UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 


 

SCHEDULE 14D-9/A

 

SOLICITATION/RECOMMENDATION
STATEMENT UNDER SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

(Amendment No. 19)

 


 

VULCAN MATERIALS COMPANY

(Name of Subject Company)

 


 

VULCAN MATERIALS COMPANY

(Name of Persons Filing Statement)

 


 

Common Stock, $1.00 par value per share

(Title of Class of Securities)

 


 

929160109

(CUSIP Number of Class of Securities)

 


 

Robert A. Wason IV, Esq.
Senior Vice President and General Counsel
Vulcan Materials Company
1200 Urban Center Drive
Birmingham, Alabama 35242
Telephone:  (205) 298-3000

(Name, address, and telephone number of persons authorized to receive notices and
communications on behalf of the person filing statement)

 

Copies to:

Edward D. Herlihy, Esq.
Igor Kirman, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000

 

o                                   Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

 

 


 


 

This Amendment No. 19 to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended from time to time, the “Schedule 14D-9”) originally filed by Vulcan Materials Company, a New Jersey corporation (“Vulcan” or the “Company”), with the Securities and Exchange Commission on December 22, 2011 and subsequently amended, relating to the unsolicited exchange offer by Martin Marietta Materials, Inc. (“Martin Marietta”), a North Carolina corporation, to exchange each of the issued and outstanding shares of common stock, par value $1.00 per share, of Vulcan (the “Vulcan Common Stock”) for 0.50 shares of the common stock (the “Exchange Ratio”), par value $0.01 per share, of Martin Marietta, together with the associated preferred stock purchase rights (the “Martin Marietta Common Stock”).

 

Except as specifically noted herein, the information set forth in the Schedule 14D-9 remains unchanged.  Capitalized terms used but not defined in this Amendment No. 19 have the meanings ascribed to them in the Schedule 14D-9.

 

Item 2. Identity and Background of Filing Person; Item 4. The Solicitation or Recommendation; Item 8. Additional Information

 

Item 2 of the Statement, Item 4 of the Statement and Item 8 of the Statement are hereby amended and supplemented by adding the following at the end of the section entitled “Exchange Offer” in Item 2, the section entitled “Background of the Offer” in Item 4 and the subsection entitled “Litigation—Delaware Litigation” in Item 8, respectively:

 

On May 14, 2012, Martin Marietta issued a press release stating, in part, that “as required by the Court of Chancery’s order, Martin Marietta is, among other things, terminating its exchange offer and withdrawing its related registration statement, withdrawing its Hart-Scott Rodino Act filing in connection with its exchange offer, and withdrawing its nominees for election at the Vulcan 2012 annual meeting and terminating the related solicitation of proxies. Any ‘BLUE’ proxy cards and ‘BLUE’ voting instruction forms that were previously circulated and have or may be received will not be effective, will not be voted by Martin Marietta at the Vulcan 2012 annual meeting and will be discarded.”  Martin Marietta also sent a letter to Vulcan withdrawing its nominees to Vulcan’s Board of Directors and a letter to the SEC withdrawing its registration statement for the Offer on Form S-4.

 

On May 15, 2012, Martin Marietta amended its Schedule TO to report its termination of the Offer and that Martin Marietta “has not accepted any shares of Vulcan common stock tendered in the Offer and has instructed the Exchange Agent to promptly return any tendered shares of Vulcan common stock to the tendering shareholders.”

 



 

SIGNATURES

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete, and correct.

 

 

 

VULCAN MATERIALS COMPANY

 

 

 

 

 

 

 

 

Date: May 15, 2012

 

By:

/s/ Daniel F. Sansone

 

 

 

Name: Daniel F. Sansone

 

 

 

Title: Executive Vice President and Chief Financial Officer

 



 

EXHIBIT INDEX

 

 

(a)(1)

 

 

Press release issued by Vulcan Materials Company, dated December 12, 2011 (incorporated by reference to Exhibit 99.1 of Vulcan’s Current Report on Form 8-K filed on December 12, 2011)

(a)(2)

 

 

Press release issued by Vulcan Materials Company, dated December 22, 2011 *

(a)(3)

 

 

Letter to Vulcan Shareholders, dated December 22, 2011 *

(a)(4)

 

 

Opinion of Goldman Sachs, dated December 19, 2011 (included as Annex B to this Schedule 14D-9)

(a)(5)

 

 

Letter to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated December 22, 2011)

