VULCAN MATERIALS COMPANY
DEFERRED COMPENSATION PLAN
FOR DIRECTORS WHO ARE NOT EMPLOYEES OF THE COMPANY
As Amended on December 11, 2008
1.
Eligibility and Purpose
Each member of the
Board of Directors (the “Board”) of Vulcan Materials
Company (the “Company”) who is not an employee of the
Company or its subsidiaries shall be eligible to participate in the
Vulcan Materials Company Deferred Compensation Plan for Directors
Who Are Not Employees of the Company (the “Plan”). Any
member of the Board who elects to participate in the Plan
(“Director”) shall thereby defer the receipt of all or
any portion of the annual retainer, meeting and committee fees
payable by the Company to such Director for serving as a member of
the Board or one or more of its committees (the “Deferrable
Compensation”).
2. Deferral
of Compensation
A Director may
elect to defer all or any portion of the Deferrable Compensation by
executing a form prescribed by the Secretary of the Company and
delivering such form to the Secretary prior to the first day of the
calendar year for which the election is to be effective. In the
calendar year that a Director first becomes eligible to participate
in the Plan, such Director may elect to defer all or any portion of
the Deferrable Compensation, provided that the election form is
delivered to the Secretary within thirty (30) days after the
Director first becomes eligible to participate in the Plan for such
year. An election made in this manner will be applicable only to
Deferrable Compensation earned after the date of the election.
Elections made pursuant to this Section 2 shall be
irrevocable. The amount of Deferrable Compensation deferred shall
be paid or distributed to the Director in accordance with the
provisions of Section 5 or Section 6, below.
3. Deferred
Compensation Account
The Company shall
establish a deferred compensation account (the
“Account”) for the Director. As of the date payments of
Deferrable Compensation otherwise would be made to the Director,
the Company shall credit to the Account, in cash or stock
equivalents, or a combination thereof, as hereinafter provided,
that amount of the Deferrable Compensation which the Director has
elected to defer.
4. Cash or
Stock Election
(a) As of the
date payments of Deferrable Compensation otherwise would be made to
the Director, the amount due the Director shall be credited to the
Account either as a cash allotment or as a stock allotment, or a
portion to each, as the Director shall elect at the time the
deferral election is made.
(b) If a cash
allotment is elected in whole or in part, the Account shall be
credited with the dollar amount of the allotment. Interest (at the
rate described below) on the Average Daily Balance (computed as
described below) shall be credited to the Account as of the last
day of each calendar month before and after the termination of the
Director’s service and after the Director’s death until
the total balance in the Account has been paid out in accordance
with the provisions of Section 5 or Section 6, below. The
interest rate for each calendar month shall be the composite 30-day
offering rate for prime commercial paper placed through dealers
(rated A-1 by Standard & Poor’s Corporation or its
successor and P-1 by Moody’s Investors Service, Inc., or its
successor) for the last business day of the immediately preceding
calendar month as published by the Federal Reserve Bank of New
York. The “Average Daily Balance” shall be the quotient
obtained by dividing the sum of the closing balance in the Account
at the end of each calendar day in a calendar month by the number
of days in such calendar month.
(c)(1) If a stock
allotment is elected in whole or in part, the Account shall be
credited with a stock equivalent that shall be equal to the number
of full and fractional shares of the Company’s Common Stock,
par value $1.00 per share (the “Common Stock”), that
could be purchased with the dollar amount of the allotment using
the Average Closing Price (as defined below) of the Common Stock
for the twenty (20) trading days ending on the day preceding
the date the Account is so credited. The “Average Closing
Price” of the Common Stock means the average of the daily
closing prices for a share of the Common Stock for the applicable
twenty (20) trading days on the Composite Tape for New York
Stock Exchange — Listed Stocks, or, if the Common Stock is
not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), on which the
Common Stock is listed, or, if the Common Stock is not listed on
any such exchange, the average of the daily closing bid quotations
with respect to a share of the Common Stock for such twenty
(20) trading days on the National Association of Securities
Dealers, Inc., Automated Quotations System or any system then in
use, or, if no such quotations are available, the fair market value
of a share of the Common Stock as determined by a majority of the
Board; provided, however, that if a Change in Control (as defined
below) shall have occurred, then such determination shall be made
by a majority of the Continuing Directors (as defined
below).
(2) The
Account also shall be credited as of the payment date for each
dividend on the Common Stock with additional stock equivalents
computed as follows: The dividend paid, either in cash or property
(other than Common Stock), upon a share of Common Stock to a
shareholder of record shall be multiplied by the number of stock
equivalents in the Account and the product thereof shall be divided
by the Average Closing Price of the Common Stock for the twenty
(20) trading days ending on the day preceding the dividend
payment date. In the case of dividends payable in property, the
amount paid shall be based on the fair market value of the property
at the time of distribution of the dividend, as determined by a
majority of the Board; provided, however, that if a Change in
Control shall have occurred, then such determination shall be made
by a majority of the Continuing Directors.
(3) In the
event of any change in the Common Stock, upon which the stock
equivalency hereunder is based, by reason of a merger,
consolidation, reorganization, recapitalization, stock dividend,
stock split, combination or exchange of shares, or any other change
in corporate structure, the number of shares credited to the
Account shall be adjusted in such manner as a majority of
the
2
Board shall
determine to be fair under the circumstances; provided, however,
that if a Change in Control shall have occurred, then such
determination shall be made by a majority of the Continuing
Directors.
(a) At the
Director’s election, made at the time that a deferral
election is made, the balance in the Account shall be paid out to
the Director when:
(1) the
Director incurs a “separation from service” with the
Company within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”);
or
(2) the period of
years which the Director specifies has elapsed from the date
deferral of Deferrable Compensation.
All elections
as to the time at which the payout will commence shall be
irrevocable except as otherwise provided in
Section 7(b).
(b) The
balance in the Account shall be paid either in a lump sum or, at
the Director’s election, in approximately equal annual
installments over a period of years not to exceed ten (10) years
(the “Payout Period”). Such election shall be made by
executing a form prescribed by the Secretary of the Company and
delivering such form to the Secretary at the time that the deferral
election is made. A director may change his election for amounts to
be earned in any future calendar year at any time prior to the
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