt plant site license (the
"Asphalt Plant Site License") in substantially the form as attached as Exhibit
7.5, which shall provide, among other terms, that Contracting may occupy the
asphalt plant currently located at the Rockmart Quarry for a period of one (1)
year and thereafter from year to year until terminated by Buyer or Seller.
ARTICLE VIII
[Intentionally omitted.]
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
-------------------------------------------------------------
Seller and each of the Shareholders, as the context may require, represents
and warrants to and covenants with Buyer and its successors and assigns (which
warranties, representations and covenants, together with the other warranties,
representations and covenants of Seller and the Shareholders set forth in this
Agreement or contained in any exhibit hereto, or in any certificate or other
document required to be delivered to Buyer by Seller or any of the Shareholders
pursuant to this Agreement, shall survive the closing hereof) as follows:
SECTION 9.1. ORGANIZATION, ETC. Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Georgia and
has the corporate power and all licenses, permits, authorizations and approvals
(governmental, corporate or otherwise) necessary to own and operate its
properties and to carry on the Business as it is now being conducted. Seller is
qualified to do business as a foreign corporation in each state in which the
nature of the property owned, used or operated by Seller, or the nature of the
activities conducted by Seller, requires such qualification, except where the
failure to so qualify would not have a material adverse effect on Seller or the
Business.
SECTION 9.2. AUTHORITY. Seller and each of the Shareholders has all
requisite power and authority to enter into this Agreement and the agreements to
be executed by Seller and each such Shareholder in connection herewith
(collectively, this Agreement and such other agreements and the agreements
contemplated by this Agreement to be executed by the such parties shall be
referred to hereinafter as the "Acquisition Documents"), and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by Seller and each of the Shareholders of each of the Acquisition
Documents to which it is a party has been duly and validly authorized and
approved by all necessary action on the part of Seller and each such
Shareholder. Each of the Acquisition
<PAGE>
Documents to which Seller and each such Shareholder is a party is the legal,
valid, and binding obligation of Seller and each such Shareholder, enforceable
against him, her or it in accordance with its terms, except as enforceability
may be limited by applicable equitable principles (whether applied in a
proceeding at law or in equity) or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, to the
exercise of judicial discretion in accordance with general equitable principles
and to equitable defenses that may be applied to the remedy of specific
performance. The execution and delivery by Seller and each of the Shareholders
of each of the Acquisition Documents to which he, she or it is a party and the
consummation by Seller and each such Shareholder of the transactions
contemplated thereby will not (a) violate the Articles of Incorporation or
Bylaws of Seller, or (b) violate any provisions of law or any order of any court
or any governmental entity to which Seller is subject, or by which Seller, such
Shareholder or the Purchased Assets may be bound.
SECTION 9.3. APPROVAL. Seller, at the time of the Closing, will have
taken all requisite corporate action to approve this Agreement and the
transactions contemplated by this Agreement, and there shall have at the time of
closing been delivered to Buyer certified copies of the resolutions duly adopted
in connection therewith.
SECTION 9.4. GOVERNMENTAL APPROVAL AND CONSENTS.
(a) Seller has obtained, or will obtain by the Closing Date, the Permits,
which are all of the governmental or other approvals, permits, licenses, orders
and authorizations required for the lawful operation of the Business and the
Purchased Assets as conducted on the date of this Agreement. Exhibit 9.4
contains a true and correct list of the Permits.
(b) Except with respect to the HSR Act compliance contemplated by Section
6.4, no consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority is required in
connection with the execution, delivery, and performance of this Agreement by
Seller or the consummation by Seller of the transactions contemplated hereby.
SECTION 9.5. MACHINERY AND EQUIPMENT. Each item of the Machinery and
Equipment that is currently used or useful by Seller in connection with the
Business is in satisfactory operating condition and repair (normal wear and tear
in relation to age excepted), is reasonably fit for the purposes for which it is
presently used, and none of the Machinery and Equipment is in need of
maintenance or repairs, except for maintenance and repairs, the cost of which
will not vary materially from Seller's historic patterns during the 1995 and
1996 calendar years. Exhibit 1.1(a) contains a true and complete list and a
description of all of the Machinery and Equipment.
SECTION 9.6. PROPERTY AND IMPROVEMENTS. With respect to the Real
Property, the Additional Property (if applicable) and the Leasehold Property:
<PAGE>
(a) to Seller's knowledge, no defect or condition of the Property or
interest of any third party exists which impairs or could impair the
current or continued use of the Property for the conduct of the Business in
any material respect;
(b) the Property, as currently used by Seller, is not in material
violation of any applicable foreign, federal, state or local statute,
ordinance, order, requirement, decree, law, rule or regulation (including
without limitation, building or zoning laws, rules or regulations and
excluding, specifically, environmental laws, rules or regulations)
affecting the Property, and all material licenses, permits and approvals
required in connection therewith have been obtained by Seller and are in
full force and effect;
(c) no actual notice of any violation, possible violation or
threatened violation of any applicable foreign, federal, state or local
statute, law, ordinance, rule, regulation, order, decree or requirement, or
of any covenant, condition, restriction or easement affecting the Property
or with respect to the use or occupancy of the Property, has been given to
Seller by any governmental authority having jurisdiction over the Property
or by any other person entitled to enforce the same;
(d) there is not: (i) to Seller's knowledge, any intended public
improvement which may involve any charge being levied or assessed or which
may result in the creation of any lien upon the Property, (ii) to Seller's
knowledge, any intended or proposed foreign, federal, state or local
statute, ordinance, order, requirement, decree, law or regulation
(including, but not limited to, zoning changes) which may adversely affect
the current use of the Property, (iii) any suit, action, claim or legal,
administrative, arbitration or other proceeding or governmental
investigation pending or, to Seller's knowledge, threatened or contemplated
against or affecting the Property, or (iv) any pending or, to Seller's
knowledge, threatened condemnation or similar proceeding affecting the
Property;
(e) to Seller's knowledge, there are no encroachments onto the
Property of any improvements on any adjoining property which materially
interfere with the conduct of the Business as presently conducted, and no
improvement on the Property necessary to the operation of the Business as
presently conducted encroaches on any adjoining property in any material
way;
(f) Seller is currently materially complying with all covenants,
conditions, restrictions, easements and similar matters of record affecting
the Property, and, to Seller's knowledge, there are no unrecorded private
restrictive covenants affecting the Property;
(g) Except as set forth on Exhibit 1.1(e), there are no leases under
which Seller is the lessor or landlord relating to any of the Property (or
any portion
<PAGE>
thereof). Except for Permitted Encumbrances and except as set forth on
Exhibit 1.1(d)(iii), Seller has not entered into any other agreements,
written or oral, granting any other person or entity any rights with
respect to any of the Property; and
(h) access to each parcel of the Property is provided by publicly-
dedicated and maintained streets and roads contiguous to such properties.
SECTION 9.7. GOOD TITLE, ETC. On the Closing Date, Seller will have good
and merchantable title to all of the Purchased Assets other than the Property,
subject to no mortgages, pledges, liens, encumbrances or other charges other
than the Permitted Encumbrances. On the Closing Date, the Purchased Assets to
be conveyed to Buyer shall be free of all mortgages, pledges, liens,
encumbrances or charges of any kind other than the Permitted Encumbrances.
SECTION 9.8. NO VIOLATION OF LAW; NO LITIGATION. Except as disclosed on
Exhibit 9.8, and not including Environmental Matters (which are covered
elsewhere in this Agreement), Seller is not in material violation of any law,
rule, regulation or order of any federal, state, local or foreign governmental
department, agency or instrumentality which is applicable to Seller and/or the
Purchased Assets. Except as disclosed on Exhibit 9.8, and not including
Environmental Matters (which are covered elsewhere in this Agreement), there is
no litigation at law or in equity, no arbitration proceeding and no proceeding
before any commission or other administrative or regulatory authority pending,
or to the knowledge of Seller, threatened against or affecting the Purchased
Assets or the Business or Seller's right to carry on such businesses as
conducted on the date hereof. Seller is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality. Except as disclosed on Exhibit 9.8, and
not including Environmental Matters (which are covered elsewhere in this
Agreement), Seller is not presently engaged in any legal action to recover
monies due to it or damages sustained by it.
SECTION 9.9. NO ADVERSE CHANGE. Except as otherwise disclosed in this
Agreement, since December 31, 1996, there has been no material adverse change in
the financial condition, assets, liabilities, business (including relations with
employees, dealers, distributors, suppliers and customers) or property of
Seller, the prospects of the Business or the Purchased Assets, and Seller has no
knowledge of any information that any such material adverse change may
reasonably be expected to occur in the foreseeable future.
SECTION 9.10. NO DISPOSITION OF ASSETS, ETC. With respect to the
Business, since December 31, 1996:
(a) Seller has not sold, and will not sell or otherwise dispose of,
without the prior written consent of Buyer, any of the assets identified as
the Purchased Assets hereunder;
<PAGE>
(b) Seller has conducted, and will, pending the Closing, conduct the
Business only in the ordinary course of its businesses;
(c) Seller has not made, and will not make, pending the Closing, any
increase in the compensation due to any employee of Seller, nor has it
terminated, nor will it terminate any employees, without the prior written
consent of Buyer, except in the ordinary course of Seller's business and in
accordance with past practices; and
(d) Seller has not, and will not, without the prior written approval
of an officer of Buyer, enter into any contract or make any commitment or
otherwise purchase any item which in accordance with generally accepted
accounting principles would be required to be capitalized on its balance
sheet, except in the ordinary course of Seller's business and in accordance
with past practices.
SECTION 9.11. EMPLOYEES, COMPENSATION, ETC. Exhibit 9.11 contains a
correct and complete list of all employees employed by Seller in the Business as
of the date of this Agreement, their current remuneration, and a general
description of all perquisites and fringe benefits they receive or are eligible
to receive. Except as set forth on Exhibit 9.11 hereto, Seller is not a party
to any agreement relating to the terms and conditions of employment, including
compensation and other benefits, of present and former employees (including
retirees and disabled employees), sales personnel, consultants and other agents
of Seller, and the dependents or beneficiaries of any such persons, either now
or formerly involved in the Business, including, without limitation, collective
bargaining agreements and pension, retirement, bonus, stock option, profit-
sharing, health, disability, life insurance, education or other similar employee
benefit plans or arrangements (whether or not subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and whether or not currently
or previously maintained by Seller) (each an "Employee Benefit Plan"). None of
the agreements listed on Exhibit 9.11 hereto shall be breached by Seller's
execution, delivery and performance of this Agreement and the transactions
contemplated hereby. No such agreements shall:
(a) require Buyer to recognize, bargain, negotiate or deal with any
labor union or to assume any employment, compensation, fringe benefit,
pension, profit-sharing or deferred compensation plan or other Employee
Benefit Plan with respect to any employee or former employee (including,
without limitation, retirees and disabled employees) or the dependent or
beneficiary of any employee or former employee of Seller; or
(b) obligate Buyer in any way to pay for the cost of any post-
retirement health care or life insurance or other similar benefits.
There are no approved, actual or, to the knowledge of Seller, threatened claims
for worker's compensation or any other employment related claim by any present
or former employees, sales personnel, consultants or other agents of Seller
arising out of their
<PAGE>
employment with Seller that could result in any liability of Buyer, whether or
not any such employee, salesman, consultant or other agent becomes an employee
of Buyer.
Neither Seller nor any member of a group of trades or businesses under common
control (as defined in Internal Revenue Code Section 414 or ERISA Sections
4001(a)(14) and 4001(b)(1)) with Seller (each an "ERISA Affiliate") have at any
time sponsored, contributed to, or been obligated under Title I or IV of ERISA
to contribute to a "defined benefit plan" (as defined in ERISA Section 3(35)).
Neither Seller nor any ERISA Affiliate have had an "obligation to contribute"
(as defined in ERISA Section 4212) to a "multiemployer plan" (as defined in
ERISA Sections 4001(a)(3) and 3(37)(A)) on or after September 26, 1980.
Seller shall be responsible for complying with the requirements of Internal
Revenue Code Section 4980B and Part 6 of Title I of ERISA for its employees
(including those employees who are hired by Buyer on or after the Closing) and
their "qualified beneficiaries" whose "qualifying event" (as such terms are
defined in Internal Revenue Code Section 4980B) occurs on or prior to the
Closing.
