EX-10.2






Exhibit 10.2




EXECUTIVE INCENTIVE PLAN

as amended effective December 11, 2008





	1.	 	Name and Purpose






	 	(a)	 	Vulcan Materials Company (“Company”) has established an incentive compensation
plan known as the “Vulcan Materials Company Executive Incentive Plan” (“Plan”), as set
forth herein and as it may be amended from time to time. The Plan is a successor to
the Vulcan Materials Company Management Incentive Plan with respect to any senior
executive of the Corporation who participates in the Plan. The purpose of the Plan is
to promote the profitability of the Corporation by providing incentives and rewards for
those senior executives of the Corporation who contribute to the operating progress and
earning power of the Corporation, and who are potentially subject to the deduction
limit in Section 162(m) of the Internal Revenue Code of 1986 (“Code”).
	 
	 	(b)	 	The Plan became effective as of January 1, 2001. This amendment and
restatement is effective as of December 11, 2008 (“Effective Date”). The Plan shall
remain in effect until the Board amends or terminates the Plan pursuant to Section 15
below.






	2.	 	Definitions





          As used in the Plan, unless the context otherwise requires, each of the following terms has
the meaning set forth below:





	 	(a)	 	“Award Percentage” means the maximum percentage of the Incentive Reserve that a
Covered Employee may receive for a Year in which the Covered Employee is eligible to
participate in the Plan, as determined by the Committee.
	 
	 	(b)	 	“Balance Sheet” means the consolidated statement of the Corporation’s financial
position certified by the Public Accountants and published from year to year in the
Corporation’s Annual Report to Shareholders.
	 
	 	(c)	 	“Board of Directors” or “Board” means the Board of Directors of the Company.
	 
	 	(d)	 	“Change in Control” means a change in control as defined in the Vulcan
Materials Company Change in Control Severance Plan or any successor plan.
	 
	 	(e)	 	“Code” means the Internal Revenue Code of 1986, as amended from time to time.
Any references to a particular section of the Code shall be deemed to include any
successor provision thereto.
	 
	 	(f)	 	“Committee” means the Compensation Committee of the Board of Directors, which
consists solely of two or more “outside directors” within the meaning of Section 162(m)
of the Code.
	 
	 	(g)	 	“Common Stock” means the common stock of the Company with a par value of $1.00
per share.
	 
	 	(h)	 	“Company” means Vulcan Materials Company, a New Jersey corporation.
	 
	 	(i)	 	“Consolidated Net Earnings” for any Year means the sum of (i) the amount of net
earnings (before any deduction for dividends) as reported in the Statement of Earnings,
except that items which are classified therein as extraordinary items shall be excluded
in the computation of Consolidated Net Earnings and (ii) interest on long-term debt
included in Net Capital, such interest to include charges or credits arising out of
premium or discount paid or received with respect to such debt, and such interest to be
adjusted for the provision for federal and state income taxes attributable thereto.
	 
	 	(j)	 	“Corporation” means the Company and its Subsidiaries.




 









 






	 	(k)	 	“Covered Employee” means any individual who is a “covered employee” within the
meaning of Section 162(m) of the Code on the last day of the Company’s taxable year for
which the individual is selected to participate in the Plan, and each other senior
executive of the Corporation who is designated by the Committee as a Covered Employee
for a particular Year.
	 
	 	(l)	 	“Incentive Award” means the amount payable to a Covered Employee under the
Plan, as determined by the Committee on or after the end of each Year for which the
Covered Employee is eligible to participate in the Plan.
	 
	 	(m)	 	“Incentive Reserve” means the amount determined under Section 5 below that is
available for the payment of awards under the Plan for a Year; provided that such
amount is established and maintained as a general ledger entry solely for the Company’s
convenience and is not intended to be a funding mechanism for awards under the Plan.
	 
	 	(n)	 	“Net Capital” for any Year means the sum of (1) long-term debt (comprising
bonds, debentures and promissory notes having a maturity at the time of creation of
more than one year), (2) issued capital stock, (3) capital in excess of par value and
(4) earnings retained in the business and reserves created by appropriations therefrom,
less the cost of treasury stock, all as shown in the Balance Sheet as of the end of the
preceding Year, with appropriate prorated adjustment, as approved by the Public
Accountants in accordance with the Plan, for any change during the Year arising from
increase or decrease of outstanding principal of long-term debt or from original
issuance or redemption and retirement of capital stock.
	 
	 	(o)	 	“Public Accountants” means the independent public accountants employed by the
Company from year to year for the purpose of submitting an opinion on the Corporation’s
Statement of Earnings.
	 
	 	(p)	 	“Statement of Earnings” means the consolidated statement of the Corporation’s
earnings certified by the Public Accountants and published from year to year in the
Corporation’s Annual Report to Shareholders.
	 
	 	(q)	 	“Subsidiary” means any corporation, the majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company, and that is not itself
a publicly-held corporation within the meaning of Section 162(m) of the Code.
	 
	 	(r)	 	“Target Award” means a target annual bonus established by the Committee to be
paid pursuant to Section 13 in the event of Change in Control.
	 
	 	(s)	 	“Year” means a fiscal year or period covered by a Statement of Earnings and for
which the Plan is in effect.






	3.	 	Regulations





          The Committee shall have the power to adopt eligibility and other rules and regulations not
inconsistent with the provisions of the Plan for the administration thereof, and to alter, amend or
revoke any rule or regulation so adopted.