(a)(6)

 

 

Content from the Vulcan Materials Company website regarding Martin Marietta’s unsolicited exchange offer (incorporated by reference to Vulcan’s Form 425 filing dated December 22, 2011)

(a)(7)

 

 

Communication to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated December 28, 2011)

(a)(8)

 

 

Communication to Customers (incorporated by reference to Vulcan’s Form 425 filing dated December 28, 2011)

(a)(9)

 

 

Communication to Suppliers (incorporated by reference to Vulcan’s Form 425 filing dated December 28, 2011)

(a)(10)

 

 

Communication to Government Officials (incorporated by reference to Vulcan’s Form 425 filing dated December 28, 2011)

(a)(11)

 

 

Communication and Frequently Asked Questions Material to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated December 29, 2011)

(a)(12)

 

 

Investor Presentation (incorporated by reference to Vulcan’s Form 425 filing dated January 5, 2012)

(a)(13)

 

 

Press release issued by Vulcan Materials Company, dated January 5, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated January 5, 2012)

(a)(14)

 

 

Communication to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated January 5, 2012)

(a)(15)

 

 

Press release issued by Vulcan Materials Company, dated January 10, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated January 10, 2012)

(a)(16)

 

 

Press release issued by Vulcan Materials Company, dated January 24, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated January 24, 2012)

(a)(17)

 

 

Earnings release issued by Vulcan Materials Company, dated February 16, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated February 16, 2012)

(a)(18)

 

 

Slides used during earnings release conference call held on February 16, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated February 16, 2012)

(a)(19)

 

 

Excerpt from transcript of earnings release conference call held on February 16, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated February 16, 2012)

(a)(20)

 

 

Communication to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated February 23, 2012)

(a)(21)

 

 

Communication to Vulcan Materials Company Employees (incorporated by reference to Vulcan’s Form 425 filing dated March 16, 2012)

(a)(22)

 

 

Press release issued by Vulcan Materials Company, dated March 30, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated March 30, 2012)

(a)(23)

 

 

Investor Presentation (incorporated by reference to Vulcan’s Form 425 filing dated March 30, 2012)

(a)(24)

 

 

Earnings release issued by Vulcan Materials Company, dated April 26, 2012

 



 

 

 

 

 

(incorporated by reference to Vulcan’s Form 425 filing dated April 26, 2012)

(a)(25)

 

 

Slides used during earnings release conference call held on April 26, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated April 26, 2012)

(a)(26)

 

 

Excerpt from transcript of earnings release conference call held on April 26, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated April 26, 2012)

(a)(27)

 

 

Press release issued by Vulcan Materials Company, dated April 30, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated April 30, 2012)

(a)(28)

 

 

Letter to Vulcan Materials Company shareholders, dated April 30, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated April 30, 2012)

(a)(29)

 

 

Content from the Vulcan Materials Company website regarding Martin Marietta’s unsolicited exchange offer (incorporated by reference to Vulcan’s Form 425 filing dated April 30, 2012)

(a)(30)

 

 

Press release issued by Vulcan Materials Company, dated May 4, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated May 4, 2012)

(a)(31)

 

 

Investor Presentation (incorporated by reference to Vulcan’s Form 425 filing dated May 8, 2012)

(a)(32)

 

 

Content from the Vulcan Materials Company website regarding Martin Marietta’s unsolicited exchange offer (incorporated by reference to Vulcan’s Form 425 filing dated May 8, 2012)

(a)(33)

 

 

Press release issued by Vulcan Materials Company, dated May 14, 2012 (incorporated by reference to Vulcan’s Form 425 filing dated May 14, 2012)

(a)(34)

 

 

Martin Marietta Materials Inc. v. Vulcan Materials Company, No. 7102-CS, Final Order and Judgment, Delaware Court of Chancery, entered May 14, 2012 **

(a)(35)

 

 

Martin Marietta Materials Inc. v. Vulcan Materials Company, No. 7102-CS, Order denying Motion to Stay Pending Appeal, Delaware Court of Chancery, entered May 14, 2012 **

(a)(36)

 

 

Investor Presentation (incorporated by reference to Vulcan’s Form 425 filing dated May 14, 2012)

(e)(1)

 

 

Excerpts from the Vulcan Definitive Proxy Statement on Schedule 14A, dated and filed with the SEC on March 31, 2011

(e)(2)

 

 