SECTION 9.12. LABOR RELATIONS. Seller is in compliance with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and has not engaged in any unfair
labor or unfair employment practice. There is no, and during the past two (2)
years, there has not been, any (a) unlawful employment practice discrimination
charge relating to the Business before the Equal Employment Opportunity
Commission ("EEOC") or any EEOC recognized state "referral agency" or any
foreign governmental authority; (b) unfair labor practice charge or complaint
against Seller before the National Labor Relations Board ("NLRB") or any foreign
governmental authority relating to the Business or (c) labor strike, dispute,
picketing, lockout, union organizing activity, union jurisdictional dispute,
organized slowdown, work interruption or work stoppage or, to the knowledge of
Seller, threatened against or involving or affecting the Business. No NLRB
representation question exists respecting any employees of the Business. No
grievance or arbitration proceeding relating to the Business is pending and no
written claim therefore exists. There is no collective bargaining agreement
relating to the Business which is binding upon Seller.
SECTION 9.13. EMPLOYMENT CLAIMS. Except as set forth in Exhibit 9.13,
there are presently no workers compensation claims or employment discrimination
claims pending against Seller with respect to employees of the Business. To
Seller's knowledge, except as described on Exhibit 9.13, with respect to Seller,
there are no pending or threatened claims, investigations, charges, citations,
hearings, consent decrees, or litigation concerning wages, compensation,
bonuses, commissions, awards, or payroll deductions; equal employment or human
rights violations regarding race, color, religion, sex, national origin, age,
handicap, veteran's status, marital status, disability, or any other recognized
class, status, or attribute under any federal, state, local or foreign equal
employment law prohibiting discrimination; representation petitions or unfair
labor practices; grievances or
<PAGE>
arbitrations pursuant to current or expired collective bargaining agreements;
occupational safety and health; workers' compensation; wrongful termination,
negligent hiring, invasion of privacy or defamation; immigration or any other
claim based on the employment relationship or termination of the employment
relationship (collectively, "Labor Claims").
SECTION 9.14. CONTRACTS AND COMMITMENTS. Exhibits 1.1(e) and 9.11
together contain a true and complete list and brief description of the
Contracts, which constitute all written or oral contracts, agreements and other
instruments to which Seller is now a party. Seller has in all respects
performed all the obligations required to be performed by it to date and is not
in default or alleged to be in default in any respect under any of the
Contracts, and there exists no event, condition or occurrence which after
notices or lapse of time, or both, would constitute such a default by Seller of
any of the Contracts. Each of the Contracts is in full force and effect in
accordance with its terms. Seller has furnished or made available to Buyer true
and correct copies of all documents described in Exhibits 1.1(d)(iii) and 9.11.
SECTION 9.15. FINANCIAL STATEMENTS. (a) Except as disclosed on the
Accountants' Report attached hereto as Exhibit 9.15, the financial statements of
Seller previously delivered by Seller to Buyer present fairly the financial
position of Seller as of the dates of such financial statements, and cash flow,
the results of the operations, changes in retained earnings and changes in
financial position of Seller for periods then ended, respectively.
(b) Seller has not used any improper accounting practice for the purpose of
incorrectly reflecting on such financial statements or in its books of account,
or for the purpose of not reflecting on such financial statements or in its
books of account, any of its assets, liabilities, revenues or expenses.
SECTION 9.16. NO UNDISCLOSED LIABILITIES. As of the date hereof, Seller
does not have, and as of the Closing Date Seller will not have, any material
liability of any nature, whether accrued, absolute, contingent or otherwise,
relating to the Purchased Assets and not disclosed in this Agreement, the
Exhibits hereto or any certificate, document, instrument, list or information
required to be furnished by Seller pursuant to this Agreement.
SECTION 9.17. TAX MATTERS. For all periods prior to the date of this
Agreement and through the Closing Date:
(a) all federal, state, local and foreign tax returns, or other fiscal
contribution returns, and tax reports required to be filed by Seller have
been, or will be, timely filed with the appropriate governmental agencies
in all jurisdictions in which such returns and reports are required to be
filed and all of the foregoing are true, correct and complete;
(b) all federal, state, local and foreign income, value-added,
profits, franchise, manufacturer's excise, sales, use, occupation,
property, excise, highway
<PAGE>
use and other taxes or other fiscal contributions (including interest,
surcharge, fines and penalties) due from Seller have been, or will be,
fully paid or adequate provisions made therefor;
(c) no issues have been raised or proposed with respect to any tax
return or other fiscal contribution returns of Seller;
(d) the Purchased Assets will be transferred free and clear of all
liens, security interests and encumbrances securing any taxes (other than
liens for real estate taxes not yet due and payable), including all
penalties and interest assessed with respect thereto; and
(e) each parcel of the Property is a separate and complete tax parcel
for real estate tax purposes.
SECTION 9.18. EMPLOYEE TAXES, ETC. With respect to the Business of
Seller:
(a) proper and accurate amounts have been, or will be, withheld by
Seller from its employees for all periods prior to the Closing Date in
compliance with the tax withholding provisions of applicable federal,
foreign, state and local laws;
(b) proper and accurate federal, foreign, state and local returns have
been, or will be, filed by Seller for all periods for which returns were
due with respect to employee income tax withholding, social security and
unemployment taxes, and the amounts shown thereon to be due and payable
have been paid in full or adequate provisions therefor included in Seller's
financial statements; and
(c) to the knowledge of Seller, hours worked by and payments made to
the respective employees of Seller have not been in violation of the Fair
Labor Standards Act or any other applicable laws of the United States, any
state, or any other jurisdiction dealing with such matters.
SECTION 9.19. INSURANCE. With respect to the Business, Seller has in
force all policies of insurance described in Exhibit 9.19, which policies
provide adequate insurance with respect to all risks normally insured against by
companies similarly situated, and it will have in force on the Closing Date
policies of insurance of the same character and coverage as those so described
in Exhibit 9.19. Seller will promptly notify Buyer in writing of any changes in
such insurance coverage occurring prior to the Closing. Seller is to be
reimbursed by Buyer at the Closing for any insurance premiums paid by Seller and
referable to periods following the Closing. During the 1995 and 1996 calendar
years, Seller has not been refused any insurance with respect to the Purchased
Assets by any insurance carrier to which it has applied for insurance or with
which it has carried insurance. There are no outstanding requirements or
recommendations by any current insurer or insurance underwriter with respect to
the Purchased Assets which require or
<PAGE>
recommend any repairs or other work to be done with respect to any of the
Purchased Assets. Exhibit 9.19 contains a true and correct list of each
insurance policy of Seller related to the Purchased Assets.
SECTION 9.20. OWNERSHIP OF ESSENTIAL ASSETS; PRESENCE OF ESSENTIAL ASSETS.
With respect to the Business, there is no material asset used by Seller in the
conduct of the Business or without which the Business could not be conducted as
presently conducted which is not either owned by Seller or leased to Seller, or
over which Seller has a beneficial interest or a legal right of use, under any
of the Contracts, except as otherwise disclosed in this Agreement. All such
assets owned or used by Seller in the Business are encompassed within the
Purchased Assets, and are on the date hereof, and on the Closing Date will be,
in substantially the same operating condition and repair as on the Inspection
Date, ordinary wear and tear excepted or, if not in such operating condition on
the Inspection Date, then repaired to Buyer's reasonable satisfaction.
SECTION 9.21. ENVIRONMENTAL LAWS AND REGULATIONS. Except as set forth in
Exhibit 9.21:
(a) There is no Environmental Litigation (or, to Seller's knowledge,
any litigation against any person whose liability, or any portion thereof,
for Environmental Matters or under any Environmental Laws Seller or any of
the Shareholders has or may have retained or assumed contractually or by
operation of law) pending or, to Seller's knowledge, threatened with
respect to (i) the ownership, use, condition or operation of the Business
or the Purchased Assets, or (ii) any violation or alleged violation of or
liability or alleged liability under any Environmental Law or any order
related to Environmental Matters. To Seller's knowledge, there have been
no violations of any (A) Environmental Law, or (B) order related to
Environmental Matters, with respect to the ownership, use, condition or
operation of the Business or the Purchased Assets which would have a
material adverse effect on the Business or the Purchased Assets. Except as
disclosed in Exhibit 9.21 to Seller's knowledge, there are no existing
violations of any (I) Environmental Law, or (II) order related to
Environmental Matters, with respect to the ownership, use, condition or
operation of the Business or the Purchased Assets. To Seller's knowledge,
there have been no past actions, activities, circumstances, conditions,
events or incidents, including, without limitation, any Environmental
Matter, which would likely form the basis of any (a) Environmental
Litigation against Seller or any of the Shareholders, or (b) litigation
against any person whose liability (or any portion thereof) for
Environmental Matters or under any Environmental Laws Seller has retained
or assumed contractually or by operation of law which would have a material
adverse effect on the Business or the Purchased Assets. Except as
disclosed in Exhibit 9.21, to Seller's knowledge, there are no present
actions, activities, circumstances, conditions, events or incidents,
including, without limitation, any Environmental Matter, which would likely
form the basis of any (1) Environmental Litigation against Seller or any of
the Shareholders, or (2) litigation against any person
<PAGE>
whose liability (or any portion thereof) for Environmental Matters or under
any Environmental Laws Seller has retained or assumed contractually or by
operation of law. Except where any such use complied with applicable
statutes, regulations, ordinances or permits, Seller has not used any of
the Purchased Assets or any part thereof for the handling, treatment,
storage, or disposal of any Hazardous Substances. The disclosure of facts
set forth in Exhibit 9.21 shall not relieve Seller or any of the
Shareholders of any of their obligations under this Agreement, specifically
including, without limitation, the obligation to indemnify Buyer as set
forth in Article XI hereof.
(b) To Seller's knowledge, except as allowed by applicable
environmental statutes, regulations, ordinances or permits, no material
release, discharge, spillage or disposal of any Hazardous Substances has
occurred or is occurring at any of the Property or any part thereof while
or before the Property was owned, leased, operated, or managed, directly or
indirectly, by Seller.
(c) To Seller's knowledge, except as allowed by applicable
environmental statutes, regulations, ordinances or permits, no soil or
water in, under or adjacent to any portion of the Property has been
contaminated by any Hazardous Substance while or before such assets or
premises were owned, leased, operated or managed, directly or indirectly,
by Seller except where any such contamination is not material.
(d) All waste containing any Hazardous Substances generated, used,
handled, stored, treated or disposed of (directly or indirectly) by Seller
has been released or disposed of in material compliance with all applicable
reporting requirements under any Environmental Laws and there is no pending
Environmental Litigation with respect to any such release or disposal.
(e) To Seller's knowledge, all underground tanks and other underground
storage facilities located at any portion of the Property are listed,
together with the capacity and contents of each such tank or facility, in
Exhibit 9.21. To Seller's knowledge, none of such underground tanks or
facilities is leaking or has leaked.
(f) To Seller's knowledge, all hazardous waste has been removed from
the Property.
(g) Seller has complied in all material respects with all applicable
reporting requirements under all Environmental Laws concerning the disposal
or release of Hazardous Substances and Seller has not made any such reports
concerning any portion of the Property or concerning the operations or
activities of Seller.
<PAGE>
(h) To Seller's knowledge, no portion of the Property contains any
friable asbestos-containing materials.
(i) Without limiting the generality of any of the foregoing, (i) all
on-site and off-site locations where Seller has stored, disposed of or
arranged for the disposal of Hazardous Substances where the storage or
disposal of such Hazardous Substances is regulated by Environmental Law are
identified in Exhibit 9.21, and (ii) to Seller's knowledge, no
polychlorinated biphenyls (PCBs) are used or stored on or in any portion of
the Property.
(j) Exhibit 9.21 contains a correct and complete list of all
environmental site assessments and other studies obtained by Seller
relating to the investigation of the possibility of the presence or
existence of any Environmental Matter with respect to Seller, the Business
or the Purchased Assets, and Seller has previously delivered to Buyer, or
provided Buyer an opportunity to review, a correct and complete copy of
each such assessment and study.
SECTION 9.22. NO UNTRUE STATEMENTS. Neither this Agreement, nor any
certificate, exhibit, or other instrument or list or information required to be
furnished by Seller pursuant to this Agreement, contains, or will contain, any
untrue statement of a material fact or omits, or will omit, to state any
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 9.23. RELIANCE. All documents, records and other information
attached as Exhibits hereto have been prepared by Seller and furnished to Buyer
or Buyer's representatives by Seller, and fairly, accurately and completely
present (in a manner consistent with prior periods) the matters purported to be
presented therein. Seller acknowledges that such documents were furnished at
the request of Buyer or Buyer's representatives, and that such documents,
records and other information have been relied upon by Buyer or Buyer's
representatives (to the extent of representations and warranties of Seller set
forth in the preceding sentence) as an inducement to the execution and delivery
of this Agreement.
SECTION 9.24. CONFIDENTIAL MATERIAL. Seller will deliver to Buyer on the
Closing Date copies owned or used by Seller of all documents and other materials
(which shall have been previously shared with Buyer) which Seller reasonably
believes to be both confidential and reasonably appropriate for the operation of
the Business conducted by Seller through the use of the Purchased Assets.
SECTION 9.25. NO UNDUE INFLUENCE. Seller has not, directly or indirectly,
made any payments to or entered into any transactions with any person as an
inducement to such person (or to induce such person to influence another person)
to take action deemed to be to the advantage of Seller in such person's official
position with a governmental authority, or in such person's position with any
other business entity, nor has Seller directly or
<PAGE>
indirectly made any other payment to any person or entity that was contrary to
any law or regulation of any such governmental authority.
SECTION 9.26. NO MATERIALLY ADVERSE CONTRACTS. Seller has provided to
Buyer true, correct and complete copies of all material contracts related to the
Business and the Purchased Assets which are to be assumed by Buyer pursuant to
this Agreement and might materially and adversely affect the properties or
prospects of or the conduct after the closing by Buyer of the Business. No
commitments for the purchase of raw materials to be assumed by Buyer are in
excess of normal requirements of the Business or at an excessive price.
SECTION 9.27. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each of the
Shareholders represents and warrants to Buyer as of the date hereof and as of
the Closing Date as follows:
(a) Such Shareholder owns of record and has sole voting power over the
shares of capital stock of Seller set forth by such Shareholder's name on
Exhibit A. Such Shareholder has authorized and approved the performance by
Seller of its obligations under this Agreement. All of the information
regarding such Shareholder set forth on Exhibit A is true and accurate.
(b) Such Shareholder has the right, power, legal capacity and
authority to enter into and perform such Shareholder's obligations under
this Agreement. This Agreement is a valid obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms.
(c) Such Shareholder has carefully read this Agreement and, to the
extent he, she or it believes necessary, has discussed the representations,
warranties and agreements which he, she or it makes by signing this
Agreement with his, her or its counsel and counsel for the Buyer.
(d) Such Shareholder is acquiring the Stock Consideration for his, her
or its own account, with the intention of holding the Stock Consideration
for investment, with no present intention of dividing or allowing others to
participate in this investment or of reselling or otherwise participating,
directly or indirectly, in a distribution of the Stock Consideration.
(e) Such Shareholder is familiar with the business in which Buyer will
be engaged, and based upon his knowledge and experience in financial and
business matters, such Shareholder is familiar with the investments of the
sort which he is undertaking herein; Shareholder is fully aware of the
problems and risks involved in making an investment of this type; and is
capable of evaluating the merits and risks of this transaction.
<PAGE>
(f) This investment is in accord with the nature and size of such
Shareholder's present investments and net worth, and such Shareholder is
financially able to bear the economic risk of this investment, including
the ability to afford holding the Stock Consideration for an indefinite
period or to afford a complete loss of this investment.
(g) Such Shareholder has been represented by such counsel and
advisers, each of whom has been previously selected by such Shareholder, as
such Shareholder has found necessary to consult concerning this Agreement
and the Stock Consideration to be issued pursuant to this Agreement. Such
Shareholder and his, her or its counsel and advisers have been provided
with such financial and other information concerning Buyer (including all
reports, proxy statements and registration statements filed by Buyer with
the Securities and Exchange Commission on or after January 1, 1997, and
Buyer's annual reports to shareholders and filings on Form 10-K for Buyer's
fiscal years ended December 31, 1995 and December 31, 1996) as such persons
have deemed relevant with respect to such Shareholder's investment decision
relating to the Stock Consideration issued hereunder (the "Purchaser
Disclosure Information"). He, she or it understands that this Agreement,
along with all of the Purchaser Disclosure Information, is an integral part
of the Purchaser Disclosure Information, and he, she or it has read this
Agreement (including its Exhibits and Schedules) and understands the
consequences of the transactions contemplated hereby. He, she or it has
had a reasonable opportunity to discuss Buyer's business, management and
financial affairs with Buyer's management, and he, she or it has received
satisfactory responses from management of Buyer to such inquiries.
SECTION 9.28. BROKERS AND FINDERS. Neither Seller, nor any affiliate of
Seller, nor any of the Shareholders has incurred any obligation or liability to
any party for any brokerage fees, agent's commissions or finder's fees in
connection with the transactions contemplated hereby.
SECTION 9.29. INTELLECTUAL PROPERTY. To Seller's knowledge:
(a) Exhibit 9.29 contains a correct and complete list of all
registered patents, trademarks, trade names and copyrights owned or used by
Seller, containing a brief description of each such item of Intellectual
Property and the nature of Seller's interest therein. The Purchased Assets
include and, upon the purchase of those assets, Buyer will own or have the
right to use all patents, designs, art work, designs-in-progress,
formulations, know-how, inventions, trademarks, trade names, trade styles,
service marks, copyrights, manufacturing processes, and confidential or
proprietary information necessary for the conduct of the Business as
presently conducted, except for intellectual property which relates solely
to the Retained Assets.
<PAGE>
(b) No claim is pending or, to Seller's knowledge, threatened, and
Seller has not received notice that the conduct of the Business (including,
without limitation, Seller's use of any Intellectual Property) infringes
upon or conflicts with any rights claimed therein by any third party, nor
to Seller's knowledge is there any unasserted claim the assertion of which
is probable. No use by Seller of any Intellectual Property licensed to it
violates the terms of any agreement pursuant to which it is licensed. No
claim is pending, or, to Seller's knowledge, threatened, which alleges that
any Intellectual Property owned or licensed by Seller or which Seller
otherwise has the right to use is invalid or unenforceable by Seller, nor
to Seller's knowledge is there any such claim that is unasserted, but the
assertion of which is probable. Except as set forth on Exhibit 9.29,
Seller does not manufacture products which are the subject of patents,
patent applications, copyrights, copyright applications, trademarks,
trademark applications, trade styles, service marks, or trade secrets owned
by or licensed from third parties. Except as shown on Exhibit 9.29, no
royalties or fees are payable by Seller to anyone for use of the
Intellectual Property. True, correct, and complete copies of all
agreements pursuant to which Seller has any license or right to use any
Intellectual Property have been delivered to Buyer or made available for
Buyer to review. Seller has not received any notice that the manufacture,
use, or sale by Seller of its products, or any component or part thereof,
nor any manufacturing operation employed by Seller, violates or infringes
upon any claims of any United States or foreign patent or patent
application owned or held by any third party, nor to Seller's knowledge is
there any unasserted claim the assertion of which is probable.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to Seller and the Shareholders as follows:
SECTION 10.1. ORGANIZATION, ETC. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey.
SECTION 10.2. AUTHORITY. Buyer has all requisite power and authority to
enter into this Agreement and the other Acquisition Documents to be executed by
Buyer in connection herewith and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by Buyer of each of
the Acquisition Documents to which it is a party has been duly and validly
authorized and approved by all necessary action on the part of Buyer. Each of
the Acquisition Documents to which Buyer is a party is the legal, valid, and
binding obligation of Buyer, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable equitable
principles (whether applied in a proceeding at law or in equity) or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, to the exercise of judicial discretion in
accordance with general equitable
<PAGE>
principles and to equitable defenses that may be applied to the remedy of
specific performance. The execution and delivery by Buyer of each of the
Acquisition Documents to which it is a party and the consummation by Buyer of
the transactions contemplated thereby will not (a) violate the Articles of
Incorporation or Bylaws of Buyer, or (b) violate any provisions of law or any
order of any court or any governmental entity to which Buyer is subject, or by
which Buyer may be bound.
SECTION 10.3. APPROVAL. Buyer, at the time of the Closing, will have
taken all requisite corporate action to approve this Agreement and the
transactions contemplated by this Agreement, and there shall have at the time of
Closing been delivered to Seller and the Shareholders certified copies of the
resolutions duly adopted in connection therewith.
SECTION 10.4. GOVERNMENTAL APPROVAL AND CONSENTS. Except with respect to
the HSR Act compliance contemplated by Section 6.4, no consent, approval, or
authorization of or declaration, filing, or registration with any governmental
or regulatory authority is required in connection with the execution, delivery,
and performance of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby.
SECTION 10.5. NO LITIGATION. There is no litigation at law or in equity,
no arbitration proceeding and no proceeding before any commission or other
administrative authority pending or, to the knowledge of Buyer, threatened which
affects, or which may affect Buyer's right to carry on the Business as conducted
on the date hereof, or Buyer's right to perform this Agreement in accordance
with its terms.
SECTION 10.6. NO UNTRUE STATEMENTS. Neither this Agreement, nor any
certificate, exhibit, or other instrument or list or information required to be
furnished by Buyer pursuant to this Agreement, contains, or will contain, any
untrue statement of a material fact or omits, or will omit, to state any
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 10.7. BUYER'S CAPITALIZATION. As of April 30, 1997, Buyer's
authorized capital stock consists solely of: (a) 160,000,000 shares of voting
common stock, of which 33,782,493 shares were issued and outstanding and
12,791,103 shares were held in treasury, and (b) 5,000,000 shares of preference
stock, of which no shares are currently issued and outstanding and no shares are
held in treasury. There are no outstanding securities of Buyer convertible into
or exchangeable for shares of Buyer's capital stock. Since May 16, 1997, Buyer
has not declared any dividend or other distribution to any shareholder.
SECTION 10.8. BROKERS AND FINDERS. Buyer has not incurred any obligation
or liability to any party for any brokerage fees, agent's commissions or
finder's fees in connection with the transactions contemplated hereby.
<PAGE>
SECTION 10.9. PURCHASE PRICE. The Purchase Price consists of fully-paid,
validly-issued, non-assessable Buyer's Common Stock, which has been registered
under the Securities Act, pursuant to a registration statement on Form S-3, and
all other applicable securities laws which has been listed on the NYSE, and
which is without restrictions of any kind on sale or other disposition.
ARTICLE XI
SURVIVAL; INDEMNIFICATION; RELATED MATTERS
------------------------------------------
SECTION 11.1. SURVIVAL.
(a) The representations and warranties of Seller and the Shareholders
contained in this Agreement shall survive the date of this Agreement, the
Closing Date and the consummation of the transactions contemplated by this
Agreement until the third (3rd) anniversary of the Closing Date, except for (i)
the representations and warranties contained in Sections 9.17 and 9.18, which
shall survive until the expiration of the applicable statute of limitations, and
(ii) the representations and warranties contained in Sections 9.1, 9.2, 9.3,
9.4, 9.7 and 9.27, which shall survive without limitation as to time. The
covenants and agreements of Seller and the Shareholders contained in this
Agreement, except as expressly provided herein, shall survive the Closing
without limitation as to time.
(b) The representations and warranties of Buyer contained in this Agreement
shall survive the date of this Agreement, the Closing Date and the consummation
of the transactions contemplated by this Agreement until the third (3rd)
anniversary of the Closing Date, except for the representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4 and 10.7, which shall survive
without limitation as to time. The covenants and agreements of Buyer contained
in this Agreement shall survive the Closing without limitation as to time.
(c) Notwithstanding any provision of this Agreement to the contrary, to
preserve any claim for the untruth, inaccuracy, incompleteness or breach, as the
case may be, of any such representation or warranty, the party claiming the same
shall be obligated to notify the party(ies) claimed against in writing of any
such event, or facts that may give rise to such event, before termination of
such representation or warranty; otherwise, such party's claim shall be forever
barred.
SECTION 11.2. INDEMNIFICATION.