Unfunded Supplemental Benefit Plan for Salaried Employees, as amended (incorporated by reference to Exhibit 10.4 to Vulcan’s Current Report on Form 8-K filed with the SEC on December 17, 2008)

(e)(3)

 

 

Amendment to the Unfunded Supplemental Benefit Plan for Salaried Employees (incorporated by reference to Exhibit 10(c) to Legacy Vulcan Corp.’s Annual Report on Form 10-K for the year ended December 31, 2001, and filed with the SEC on March 27, 2002)

(e)(4)

 

 

Vulcan Executive Deferred Compensation Plan, as amended (incorporated by reference to Exhibit 10.1 to Vulcan’s Current Report on Form 8-K filed with the SEC on December 17, 2008)

(e)(5)

 

 

Vulcan Deferred Compensation Plan for Directors Who Are Not Employees of the Company, as amended (incorporated by reference to Exhibit 10.5 to Vulcan’s Current Report on Form 8-K filed with the SEC on December 17, 2008)

(e)(6)

 

 

Vulcan Amended and Restated 2006 Omnibus Long-Term Incentive Plan (incorporated by reference to Appendix A to Vulcan’s Proxy Statement on Schedule 14A filed with the SEC on March 31, 2011)

(e)(7)

 

 

Vulcan 1996 Long-Term Incentive Plan (incorporated by reference to Exhibit B to Legacy Vulcan Corp’s Proxy Statement on Schedule 14A filed with the SEC on April 10, 2006)

(e)(8)

 

 

Vulcan Deferred Stock Plan for Nonemployee Directors of the Company, as amended (incorporated by reference to Exhibit 10(f) to Legacy Vulcan Corp.’s

 



 

 

 

 

 

Annual Report on Form 10-K for the year ended December 31, 2001, and filed with the SEC on March 27, 2002)

(e)(9)

 

 

Vulcan Restricted Stock Plan for Nonemployee Directors of the Company, as amended (incorporated by reference to Exhibit 10.6 to Vulcan’s Current Report on Form 8-K filed with the SEC on December 17, 2008)

(e)(10)

 

 

Form Stock Option Award Agreement (incorporated by reference to Exhibit 10(o) to Legacy Vulcan Corp.’s Report on Form 8-K filed December 20, 2005)

(e)(11)

 

 

Form Director Deferred Stock Unit Award Agreement (incorporated by reference to Exhibit 10.9 to the Company’s Current Report on Form 8-K filed December 17, 2008)

(e)(12)

 

 

Form Performance Share Unit Award Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed March 11, 2010)

(e)(13)

 

 

Form Stock Only Stock Appreciation Rights Agreement (incorporated by reference to Exhibit 10(a) to the Company’s Current Report on Form 8-K filed November 15, 2011)

(e)(14)

 

 

Form Stock Only Stock Appreciation Rights Agreement (incorporated by reference to Exhibit 10(p) to Legacy Vulcan Corp.’s Report on Form 10-K filed February 26, 2007)

(e)(15)

 

 

Form Employee Deferred Stock Unit Award Amended Agreement (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K filed December 17, 2008)

(e)(16)

 

 

Change of Control Employment Agreement Form (Double Trigger) (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 2, 2008)

(e)(17)

 

 

Change of Control Employment Agreement Form (Modified Double Trigger) (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on October 2, 2008)

(e)(18)

 

 

Change of Control and Non-Competition Agreement with John R. McPherson, dated as of October 7, 2011 (incorporated by reference to Exhibit 10.1 to Vulcan’s Current Report on Form 8-K filed with the SEC on October 11, 2011)

(e)(19)

 

 

Independent Contractor Consulting Agreement with John R. McPherson, dated as of October 7, 2011 (incorporated by reference to Exhibit 10.2 to Vulcan’s Current Report on Form 8-K filed with the SEC on October 11, 2011)

(e)(20)

 

 

Supplemental Executive Retirement Agreement (incorporated as Exhibit 10 to Legacy Vulcan Corp.’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001 filed on November 2, 2001)

(e)(21)

 

 

Vulcan Executive Incentive Plan, as amended (incorporated by reference to Exhibit 10.2 to Vulcan’s Current Report on Form 8-K filed with the SEC on December 17, 2008)

 


* Filed as exhibits to the Schedule 14D-9 filed on December 22, 2011

** Filed as exhibits to the Schedule 14D-9/A filed on May 14, 2012