(a) From and after the Closing Date, Seller and the Shareholders, shall
indemnify, defend and hold harmless Buyer and its successors and assigns from,
against and in respect of all liabilities, losses, diminution in value, damages,
amounts paid in settlement, costs or expenses, including, without limitation,
court costs and reasonable attorneys' fees, arising out of any actions, suits,
claims, judgments, orders or proceedings
<PAGE>
("Adverse Consequences") which Buyer may suffer through and after the date of
the claim for indemnification (including any Adverse Consequences Buyer may
suffer after the end of any applicable survival period) resulting from, arising
out of, relating to or caused by (i) the untruth, inaccuracy or incompleteness
of any representation, or breach of any warranty, of Seller or any of the
Shareholders contained in this Agreement, or the failure by Seller or any of the
Shareholders to perform any of his, her or its covenants or obligations
hereunder, (ii) the Retained Assets and/or the Excluded Liabilities, (iii) the
failure to comply with any "bulk sales" or similar laws applicable to the
transactions contemplated by this Agreement; or (iv) until the third (3rd)
anniversary of the Closing Date, but expressly subject to Section 11.2(i), any
Environmental Liability which existed on the Real Property, the Additional
Property (if applicable) or the Leasehold Property, or otherwise existed with
respect to the Purchased Assets or the Business, as of the Closing Date;
provided, however, that only several liability shall apply to Adverse
- -------- -------
Consequences with respect to any representation, warranty, covenant or
obligation of any of the Shareholders; and provided further that Seller and the
-------- -------
Shareholders shall not have any obligation to indemnify Buyer from, against or
in respect of any Adverse Consequences resulting from, arising out of, relating
to or caused by the untruth, inaccuracy, incompleteness or breach, as the case
may be, of any of the representations or warranties contained in Sections 9.5
through 9.10, Sections 9.14 through 9.16 or Sections 9.19 through 9.29 hereof,
or any Environmental Liability pursuant to clause (iv) above, (A) until Buyer
has suffered Adverse Consequences by reason of all such untruths, inaccuracies,
incompleteness or breaches, or Environmental Liability, as the case may be, in
excess of a $100,000.00 aggregate deductible, which amount Buyer shall be
required to pay or absorb before seeking indemnification hereunder (the
"Basket"), or (B) except as provided to the contrary in Section 11.2(i), to the
extent the Adverse Consequences suffered by Buyer by reason of all such
untruths, inaccuracies, incompleteness or breaches, or Environmental Liability,
as the case may be, exceed $1,100,000.00 (the "Cap"); provided, however, that
-------- -------
Buyer agrees to give Seller and the Shareholders prompt written notice of any
such untruth, inaccuracy, incompleteness, breach or failure, as the case may be,
of which Buyer obtains actual knowledge prior to the Closing Date. The
provisions of this Section 11.2 are the sole and exclusive remedy of Buyer with
respect to Adverse Consequences hereunder.
(b) From and after the Closing Date, Buyer shall indemnify, defend and hold
harmless Seller and the Shareholders and their respective successors and assigns
from, against and in respect of any Adverse Consequences that Seller or any of
the Shareholders shall suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to or caused by (i) the
untruth, inaccuracy or incompleteness of any of the representations of Buyer
contained in this Agreement, (ii) the breach of any warranty of Buyer contained
in this Agreement, or (iii) the failure by Buyer to perform any of its covenants
or obligations hereunder.
(c) A party seeking indemnification pursuant to this Section 11.2 (the
"Indemnified Party") shall give prompt notice to the party from whom such
indemnification is sought (the "Indemnifying Party") in the event that any
person not a
<PAGE>
party to this Agreement shall make any demand or claim, or file or threaten to
file any lawsuit (a "Third-Party Claim"), which Third-Party Claim may cause
liability to the Indemnifying Party pursuant to the indemnification provisions
of this Agreement. In any such event, the Indemnifying Party shall have the
right, exercisable by notice to the Indemnified Party within twenty (20) days
after notice by the Indemnified Party to the Indemnifying Party of the
commencement or assertion of such Third-Party Claim, to retain counsel (which
counsel shall be reasonably acceptable to the Indemnified Party), at the cost
and expense of the Indemnifying Party, to defend any such Third-Party Claim. The
Indemnified Party shall be permitted to employ separate counsel and to
participate in the defense of such Third-Party Claim, but the fees and expenses
of such counsel shall be borne by the Indemnified Party. In the event that the
Indemnifying Party shall fail to respond within twenty (20) days after receipt
of notice from the Indemnified Party of the commencement or assertion of any
such Third-Party Claim, then the Indemnified Party shall retain counsel and
conduct the defense of such Third-Party Claim as it may in its discretion deem
proper, at the cost and expense of the Indemnifying Party.
(d) Unless and until an Indemnifying Party assumes the defense of a Third-
Party Claim as provided in Section 11.2(c), or in the event the Indemnifying
Party ceases to diligently conduct such defense, the Indemnified Party may
defend against the Third-Party Claim in any manner it may reasonably deem
appropriate.
(e) The Indemnifying Party, if it shall have assumed the defense of any
Third-Party Claim, shall not have the right to consent to the entry of judgment
with respect to, or otherwise settle such Third-Party Claim without the prior
written consent of the Indemnified Party (which consent shall not be
unreasonably withheld or delayed), unless the judgment or proposed settlement
involves only the payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party. In no event will the
Indemnified Party consent to the entry of any judgment with respect to, or
otherwise settle any such Third-Party Claim without the prior written consent of
the Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).
(f) The parties hereto shall cooperate in the defense of any Third-Party
Claim and shall furnish such records, information and testimony, and attend at
such conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested in connection therewith.
(g) Any indemnification payment hereunder with respect to any Adverse
Consequences will be an amount which is sufficient to compensate the Indemnified
Party for the amount of such Adverse Consequences, after taking into account all
decreases in federal, state, local, or foreign taxes payable by the Indemnified
Party or any other tax benefit accruing to the Indemnified Party as a result of
the Adverse Consequences.
(h) If an Indemnifying Party timely assumes the defense of a Third-Party
Claim as provided in Section 11.2(c), the Indemnified Party will not be entitled
to any
<PAGE>
reimbursement by the Indemnifying Party in respect of expenses incurred by the
Indemnified Party.
(i) Notwithstanding anything contained herein to the contrary, from and
after the Closing Date (and, for any Adverse Consequences suffered by Buyer
prior to the third (3rd) anniversary of the Closing Date, after Buyer has
absorbed or paid the Basket and Seller and the Shareholders have indemnified
Buyer up to the amount of the Cap, it being mutually agreed and understood that,
for any Adverse Consequences constituting Environmental Liability suffered prior
to the third (3rd) anniversary of the Closing Date, Buyer shall be liable
therefor up to the amount of the Basket and Seller and the Shareholders shall be
liable therefor up to the amount of the Cap less the amount of the Basket),
----
Seller and the Shareholders shall severally indemnify, defend and hold harmless
Buyer and its successors and assigns from, against and in respect of fifty
percent (50%) of any Adverse Consequences, including, but not limited to, any
and all amounts paid by Buyer for investigatory costs, assessment costs, clean-
up costs, removal costs, remedial costs, governmental response costs, damages to
natural resources or other property, personal injuries, fines or penalties, to
the extent that the same arise out of, are based upon, or result from, both (i)
the enforcement of CERCLA, RCRA, the Georgia Hazardous Waste Management Act,
O.C.G.A. (S)(S)12-8-60 et seq., or the Georgia Hazardous Sites Response Act,
------
O.C.G.A. (s)(s)12-8-90 et seq., and rules and regulations promulgated
------
thereunder, by the United States Environmental Protection Agency, the Georgia
Environmental Protection Department, the successors or assigns of either or any
third party having enforcement rights under such laws, and (ii) the presence,
disposal, release or threatened release into the environment of any Hazardous
Substance which existed as of the Closing Date on the Real Property, the
Additional Property (if applicable) or the Leasehold Property. The obligations
of the Seller and the Shareholders under this Subparagraph 11.2(i) shall not be
limited by the Basket, the Cap or by any survival period.
ARTICLE XII
CONDITIONS TO CLOSING APPLICABLE TO BUYER
-----------------------------------------
The obligations of Buyer hereunder (including, without limitation, the
obligation of Buyer to close the transactions and consummate the purchase herein
contemplated) are subject to the following conditions precedent:
SECTION 12.1. CORRECTNESS OF WARRANTIES, ETC. All warranties and
representations made by Seller or any of the Shareholders herein, in any of the
other Acquisition Documents, or in any Exhibit or in any list or information
required to be delivered pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date, with the same effect as if such
warranties and representations had been made on and as of the Closing Date, and
Seller and each of the Shareholders shall have, in all material respects,
performed and complied with all agreements, covenants and conditions on his, her
or its parts required to be performed or complied with on or prior to
<PAGE>
the Closing Date, and at the Closing, Buyer shall have received a certificate
executed by an officer of Seller and each of the Shareholders to the foregoing
effects.
SECTION 12.2. NO UNDISCLOSED LIABILITIES, ETC. On the Closing Date,
Seller shall not have any material liability of any nature, whether accrued,
absolute, contingent or otherwise, relating to the Purchased Assets and not
disclosed in this Agreement, the Exhibits hereto or any certificate, document,
instrument, list or information required to be furnished by Seller pursuant to
this Agreement.
SECTION 12.3. NO PROCEEDINGS. No proceeding or formal investigation shall
have been commenced by any governmental or regulatory agency or by any other
person or entity with respect to any of the transactions contemplated by this
Agreement.
SECTION 12.4. SATISFACTION OF BUYER AND ITS COUNSEL. All proceedings to
be taken in connection with the consummation of the transactions contemplated by
this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Buyer and its counsel, and Buyer and its
counsel shall have received copies of such documents as its counsel may
reasonably request in connection with said transactions.
SECTION 12.5. OPINION OF COUNSEL. At the closing, there shall be
delivered to Buyer the written opinion of Kilpatrick Stockton LLP, counsel for
Seller, dated the Closing Date, substantially in the form annexed hereto as
Exhibit 12.5. Such opinion shall be acceptable to Buyer and its counsel.
SECTION 12.6. CONSENTS. All consents required by Section 6.4 including,
without limitation, compliance with the HSR Act, shall have been obtained on or
before the Closing Date.
SECTION 12.7. RESERVES. Buyer shall have confirmed, to its reasonable
satisfaction, that the quantity, quality and mineralogy of the reserves on the
Real Property, the Additional Property (if applicable) and the Leasehold
Property are adequate for the operation of the Business after the Closing Date.
SECTION 12.8. ENVIRONMENTAL AND LAND USE. Buyer shall have confirmed, to
its reasonable satisfaction, that the environmental and land use (including,
without limitation, zoning and permitting) status of the Real Property, the
Additional Property (if applicable) and the Leasehold Property are legally
sufficient to allow Buyer to operate the Business after the Closing Date.
SECTION 12.9. DELIVERIES. Seller should have made all deliveries to Buyer
required by Section 5.1.
SECTION 12.10. EXTENSION OF BELLWOOD QUARRY LEASE. Seller shall have
entered into an extension of the Bellwood Quarry Lease with Fulton County,
Georgia for a period
<PAGE>
of time, and otherwise upon terms and conditions, acceptable to Buyer in its
sole and absolute discretion. Seller shall have deposited $150,000 in the
Residential Neighborhood Claim Fund established pursuant to Paragraph 16 of the
Bellwood Quarry Lease and Seller shall have appointed as a Trustee of such Fund
the individual chosen by Buyer pursuant to Seller's appointment power under such
Paragraph 16.
SECTION 12.11. ESTOPPEL CERTIFICATES. Seller shall have delivered to
Buyer estoppel certificates from the landlords or lessors under the Bellwood
Quarry Lease and the Rockmart Quarry Lease covering such matters as Buyer shall
reasonably request.
ARTICLE XIII
CONDITIONS TO CLOSING APPLICABLE TO SELLER AND THE SHAREHOLDERS
---------------------------------------------------------------
The obligations of Seller and each of the Shareholders hereunder
(including, without limitation, the obligation to close the transactions herein
contemplated) are subject to the following conditions precedent:
SECTION 13.1. CORRECTNESS OF WARRANTIES, ETC. All warranties and
representations made by Buyer herein, in any of the other Acquisition Documents,
in any Exhibit or in any list or information required to be delivered pursuant
hereto shall be true and correct in all material respects on and as of the
Closing Date, with the same effect as if such warranties and representations had
been made on and as of the Closing Date, and Buyer shall have, in all material
respects, performed and complied with all agreements, covenants and conditions
on its part required to be performed or complied with on or prior to the Closing
Date, and at the Closing, Seller and the Shareholders shall have received a
certificate executed by an officer of Buyer to the foregoing effects.
SECTION 13.2. NO PROCEEDINGS. No proceeding or formal investigation shall
have been commenced by any governmental or regulatory agency or by any other
person or entity with respect to any of the transactions contemplated in this
Agreement.
SECTION 13.3. SATISFACTION OF SELLER AND ITS COUNSEL. All proceedings to
be taken in connection with the consummation of the transactions contemplated by
this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Seller and its counsel, and Seller and its
counsel shall have received copies of such documents as its counsel may
reasonably request in connection with said transactions.
SECTION 13.4. OPINION OF COUNSEL TO BUYER. At the Closing, there shall be
delivered to Seller the written opinion of Alston & Bird LLP, counsel for Buyer,
dated the Closing Date, substantially in the form attached hereto as Exhibit
13.4. Such opinion shall be acceptable to Seller and its counsel.
<PAGE>
ARTICLE XIV
BULK SALES LAWS
---------------
Seller hereby represents and warrants that, on the Closing Date, the fair
market value of Seller's assets, or the value thereof on the books of Seller,
whichever is the lesser amount, exceeds the total amount of Seller's
liabilities, and that the proceeds to Seller from the sale of the Purchased
Assets contemplated in this Agreement will be applied first to the debts of
Seller associated with or related to such Purchased Assets. In consideration of
such representation and warranty by Seller, Buyer hereby waives any compliance
with the bulk sales law of any state or other jurisdiction which might be
applicable to the transactions contemplated in this Agreement, subject to the
agreement that nothing in this Article XIV shall estop or prevent Buyer from
asserting as a bar or defense to any action or proceeding brought under that law
that it is not applicable to the sale contemplated under this Agreement;
provided, however, that Seller and each of the Shareholders shall indemnify and
- -------- -------
hold harmless Buyer with respect to any and all liability which may arise as a
result of the application of any such bulk sales law, the intent of this
provision being that Seller will maintain Buyer in such financial condition as
would have resulted had such compliance taken place.
ARTICLE XV
MISCELLANEOUS
-------------
SECTION 15.1. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated:
(i) by the mutual consent of the Seller, the Shareholders and Buyer;
(ii) by Buyer, on the one hand, or Seller and the Shareholders, on
the other, in the event of the material untruth, inaccuracy, incompleteness
or breach, as the case may be, of any representation or warranty made by
the other party in this Agreement which cannot be or has not been corrected
or cured within thirty (30) days after the giving of written notice to the
party making such representation or warranty of such untruth, inaccuracy,
incompleteness or breach, as the case may be; or
(iii) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event of a material breach by the other party of any
covenant or agreement contained in this Agreement which cannot be and has
not been cured within thirty (30) days after the giving of written notice
to the breaching party of such breach; or
<PAGE>
(iv) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event any governmental or regulatory approval required
for the consummation of the transactions contemplated hereby shall have
been denied by final nonappealable action of the governmental or regulatory
authority or if any action taken by such authority is not appealed within
the time limit for appeal; or
(v) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event that any of the conditions precedent to the
obligations of such parties to consummate the transactions contemplated
hereby have not been satisfied or fulfilled by December 31, 1997; or
(vi) by Buyer as provided in Sections 5.3(c), 5.5(a) or
5.6(b)(ii)(A); or
(vii) automatically as provided in Section 6.7.
(b) In the event of the termination and abandonment of this Agreement
pursuant to Section 15.1(a)(i), (iv), (vi) or (vii), this Agreement shall become
void and have no effect without any liability on the part of any of the parties
hereto or their directors, officers or stockholders in respect of this
Agreement, except for any liabilities which expressly survive any such
termination. In the event of termination or abandonment hereof pursuant to
Section 15(a)(ii) where the untruth, inaccuracy, incompleteness or breach, as
the case may be, of the subject representation or warranty occurs without the
actual knowledge of the party making the same, the other party's sole remedy
hereunder shall be the termination of this Agreement. In the event of
termination or abandonment hereof pursuant to Section 15.1(a)(iii) or (v), or
pursuant to Section 15.1(a)(ii) where the untruth, inaccuracy, incompleteness or
breach, as the case may be, occurs with the actual knowledge of the party making
the same, the parties shall have all rights and remedies available to them at
law or in equity with respect to such termination or abandonment.
SECTION 15.2. NOTICES. Any notice, communication or request under this
Agreement to either of the parties shall be in writing and shall be effectively
delivered if delivered personally or by courier, or mailed, upon deposit in the
United States mail, by first-class registered or certified mail, postage prepaid
and return receipt requested, or by telegram, facsimile transmission or by
nationally-recognized overnight courier service, as follows:
If to Buyer:
Vulcan Materials Company
P.O. Box 80730
Atlanta, Georgia 30366
or
2299 Perimeter Park Drive
Atlanta, GA 30341
Attention: Mr. G.M. (Mac) Badgett, III, President, Southeast Division
<PAGE>
(Telecopy: (770) 452-9505)
with copies to:
Vulcan Materials Company
P.O. Box 530187
Birmingham, AL 35253
or
One Metroplex Drive
Birmingham, Alabama 35209
Attention: Michael R. Mills, Esq.
(Telecopy: (205) 877-3094)
-and-
Alston & Bird, LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Alexander W. Patterson, Esq.
(Telecopy: (404) 881-7777)
or to Seller or any of the Shareholders:
c/o C.W. Matthews Quarries, Inc.
P.O. Drawer 970
Marietta, Georgia 30061
or
1600 Kenview Drive
Marietta, GA 30060
Attention: Mr. Robert E. Matthews, President
(Telecopy: (770) 422-1068)
with a copy to:
Kilpatrick Stockton LLP
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309
Attention: Harold E. Abrams, Esq.
(Telecopy: (404) 815-6555).
Any party may change the address to which notices are to be sent by giving
written notice of such change of address to the other parties in the manner
above provided for giving notice. If delivered personally or by courier, the
date on which the notice, request,
<PAGE>
instruction or document is delivered shall be the date on which such delivery is
made and if delivered by mail, telegram, facsimile transmission or overnight
courier service as aforesaid, the date on which such notice, request,
instruction or document is received shall be the date of delivery.
SECTION 15.3. HEADINGS; CAPTIONS. The captions and other headings
contained in this Agreement as to the contents of particular articles, sections,
paragraphs or other subdivisions contained herein are inserted for convenience
of reference only and are in no way to be construed as part of this Agreement or
as limitations on the scope of the particular articles, sections, paragraphs or
other subdivisions to which they refer and shall not affect the interpretation
or meaning of this Agreement. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine, or
neuter, as the context requires. Any reference to a "person" herein shall
include an individual, firm, corporation, partnership, trust, governmental
authority or body, association, unincorporated organization or any other entity.
SECTION 15.4. INCORPORATION OF EXHIBITS. This Agreement shall be deemed
to have incorporated by reference all of the Exhibits referred to herein to the
same extent as if such Exhibits were fully set forth herein. Each reference
herein to "the Agreement" or "this Agreement" shall be construed to include each
such Exhibit.
SECTION 15.5. ENTIRE AGREEMENT AND AMENDMENT. This Agreement and the
Exhibits attached hereto represent the entire understanding and agreement
between the parties with respect to the subject matter hereof and shall
supersede any prior agreements and understanding between the parties with
respect to that subject matter. This Agreement may not be amended or modified
except by a written instrument executed by an officer of Buyer, an officer of
Seller and the Shareholders.
SECTION 15.6. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of and be enforceable by the parties hereto, and their respective
successors and assigns, but no assignment shall relieve any party of its
obligations hereunder. Buyer shall have the right to assign its rights and
obligations under this Agreement to one or more subsidiaries of Buyer; provided,
--------
however, that Buyer hereby unconditionally guarantees the performance by such
- -------
assignee or assignees of each and every obligation of Buyer under this
Agreement. If such assignment to one or more subsidiaries is made by Buyer, the
term "Buyer" as used herein shall refer to the assignee or assignees of this
Agreement.
SECTION 15.7. GOVERNING LAW. This Agreement shall be controlled,
construed and enforced in accordance with the internal laws of the State of
Georgia, without reference to the choice of law or conflicts of laws provisions
thereof.
SECTION 15.8. COUNTERPARTS. This Agreement may be executed simultaneously
and in any number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
<PAGE>
SECTION 15.9. RESERVED.
SECTION 15.10. TAXES; PRORATIONS. Ad valorem taxes for the current year
shall be prorated as of the Closing Date between Seller at Closing. Proration
of ad valorem taxes, for purposes of calculating adjustments of payments at the
Closing Date, shall be made on the basis of the most current tax rates and
assessed values.
SECTION 15.11. NO BENEFIT TO OTHERS. The representations, covenants and
agreements contained in this Agreement are for the sole benefit of the parties
hereto and, in the case of Article XI hereof, the indemnified parties and their
respective heirs, executors, administrators, legal representatives, successors
and assigns, and they shall not be construed as conferring any rights on any
other persons.
SECTION 15.12. PARTIAL INVALIDITY. Whenever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
SECTION 15.13. INVESTIGATION. No inspection, preparation, or compilation
of information or Exhibits, or audit of the inventories, properties, financial
condition or other matters relating to Seller, the Shareholders or the Purchased
Assets conducted by or on behalf of Buyer pursuant to this Agreement shall in
any way limit, affect, or impair the ability of Buyer to rely upon the
representations, covenants and agreements of Seller and the Shareholders set
forth herein. The covenants and representations of Seller, the Shareholders and
Buyer shall survive the Closing and the execution and delivery of all
instruments of conveyance for the periods set forth in Section 11.1.
SECTION 15.14. PUBLIC ANNOUNCEMENTS. Seller, the Shareholders and Buyer
will consult with each other before issuing any press releases or otherwise
making any public statements or filings with governmental entities with respect
to this Agreement or the transactions contemplated hereby and shall not issue
any press releases or make any public statements or filings with governmental
entities prior to such consultation and shall modify any portion thereof if the
other party reasonably objects thereto, unless the same may be required by
applicable law.
SECTION 15.15. DISPUTE RESOLUTION. The parties agree that any dispute
between or among them arising out of or based upon this Agreement, the other
Acquisition Documents or the consummation of the transactions contemplated
hereby shall be submitted to and resolved by arbitration in Atlanta, Georgia in
accordance with the
<PAGE>
Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association, and the decision of the arbiter in such dispute shall
be final and binding on the parties to such arbitration proceeding. Except as
the arbiter may otherwise award or assess, each party shall bear its own costs
and expenses, including, without limitation, the expense of its counsel, in any
such arbitration proceeding. The parties to any arbitration proceeding shall be
entitled to conduct reasonable discovery in connection therewith. Each award
rendered by the arbiter pursuant to this Section 15.15 shall be accompanied by a
written decision explaining the arbiter's reasoning and addressing each party's
arguments. Each arbitration proceeding held pursuant to this Section 15.15 shall
be heard by a single neutral arbiter selected in accordance with the Arbitration
Rules.
SECTION 15.16. KNOWLEDGE. The phrases "Seller's knowledge" or "the
knowledge of Seller" mean the actual knowledge, without conducting any inquiry,
of Robert E. Matthews, James C. Scott, Jr., Q. William Hammack, Jr., and Charles
E. Matthews. The phrases "Shareholder's knowledge" or "the knowledge of a
Shareholder" mean the actual knowledge, without conducting any inquiry, of
Robert E. Matthews, James C. Scott, Jr., Q. William Hammack, Jr., and Charles E.
Matthews. The phrases "Buyer's knowledge" or "the knowledge of Buyer" mean the
actual knowledge, without conducting any inquiry, of G.M. (Mac) Badgett, III.
<PAGE>
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Agreement to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER
------
ATTEST: C.W. MATTHEWS QUARRIES, INC., a
Georgia corporation
/s/ James C. Scott, Jr. By: /s/ Robert E. Matthews
- --------------------------- ----------------------------
Name: James C. Scott, Jr. Robert E. Matthews
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Robert E. Matthews (SEAL)
--------------------------------
Robert E. Matthews
/s/ James C. Scott, Jr. (SEAL)
--------------------------------
James C. Scott, Jr., individually; as
Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Michael Scott Matthews Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Katherine Dawn
Matthews Subchapter S Trust U/A
February 14, 1997
<PAGE>
/s/ William Hammack, Jr. (SEAL)
-------------------------------
Q. William Hammack, Jr., individually;
as Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Michael Scott Matthews Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Katherine Dawn
Matthews Subchapter S Trust U/A
February 14, 1997
/s/ Dianne Matthews (SEAL)
-------------------------------
Dianne Matthews, as Co-Trustee of the
Charles Matthews Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Mary Matthews Burton Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Michael R. Mills By: /s/ Donald M. James
- ----------------------------- ----------------------------
Name: Michael R. Mills Name: Donald M. James
Title: Assistant Secretary Title: Chairman and CEO
[CORPORATE SEAL]
<PAGE>
_____________________________________________
FIRST AMENDMENT TO THE
ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
C.W. MATTHEWS QUARRIES, INC.,
THE SHAREHOLDERS OF
C.W. MATTHEWS QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
_____________________________________________
<PAGE>
FIRST AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION (this "Amendment") is made and entered into as of this 19th day
of December, 1997, by and among C.W. MATTHEWS QUARRIES, INC., a Georgia
corporation ("Seller"), the shareholders of Seller listed on Exhibit A hereto
(each a "Shareholder", and collectively, the "Shareholders") and VULCAN
MATERIALS COMPANY, a New Jersey corporation ("Buyer").
W I T N E S S E T H :
---------------------
WHEREAS, the Seller, Shareholders, and Buyer are parties to an Asset
Purchase Agreement and Plan of Reorganization, dated as of September 29, 1997
(the "Agreement;"
WHEREAS, the parties hereto agree that the capitalized terms used herein
and not otherwise defined herein shall have the meanings given such terms in the
Asset Purchase Agreement;
WHEREAS, the Seller, Shareholders, and Buyer are of the opinion that the
Agreement should be amended to extend the Closing Date to reflect certain
potential delays; and
WHEREAS, the Seller, Shareholders, and Buyer are of the opinion that the
Agreement should be amended to incorporate the agreed upon forms for the Asphalt
Supply Agreement and Registration Rights Agreement;
NOW, THEREFORE, for and in consideration of the above mutual
representations, warranties, covenants and agreements and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree as follows:
1. Amendment to Section 2.1(e) of the Agreement
--------------------------------------------
Section 2.1(e) of the Agreement is hereby deleted in its entirety and a new
Section 2.1(e) is substituted therefor, to read as follows:
SECTION 2.1. PURCHASE PRICE.
(e) Finally, in consideration of Buyer's assumption of Seller's royalty
liability to Fulton County, Georgia under the Bellwood Quarry Lease (as defined
in Exhibit 1.1(d)(iii) hereto) as of the Closing Date, but provided that C.W.
Matthews Contracting Co., Inc., a
1
<PAGE>
Georgia corporation affiliated with Seller ("Contracting"), enters into an
asphalt supply agreement (the "Asphalt Supply Agreement") with Buyer on the
Closing Date in substantially the form attached hereto as Exhibit 2.1(e), the
purchase price payable hereunder shall be reduced by an amount equal to $4.00
per ton multiplied by the number of tons of aggregate for which Buyer will be
liable as of the Closing Date to Fulton County, Georgia for royalty payments
under the Bellwood Quarry Lease, assuming for the purposes hereof that Fulton
County, Georgia elects to receive the royalty payments solely in granite
aggregate. The Asphalt Supply Agreement shall, at a minimum, provide that, in
the event that Fulton County, Georgia chooses to receive its royalty payments
under the Bellwood Quarry Lease in plant mixed asphalt rather than granite
aggregate, and also in the event that Fulton County, Georgia elects to make
outright purchases of asphalt mix as a customer pursuant to the Bellwood Quarry
Lease, Contracting would agree to supply such asphalt to Buyer at the same price
per ton as such asphalt mix is required to be supplied to Fulton County, Georgia
under the terms of the Bellwood Quarry Lease as then in effect, and Contracting
would purchase the aggregate for such asphalt mix from Buyer from time to time.
2. Amendment to Section 2.2 of the Agreement
-----------------------------------------
Section 2.2 of the Agreement is hereby deleted in its entirety and a new
Section 2.2 is substituted therefor, to read as follows:
SECTION 2.2. FORM OF CONSIDERATION. Buyer shall pay the Purchase Price to
the Shareholders pursuant to Section 2.7, in the form of Buyer's Common Stock,
which shares shall be fully-paid, validly-issued, non-assessable, registered
under the Securities Act of 1933, as amended (the "Securities Act"), and all
other applicable securities laws for resale thereof, and listed on the New York
Stock Exchange pursuant to a registration rights agreement (the "Registration
Rights Agreement") in substantially the form attached hereto as Exhibit 2.2
which shall be signed at Closing. The aggregate number of shares of Buyer's
Common Stock to be delivered to the Shareholders shall be equal to the Purchase
Price divided by the Base Period Trading Price. As used herein, "Base Period
Trading Price" shall mean the average of the daily closing prices for shares of
Buyer's Common Stock for the twenty (20) consecutive trading days on which such
shares are actually traded on the New York Stock Exchange (as reported by The
Wall Street Journal) ending at the close of trading on the trading day that is
the business day immediately prior to the Closing Date; provided, however, that
-------- -------
it is mutually agreed and understood that the Base Period Trading Price shall be
no less than $52.875, and no more than $72.875. Notwithstanding the foregoing,
no Shareholder shall be entitled to receive any fractional share of Buyer's
Common Stock, and each Shareholder shall forfeit any such fractional share and
shall not be entitled to any consideration in lieu thereof. The Buyer's Common
Stock paid to the Shareholders hereunder is referred to herein as the "Stock
Consideration".
2
<PAGE>
3. Amendment to Section 4.1 of the Agreement
-----------------------------------------
Section 4.1 of the Agreement is hereby deleted in its entirety and a new
Section 4.1 is substituted therefor, to read as follows:
SECTION 4.1. THE CLOSING. The closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of Alston & Bird LLP, One
Atlantic Center, 1201 West Peachtree Street, Atlanta, Georgia 30309-3424 at
10:00 A.M. local time on the date which is thirty (30) business days after all
the conditions to Closing have been satisfied or waived and the consent of
Fulton County, Georgia to the transfer and assignment of the Bellwood Quarry
Lease to Buyer is obtained, or at such other place and/or on such other date and
at such other time as may be agreed by Seller and Buyer, but in no event shall
the Closing Date be later than June 30, 1998.
4. Amendment to Section 5.1(p) of the Agreement
--------------------------------------------
Section 5.1(p) of the Agreement is hereby amended by deleting the word
"and" appearing in Section 5.1(p)
5. Amendment to Section 5.1(q) of the Agreement
--------------------------------------------
Section 5.1(q) of the Agreement is hereby deleted in its entirety and a new
Section 5.1(q) is substituted therefor, to read as follows:
SECTION 5.1. DELIVERIES BY SELLER.
(q) the Registration Rights Agreement; and
6. Amendment to Section 5.1(r) of the Agreement.
---------------------------------------------
A new Section 5.1(r) is hereby added and shall read as follows:
SECTION 5.1. DELIVERIES BY SELLER.
(r) such other documents as may be reasonably requested by Buyer.
7. Amendment to Section 5.2(j) of the Agreement
--------------------------------------------
Section 5.2(j) of the Agreement is hereby amended by deleting the word
"and" appearing in Section 5.2(j).
3
<PAGE>
8. Amendment to Section 5.2(k) of the Agreement
--------------------------------------------
Section 5.2(k) of the Agreement is hereby deleted in its entirety and a new
Section 5.2(k) is substituted therefor, to read as follows:
SECTION 5.2. DELIVERIES BY BUYER.
(k) the Registration Rights Agreement; and
9. Amendment to Section 5.2(l) of the Agreement
--------------------------------------------
Section 5.2(l) of the Agreement is hereby deleted in its entirety and a new
Section 5.2(l) is substituted therefor, to read as follows:
SECTION 5.2. DELIVERIES BY BUYER.
(l) such other documents as may be reasonably requested by Seller.
10. Amendment to Section 5.3(a) of the Agreement
--------------------------------------------
Section 5.3(a) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(a) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY. (a) Buyer will obtain a current survey of
the Real Property, the Additional Property and the Leasehold Property, certified
by a surveyor registered under the laws of the State of Georgia (the "Survey")
by December 31, 1997. Buyer shall bear the cost of the Survey.
11. Amendment to Section 5.3(b) of the Agreement
--------------------------------------------
Section 5.3(b) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(b) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY.
(b) In addition, by no later than December 19, 1997, Buyer shall obtain a
binding and enforceable title commitment (the "Commitment") from a title company
acceptable to Buyer (the "Title Company"), for the issuance of a title policy of
title insurance (the "Title Policy") to insure title to the Real Property, the
Additional Property and Seller's leasehold interests in the Leasehold Property
in Buyer, subject only to (i) liens
4
<PAGE>
for Taxes, assessments, both general and special, and other governmental charges
which are not due and payable as of the Closing Date (other than Taxes arising
out of the transaction contemplated hereby, which shall be paid by Seller
pursuant to Section 2.9); (ii) all building codes and zoning ordinances and
other laws heretofore, now or hereafter enacted, made or issued by any
governmental authority affecting the Business; (iii) all electric, power,
telephone, gas, sanitary sewer, storm sewer, water and other utility lines,
pipelines, service lines and facilities of any nature now located on, over or
under the Real Property, the Leasehold Property, and, if applicable, the
Additional Property, and all licenses, easements, rights-of-way and other
agreements relating thereto; (iv) all existing public and private roads and
streets (whether dedicated or undedicated), and all railroad lines and railroad
rights-of-way affecting the Real Property, the Leasehold Property, and, if
applicable, the Additional Property; and (v) all matters waived by Buyer
pursuant to the provisions of Section 5.3(c)(ii) (collectively, the "Permitted
Encumbrances"). Buyer shall be solely responsible for the cost of the
Commitment.
12. Amendment to Section 5.3(c) of the Agreement
--------------------------------------------
Section 5.3(c) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(c) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY.
(c) In the event that the Commitment or the Survey reveal any encumbrance
in or upon any portion of the Real Property, the Additional Property or the
Leasehold Property or any encroachment of an improvement on the Property
necessary to the operation of the Business as presently conducted on any
adjoining property, in either case which is unacceptable to Buyer (collectively,
the "Unacceptable Encumbrances"), with the exception of the Permitted
Encumbrances, Buyer shall, by no later than January 16, 1998, deliver to Seller
written notification of each Unacceptable Encumbrance. Within the same time
period, Buyer shall give Seller notice of Buyer's willingness to purchase the
Additional Property, and should Buyer elect to do so, the Additional Property,
if acquired by Seller, shall become part of the Purchased Assets hereunder. On
or before the Closing Date, Seller shall be required to remove all Unacceptable
Encumbrances in the nature of liens, security titles and security interests
which may be removed or released by the payment of money (collectively, the
"Monetary Encumbrances"). If Seller is unable to cause the removal of all
Unacceptable Encumbrances or arrange to insure or bond over, to the reasonable
satisfaction of Buyer, such Unacceptable Encumbrances, prior to the scheduled
Closing Date, Buyer may exercise any of the following options:
(i) postpone the closing for an additional period of time as Buyer may
deem appropriate, but no longer than sixty (60) days, in order to allow
removal of any such Unacceptable Encumbrance;
5
<PAGE>
(ii) waive the removal of any such Unacceptable Encumbrance as a
condition to closing, in which event such Unacceptable Encumbrance shall be
deemed an additional Permitted Encumbrance hereunder; or
(iii) terminate this Agreement, in which case Buyer, Seller and the
Shareholders shall have no further obligations hereunder, except those
which expressly survive any such termination;
provided, however, that, notwithstanding the foregoing, Seller's failure to
- -------- -------
cause the removal of the Monetary Encumbrances shall be a material breach of
covenant pursuant to Section 15.1(a)(iii) and, in addition to the options set
forth above, Buyer shall be entitled to exercise the rights and remedies set
forth in Section 15.1. Any encumbrances disclosed by the Commitment and/or the
Survey which are not objected to in writing shall be deemed additional Permitted
Encumbrances hereunder.
13. Amendment to Section 5.6(d) of the Agreement
--------------------------------------------
A new Section 5.6(d) is hereby added to read as follows:
SECTION 5.6. ENVIRONMENTAL MATTERS.
(d) The Buyer, Seller and Shareholders hereby agree to the plan attached
hereto as Schedule 5.6 (the "Environmental Compliance Plan").
6
<PAGE>
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Amendment to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER:
------
ATTEST: C.W. MATTHEWS QUARRIES, INC., a
Georgia corporation
/s/ James C. Scott, Jr. By: /s/ Robert E. Matthews
- ------------------------------ ---------------------------
Name: James C. Scott, Jr. Robert E. Matthews
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Robert E. Matthews (SEAL)
--------------------------------
Robert E. Matthews
/s/ James C. Scott, Jr. (SEAL)
--------------------------------
James C. Scott, Jr., individually; as
Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Michael
Scott Matthews Subchapter S Trust U/A
May 22, 1995; and as Co-Trustee of the
Katherine Dawn Matthews Subchapter S
Trust U/A February 14, 1997
7
<PAGE>
/s/ William Hammack, Jr. (SEAL)
--------------------------------
Q. William Hammack, Jr., individually;
as Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Michael Scott Matthews Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Katherine Dawn
Matthews Subchapter S Trust U/A
February 14, 1997
/s/ Dianne Matthews (SEAL)
--------------------------------
Dianne Matthews, as Co-Trustee of the
Charles Matthews Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Mary Matthews Burton Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Michael R. Mills By: /s/ Guy M. Badgett, III
- ----------------------------- -------------------------------
Name: Michael R. Mills Name: Guy M. Badgett, III
Title: Assistant Secretary Title: President, Southeast Division
[CORPORATE SEAL]
8
<PAGE>
___________________________________________
SECOND AMENDMENT TO THE
ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
C.W. MATTHEWS QUARRIES, INC.,
THE SHAREHOLDERS OF
C.W. MATTHEWS QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
___________________________________________
<PAGE>
SECOND AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS SECOND AMENDMENT TO THE ASSET PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION (this "Second Amendment") is made and entered into as of this
15th day of January, 1998, by and among C.W. MATTHEWS QUARRIES, INC., a Georgia
corporation ("Seller"), the shareholders of Seller listed on the signature page
hereto (each a "Shareholder", and collectively, the "Shareholders") and VULCAN
MATERIALS COMPANY, a New Jersey corporation ("Buyer").
W I T N E S S E T H :
---------------------
WHEREAS, the Seller, Shareholders, and Buyer are parties to an Asset
Purchase Agreement and Plan of Reorganization, dated September 29, 1997 (the
"Agreement");
WHEREAS, the Seller, Shareholders, and Buyer are parties to a First
Amendment to the Agreement, dated December 19, 1997 (the "First Amendment"); and
WHEREAS, the Seller, Shareholders, and Buyer hereto agree the January 16,
1998 date in Section 5.3(c) of the Agreement and the First Amendment should be
extended to January 23, 1998;
NOW, THEREFORE, for and in consideration of the above mutual
representations, warranties, covenants and agreements and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree that the date
"January 16, 1998" in Section 5.3(c) of the Agreement and the First Amendment is
hereby deleted and is substituted with the date "January 23, 1998."
-1-
<PAGE>
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Amendment to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER:
------
ATTEST: C.W. MATTHEWS QUARRIES, INC., a
Georgia corporation
/s/ James C. Scott, Jr. By: /s/ Robert E. Matthews
- ---------------------------- -----------------------------
Name: James C. Scott, Jr. Robert E. Matthews
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Robert E. Matthews (SEAL)
----------------------------------
Robert E. Matthews
/s/ James C. Scott, Jr. (SEAL)
----------------------------------
James C. Scott, Jr., individually; as
Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Michael Scott Matthews Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Katherine Dawn
Matthews Subchapter S Trust U/A
February 14, 1997
-2-
<PAGE>
/s/ William Hammack, Jr. (SEAL)
----------------------------------
Q. William Hammack, Jr., individually;
as Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Michael Scott Matthews Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Katherine Dawn
Matthews Subchapter S Trust U/A
February 14, 1997
/s/ Dianne Matthews (SEAL)
----------------------------------
Dianne Matthews, as Co-Trustee of the
Charles Matthews Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Mary Matthews Burton Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Michael R. Mills By: /s/ Guy M. Badgett, III
- ----------------------------- -----------------------------------
Name: Michael R. Mills Name: Guy M. Badgett, III
Title: Assistant Secretary Title: President, Southeast Division
[CORPORATE SEAL]
-3-
<PAGE>
EXHIBIT 5
[LETTERHEAD OF ALSTON & BIRD LLP APPEARS HERE]
April 20, 1998
Vulcan Materials Company
One Metroplex Drive
Birmingham, Alabama 35209
Re: Form S-3 Registration Statement
Ladies and Gentlemen:
We have acted as special counsel to Vulcan Materials Company, a New Jersey
corporation (the "Company"), in connection with a Registration Statement on Form
S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and covering 375,000 shares (the "Shares") of the Company's
common stock, $1.00 par value ("Common Stock"), which are being offered by
certain shareholders (the "Selling Shareholders") of the Company. The Selling
Shareholders will acquire the Shares upon the consummation of the acquisition of
C.W. Matthews Quarries, Inc., a Georgia corporation ("C.W. Matthews"), pursuant
to the terms of that certain Asset Purchase Agreement and Plan of Reorganization
(the "Asset Purchase Agreement") dated September 24, 1997, as amended by the
First Amendment to the Asset Purchase Agreement dated December 19, 1997, and the
Second Amendment to the Asset Purchase Agreement dated January 15, 1998,
(collectively, the "C.W. Matthews Agreement"), under which the Company will
acquire certain assets of C.W. Matthews, including the rights to the Bellwood
and Rockmart Quarries (as therein defined) in consideration for the Shares. The
Company will not receive any proceeds from the sale of the Shares by the Selling
Shareholders. The opinion hereinafter set forth is given to the Commission at
the request of the Company pursuant to Item 16 of Form S-3 and Item 601(b) (5)
of Regulation S-K.
We have examined the Articles of Incorporation of the Company, the Bylaws
of the Company, records of proceedings of the Board of Directors, committees
thereof, and
<PAGE>
the shareholders of the Company deemed by us to be relevant to this opinion
letter, the Registration Statement and the Asset Purchase Agreement. We also
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such other corporate records of the Company, such other
agreements and instruments, such as certificates of public officials, officers
of the Company, the Selling Shareholders and other persons, and such other
documents as we have deemed necessary or appropriate as a basis for the opinions
hereinafter expressed. In such examination, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the authenticity and
completeness of all documents admitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, informed,
photostatic or facsimile copies, and the authenticity of the originals of such
copies, and we have assumed all certificates of the public officials to have
been properly given and to be accurate.
As to factual matters relevant to this opinion letter, we have relied upon
representations and warranties as to factual matters contained in certificates
and statements of Company and certain public officials. Except to the extent
expressly set forth herein, we have made no independent investigations with
regard thereto, and, accordingly we do not express any opinions as to matters
that might have been disclosed by independent verification.
On the basis of the foregoing and subject to the limitations set forth
herein, we are of the opinion that, upon issuance and delivery of the Shares as
provided in the Asset Purchase Agreement, the Shares will be validly issued,
fully paid and nonassessable by the Company.
Members of this firm are licensed to practice law in the State of Georgia
and before the federal courts that have jurisdiction in the State of Georgia,
and we express no opinion with regard to any law other than the laws of State of
Georgia. Where necessary for purposes of rendering this opinion, we have assumed
that the substantive laws of the State of New Jersey are substantially similar
to the substantive laws of the State of Georgia which would govern the matters
covered by this opinion.
We consent to the filing of this opinion letter as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Prospectus constituting a part thereof. In giving such consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Securities Act of 1933, as amended or the
rules and regulations of the Commission thereunder.
This opinion letter is being furnished by us to the Company and the
Commission solely for the benefit of the Company and the Commission in
connection with the Registration Statement and is not to be used, circulated,
quoted or otherwise relied upon any other person, or by the Company or the
Commission for any other purpose, without our expressed written consent. The
only opinion rendered by us consists of those matters set forth in the fifth
paragraph hereof, and no opinion may be implied or inferred beyond those
expressly stated. This opinion letter is rendered as of the date hereof, and we
have no obligation to update this opinion letter.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Alexander W. Patterson
------------------------------
A Partner
-2-
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Vulcan Materials Company on Form S-3 of our reports dated February 6, 1998,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Vulcan Materials Company for the year ended December 31, 1997 and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Birmingham, Alabama
April 16, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Marion H. Antonini
-----------------------------
Marion H. Antonini
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Donald B. Rice
-----------------------------
Donald B. Rice
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Orin R. Smith
-----------------------------
Orin R. Smith
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 1st day of April, 1998.
/s/ Douglas J. McGregor
-----------------------------
Douglas J. McGregor
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 1st day of April, 1998.
/s/ John K. Greene
-----------------------------
John K. Greene
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Herbert A. Sklenar
-----------------------------
Herbert A. Sklenar
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Donald M. James
-----------------------------
Donald M. James
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Livio D. DeSimone
-----------------------------
Livio D. DeSimone
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ Ann D. McLaughlin
-----------------------------
Ann D. McLaughlin
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned director of Vulcan Materials Company, a New Jersey
corporation, hereby nominates, constitutes and appoints William F. Denson, III,
E. Starke Sydnor, and Michael R. Mills, and each of them, the true and lawful
attorneys of the undersigned to sign the name of the undersigned as director to
the Registration Statement on Form S-3 relating to the offering of shares of
Common Stock of said corporation to be filed with the Securities and Exchange
Commission under the Securities Exchange Act of 1933, as amended, and to any and
all amendments to said report, including without limitation, any filing pursuant
to Rule 462.
The undersigned hereby grants to said attorneys full power of substitution,
resubstitution 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 2nd day of April, 1998.
/s/ James V. Napier
-----------------------------
James V. Napier
<PAGE>
EXHIBIT 99
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS REGISTRATION RIGHTS AGREEMENT (this "Rights Agreement") is made and
entered into as of ____________, 19__, by and among C.W. Matthews Quarries,
Inc., a Georgia corporation ("Seller"), those shareholders of Seller appearing
on Schedule A and as signatories hereto (each, a "Holder" and collectively, the
----------
"Holders"), and Vulcan Materials Company, a New Jersey corporation (the
"Company").
R E C I T A L S
---------------
WHEREAS, pursuant to the terms of an Asset Purchase Agreement and Plan of
Reorganization, by and among the Seller, the shareholders of Seller, and the
Company, dated as of _______, 19__ (as the same may be amended, the
"Agreement"), the Seller, the shareholders of the Seller, and the Company shall
enter into a plan of "reorganization" within the meaning of Section 368(a)(1)(C)
of the Internal Revenue Code of 1986 (as amended), the Company shall acquire the
Purchased Assets (as defined in the Agreement) of Seller and, in exchange for
the Purchased Assets, Seller shall obtain the right to receive shares of the $
1.00 par value common stock of the Company (the "Company Common Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to Seller's
obligations under the Agreement, to grant the Holders certain registration
rights; and
WHEREAS, the Company and the Holders desire to define such registration
rights on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
-----------
As used in this Rights Agreement, the following terms have the respective
meanings set forth below:
Closing Date: shall mean the date on which the Agreement is consummated;
------------
Commission: shall mean the Securities and Exchange Commission or any other
----------
federal agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended;
------------
Holder: shall mean any holder of Registrable Securities;
------
<PAGE>
Holders' Agent: shall means the agent designated by the Holders to receive
--------------
notice under this Rights Agreement pursuant to Section 2(h) of this Rights
Agreement;
Person: shall mean an individual, partnership, joint stock company,
------
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
register, registered and registration: shall mean a registration effected
-------- ---------- ------------
by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the shares of Company Common Stock
----------------------
issued to the Holders under this Rights Agreement pursuant to the Agreement, and
(B) any securities of the Company issued as a dividend or other distribution
with respect to, or in exchange for or in replacement of, the shares of Company
Common Stock referred to in clause (A); provided, that Registrable Securities
shall not include (i) securities with respect to which a registration statement
with respect to the sale of such securities has become effective under the
Securities Act and all such securities have been disposed of in accordance with
such registration statement, (ii) such securities as are actually sold pursuant
to Rule 144 (or any successor provision thereto) under the Securities Act ("Rule
144"), or (iii) such securities as are acquired by the Company or any of its
subsidiaries;
Registration Expenses: shall mean all expenses incurred by the Company in
---------------------
compliance with Section 2(a) hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, the fees and expenses of one counsel for all Holders
not to exceed five thousand dollars ($5,000.00), blue sky fees and expenses and
the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company);
Security, Securities: shall have the meaning set forth in Section 2(1) of
--------------------
the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
--------------
Selling Expenses: shall mean all underwriting discounts and selling
----------------
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of or all of the Holders, other than fees and
expenses of one counsel for all Holders not to exceed five thousand dollars
($5,000.00) to be paid by the Company as Registration Expenses.
<PAGE>
2. REGISTRATION RIGHTS
-------------------
(a) Registration on Form S-3.
------------------------
(i) The Company shall qualify for registration on Form S-3 or
any comparable or successor form or forms the Registrable Securities to be
issued on the Closing Date by the Closing Date (the "Registration").
(ii) The Company shall effect the Registration (including,
without limitation, filing post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws and appropriate
compliance with the Securities Act) as would permit or facilitate the sale and
distribution of all such securities.
(b) Expenses of Registration. All Registration Expenses incurred in
------------------------
connection with the Registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their shares so registered.
(c) Registration Procedures. The Company will keep the Holders, as
-----------------------
applicable, advised in writing as to the initiation of the Registration and as
to the completion thereof. At its expense, the Company will:
(i) keep the Registration effective for a period of one (1) year
following the Closing Date or until the Holders, as applicable, have
completed the distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, if Rule 144 under the
Securities Act does not become available to permit resales of the
Registrable Securities after the first anniversary of the Closing Date and
such unavailability is not solely the result of actions or inactions of the
Holders, then the Company will keep the Registration effective until the
earliest of (A) the date on which Rule 144 becomes available for resales of
the Registrable Securities or (B) the second anniversary of the Closing
Date;
(ii) furnish to each Holder, and to any underwriter before filing with
the Commission, copies of any registration statement (including all
exhibits) and any prospectus forming a part thereof and any amendments and
supplements thereto (including all documents incorporated or deemed
incorporated by reference therein prior to the effectiveness of such
registration statement and including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule 424
under the Securities Act, which documents, other than documents
incorporated or deemed incorporated by reference, will be subject to the
review of the Holders and any such underwriter for a period of at least
five business days, and the Company shall not file any such registration
statement or such prospectus or any amendment or supplement to such
registration statement or prospectus to which any Holder or any such
underwriter shall reasonably object within five business days
<PAGE>
after the receipt thereof; a Holder or such underwriters, if any, shall be
deemed to have reasonably objected to such filing only if the registration
statement, amendment, prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission, or fails to
accomplish the objective provided in Section 2(a);
(iii) furnish to each Holder and to any underwriter, such number
of conformed copies of the applicable registration statement and of each
amendment and supplement thereto (in each case including all exhibits) and
such number of copies of the prospectus forming a part of such registration
statement (including each preliminary prospectus, any summary prospectus or
any term sheet (as such term is used in Rule 434 under the Securities Act))
and any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, including without limitation documents incorporated or deemed to
be incorporated by reference prior to the effectiveness of the
Registration, as each of the Holders or any such underwriter, from time to
time may reasonably request;
(iv) use its best efforts two business days prior to the filing
of any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent to
the effectiveness thereof, and in any event no later than the date such
document is filed with the Commission, to provide copies of such document
to the Holders' Agent and to any underwriter, and make representatives of
the Company available for discussion of such document and other customary
due diligence matters, and include in such document prior to the filing
thereof such information as any Holder or any such underwriter reasonably
may request;
(v) make available at reasonable times for inspection by the
Holders, any underwriter participating in any disposition pursuant to the
Registration and any attorney or accountant retained by the Holders or any
such underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and cause the officers, directors
and employees of the Company to supply all information reasonably requested
by the Holders and any such underwriters, attorneys or accountants in
connection with the Registration subsequent to the filing of the applicable
registration statement and prior to the effectiveness of the applicable
registration statement;
(vi) use its good faith reasonable best efforts (x) to register
or qualify all Registrable Securities and other securities covered by the
Registration under such other securities or blue sky laws of such States of
the United States of America where an exemption is not available and as the
sellers of Registrable Securities covered by the Registration shall
reasonably request, (y) to keep the Registration or qualification in effect
for so long as the applicable registration statement remains in effect, and
(z) to take any other action which may be reasonably necessary or advisable
to enable such sellers to consummate the disposition in such jurisdictions
<PAGE>
of the securities to be sold by such sellers, except that the Company shall
not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction where it is not so qualified, or
to subject itself to taxation in any such jurisdiction, or to execute a
general consent to service of process in effecting the Registration,
qualification or compliance, unless the Company is already subject to
service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(vii) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
Holders of Registrable Securities to enable the Holders thereof to
consummate the disposition of such Registrable Securities;
(viii) subject to Section 2(f) hereof, promptly notify each
Holder of Registrable Securities covered by a registration statement (A)
upon discovery that, or upon the happening of any event as a result of
which, the prospectus forming a part of such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, (B) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement or
the initiation of proceedings for that purpose, (C) of any request by the
Commission for (1) amendments to such registration statement or any
document incorporated or deemed to be incorporated by reference in any such
registration statement, (2) supplements to the prospectus forming a part of
such registration statement or (3) additional information, or (D) of the
receipt by the Company of any notification with respect to the suspension
of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, and at the request of any such Holder
promptly prepare and furnish to it a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ix) use its good faith reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration,
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction;
(x) if requested by any Holder, or any underwriter, promptly
incorporate in such registration statement or prospectus, pursuant to a
supplement or post effective amendment if necessary, such information as
the Holder and any
<PAGE>
underwriter may reasonably request to have included therein, including,
without limitation, information relating to the "plan of distribution" of
the Registrable Securities, information with respect to the principal
amount or number of shares of Registrable Securities being sold to such
underwriter, the purchase price being paid therefor and any other terms of
the offering of the Registrable Securities to be sold in such offering and
make all required filings of any such prospectus supplement or post-
effective amendment as soon as practicable after the Company is notified of
the matters to be incorporated in such prospectus supplement or post
effective amendment;
(xi) if requested by any Holder or Holders in connection with a
sale or distribution of no less than one-third of the Registrable
Securities issued on the Closing Date, furnish to such Holders, addressed
to them, an opinion of counsel for the Company, dated the date of the
closing under the underwriting agreement, if any, or the date of
effectiveness of the registration statement if the Registration is not an
underwritten offering, and use its best efforts to furnish to the Holders,
addressed to them, a "cold comfort" letter signed by the independent
certified public accountants who have certified the Company's financial
statements included in the Registration, covering substantially the same
matters with respect to the Registration (and the prospectus included
therein) and, in the case of such accountants' letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Holders may reasonably request;
(xii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least 12 months, but not more than 18
months, beginning with the first full calendar month after the effective
date of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(xiii) provide promptly to the Holders' Agent any document filed
by the Company with the Commission pursuant to the requirements of Section
13 and Section 15 of the Exchange Act; and
(xiv) cause all Registrable Securities included in the
Registration to be listed on each securities exchange on which securities
of the same class are then listed, or, if not then listed on any securities
exchange, to be eligible for trading in any over-the-counter market or
trading system in which securities of the same class are then traded.
<PAGE>
(d) Indemnification.
---------------
(i) The Company will indemnify each of the Holders, and as
applicable, each of its officers, directors, members and partners, and each
person controlling each of the Holders, with respect to the Registration which
has been effected pursuant to this Section 2, and each underwriter, if any, and
each person who controls any underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to the Registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act or the Exchange Act or any rule or regulation thereunder
applicable to the Company and relating to action or inaction required of the
Company in connection with the Registration, qualification or compliance, and
will reimburse each of the Holders, each of its officers, directors, members and
partners, and each person controlling each of the Holders, each such underwriter
and each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action, provided that the Company will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by the Holders
or underwriter and stated to be specifically for use therein.
(ii) Each of the Holders will indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such directors, officers,
partners, members, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of each of the Holders hereunder and under clause (vi) below shall
be limited to an amount equal to the net proceeds to such Holder of securities
sold as contemplated herein.
<PAGE>
(iii) Each party entitled to indemnification under this Section
2(d) (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the Indemnifying Party), and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 2 unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party,
in the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(d) is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with any underwritten public offering
contemplated by this Rights Agreement are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall be controlling.
<PAGE>
(vi) The foregoing indemnity or contribution agreement of the
Company and Holders is subject to the condition that, insofar as it relates to
any loss, claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the Commission at
the time the registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b) (the
"Final Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Holder (but only if such Holder was required
to deliver such Final Prospectus) if a copy of the Final Prospectus was
furnished to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
(e) Information by the Holders. Each of the Holders holding
--------------------------
securities included in the Registration shall furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably
required in connection with the Registration, qualification or compliance
referred to in this Section 2.
(f) Holdback Agreement. Notwithstanding the provisions of Sections
------------------
2(a) and 2(c), if the Chairman and Chief Executive Officer of the Company
determines in good faith that it is in the best interests of the Company (A) not
to disclose the existence of facts surrounding any proposed or pending
litigation, acquisition, disposition, strategic alliance or financing
transaction involving the Company or (B) for any purpose to comply with the
Securities Act, to suspend the registration rights set forth herein, the Company
may, by notice to the Holders in accordance with Section 4(a), suspend the
rights of the Holders to make sales for such a period of time as the Chairman
and Chief Executive Officer of the Company may reasonably determine; provided
that any Holder who requests the right to sell Registrable Securities will be
notified within twenty-four (24) hours as to whether that Holder may sell such
securities and; provided, further, that the Executive Committee of the Board of
Directors of the Company must approve any such decision by the Chairman and
Chief Executive Officer within one (1) week of the time that such a decision is
made or such suspension shall be lifted.
(g) Assignment. The registration rights set forth in Section 2
----------
hereof may be assigned, in whole or in part, to any transferee of Registrable
Securities (who shall be considered thereafter to be a Holder (provided that any
transferee who is not an affiliate of Holder shall be a Holder only with respect
to such Registrable Securities so acquired and any stock of the Company issued
as a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Registrable Securities) and shall be bound by all
obligations and limitations of this Rights Agreement).
(h) Holders' Agent. On the Closing Date, the Holders shall provide
--------------
the name and address of the Holders' Agent to the Company.
<PAGE>
3. INTERPRETATION OF THIS AGREEMENT
--------------------------------
(a) Directly or Indirectly. Where any provision in this Rights
----------------------
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(b) Governing Law. This Rights Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Georgia.
(c) Section Headings. The headings of the sections and subsections
----------------
of this Rights Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
4. MISCELLANEOUS
-------------
(a) Notices.
-------
(i) All communications under this Rights Agreement shall be in
writing and shall be delivered by facsimile or by hand or mailed by overnight
courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to
Vulcan Materials Company
P.O. Box 530187
Birmingham, AL 35253
or
One Metroplex Drive
Birmingham, Alabama 35209
Attention: Michael R. Mills, Esq.
(Telecopy: (205) 877-3094)
(B) if to the Holders, to
[Name and Address of Holders' Agent]
(ii) Any notice so addressed shall be deemed to be given: if
delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(b) Reproduction of Documents. This Rights Agreement and all
-------------------------
documents relating thereto, including, without limitation, any consents, waivers
and modifications which may hereafter be executed may be reproduced by the
Holder by any
<PAGE>
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Holders may destroy any original document so reproduced.
The parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by the Holders in the regular course of business) and that
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
(c) Third Party Beneficiaries; Successors and Assigns. Each of the
-------------------------------------------------
Holders as of the Closing Date of the Agreement is an intended beneficiary of
this Rights Agreement and shall be entitled to the benefits of this Rights
Agreement, subject to compliance with the obligations of this Rights Agreement
as applied to Holders hereunder. This Rights Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(d) Entire Agreement; Amendment and Waiver. This Rights Agreement
--------------------------------------
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Rights Agreement may be amended,
and the observance of any term of this Rights Agreement may be waived, with (and
only with) the written consent of the Company and the Holders of a majority of
the then outstanding Registrable Securities.
(e) Counterparts. This Rights Agreement may be executed in one or
------------
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) No Inconsistent Agreements. The Company will not hereafter enter
--------------------------
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Rights
Agreement.
(g) Remedies. Each Holder of Registrable Securities, in addition to
--------
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Rights Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Rights Agreement and hereby agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(h) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended and understood that all of the rights and
privileges of each of the Holders shall be enforceable to the fullest extent
permitted by law.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Rights Agreement as
of the date first set forth above.
SELLER:
------
ATTEST:
C.W. MATTHEWS QUARRIES, INC., a
Georgia corporation
___________________________
Name:______________________ By:_____________________________________
Title:_____________________ Robert E. Matthews
President
[CORPORATE SEAL]
HOLDERS:
-------
__________________________________(SEAL)
Robert E. Matthews
__________________________________(SEAL)
James C. Scott, Jr., individually;as Co-
Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of the
Michael Scott Matthews Subchapter S
Trust U/A May 22, 1995; and as Co-
Trustee of the Katherine Dawn Matthews
Subchapter S Trust U/A February 14, 1997
<PAGE>
__________________________________(SEAL)
Q. William Hammack, Jr., individually;
as Co-Trustee of the Charles Matthews
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Mary Matthews
Burton Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Luke
Doran Burton Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of the
Michael Scott Matthews Subchapter S
Trust U/A May 22, 1995; and as Co-
Trustee of the Katherine Dawn Matthews
Subchapter S Trust U/A February 14, 1997
__________________________________(SEAL)
Dianne Matthews, as Co-Trustee of the
Charles Matthews Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Mary Matthews Burton Subchapter S
Trust U/A December 12, 1994
COMPANY:
-------
ATTEST: VULCAN MATERIALS COMPANY, a New Jersey
corporation
___________________________
Name:______________________ By:_____________________________________
Title:_____________________ Name:________________________________
Title:_______________________________
[CORPORATE SEAL]
<PAGE>
SCHEDULE A
----------
Robert E. Matthews
_________________
_________, Georgia ________
James C. Scott, Jr.
_________________
_________, Georgia ________
Q. William Hammack, Jr.
_________________
_________, Georgia ________
Dianne Matthews
_________________
_________, Georgia ________