	4.	 	The Committee and Its Functions






	 	(a)	 	Subject to the provisions of this Plan, full power and authority to interpret
and administer the Plan are vested in the Committee. The Committee shall have the
discretionary authority to act with respect to each Covered Employee. The Committee is
authorized to conduct such consultations with officers and other executives of the
Company as it shall deem necessary or appropriate in the performance of its duties and
responsibilities with respect to the Plan. The Committee’s discretion in interpreting
and administering the Plan with respect to Covered Employees is specifically subject to
the terms and conditions of Section 7 below.




 









 






	 	(b)	 	Without limiting the generality of Section 4(a) above, and except as otherwise
specifically provided in this Plan, the Committee shall have the exclusive authority
to: (i) interpret and administer the Plan and any instrument or agreement relating to
the Plan or an Incentive Award; (ii) establish, amend, suspend, or waive rules and
regulations for the administration of the Plan; (iii) engage or employ from time to
time such counsel, advisers, consultants, accountants, analysts and other persons as it
may deem necessary or expedient for the performance of such functions; (iv) appoint
such agents as it shall deem appropriate for the proper administration of the Plan; (v)
determine the rights of Covered Employees in the event of death, disability,
termination, Change in Control and the like; and (vi) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan. All designations, determinations, interpretations and
other decisions by the Committee under or with respect to the Plan or any Incentive
Award under the Plan shall be final, conclusive, and binding upon all persons and
entities, including the Company, any Subsidiary, any employee of the Corporation, any
beneficiary and any shareholder. No determination of the Committee shall be subject to
de novo review if challenged in court.






	5.	 	Incentive Reserve; Annual Provision; Annual Review of Earnings Factor; Annual Awards






	 	(a)	 	The Corporation shall meet the performance target under the Plan for any Year
if Consolidated Net Earnings exceed 6% of Net Capital for the Year. For any Year in
which the Corporation meets the performance target, the Committee may establish an
Incentive Reserve equal to 4% of Consolidated Net Earnings in excess of 6% of Net
Capital.
	 
	 	(b)	 	As promptly as practicable after the end of each Year, the Public Accountants
shall determine and certify in a report to the Committee the maximum amount, as
determined under Section 5(a) above, available for credit to the Incentive Reserve for
the such Year.
	 
	 	(c)	 	As promptly as practicable after its receipt of the report described in Section
5(b) above, the Committee shall certify in writing whether the performance target
described in Section 5(a), above, was attained for the Year and, if so, shall certify
in writing the Incentive Awards, if any, that will be made to Covered Employees for the
Year, pursuant to Section 9 below. The Committee may, in its sole discretion, make no
Incentive Awards for a particular Year. If the Committee determines that Incentive
Awards shall be made under the Plan for a Year, the Committee shall make and allot such
individual Incentive Awards to Covered Employees in accordance with the provisions of
Section 9(a) below.






	6.	 	Change in Fiscal Year





          In the event of a change in the Corporation’s fiscal year, the Plan shall apply, with prorated
adjustment of Net Capital, to any intermediate period of less than 12 months, and shall then apply
to each subsequent fiscal year.





	7.	 	Code Section 162(m) Compliance





          It is the intent of the Company that Incentive Awards made to persons who are “covered
employees” within the meaning of Section 162(m) of the Code shall constitute “qualified
performance-based compensation” satisfying the requirements of Section 162(m) of the Code.
Accordingly, the provisions of the Plan shall be interpreted in a manner consistent with Section
162(m) of the Code. However, the Change in Control payments authorized under Section 13 shall be
made without regard to whether the payments satisfy the requirements of Section 162(m) of the Code.
If any other provision of the Plan or an Incentive Award is intended to but does not comply with,
or is inconsistent with, the requirements of Section 162(m) of the Code, such provision shall be
construed or deemed amended to the extent necessary to conform to and comply with such
requirements.





	8.	 	Eligibility





          The Committee shall select each senior executive of the Corporation who shall be eligible to
participate in the Plan for a particular Year and shall set the Award Percentage for each such
senior executive for such Year. The
Committee shall also establish a Target Award for each senior executive. No member of the
Committee shall be




 









 







eligible for an Incentive Award under the Plan. A senior executive who is eligible for an Incentive Award under the Plan for a Year shall not be eligible in the same Year
for an incentive award under any other annual incentive plan maintained by the Corporation. A
senior executive who is otherwise eligible for an Incentive Award under the Plan for a particular
Year shall not be eligible for an Incentive Award under the Plan unless he is an employee of the
Corporation on the last day of such year; provided that a senior executive who is otherwise
eligible for an Incentive Award under the Plan for a particular Year and who terminates employment
with the Corporation during that Year by reason of his or her death, disability, or retirement may,
in the discretion of the Committee, be eligible for a prorated Incentive Award.





	9.	 	Annual Awards and Time of Payment






	 	(a)	 	Subject to the provisions of Section 5, above, and the provisions of this
Section 9(a), a Covered Employee may be granted an Incentive Award for a particular
Year in such individual amount as the Committee, in accordance with the Plan, may in
its discretion determine. In selecting Covered Employees, setting Award Percentages,
and fixing the amount of any Incentive Awards thereunder, the Committee shall take into
consideration the Award Percentage for each Covered Employee and the present and
potential contribution of each Covered Employee to the operating progress and earning
power of the Corporation.
	 
	 	(b)	 	If the Committee determines that it will establish an Incentive Reserve for a
Year, the Committee shall set forth in writing, during the first ninety days of the
Year, (i) which senior executives shall participate in the Plan as Covered Employees
for the Year, and (ii) the Award Percentage for each Covered Employee. In no event
shall the sum of the Award Percentages of all Covered Employees for a Year exceed 100%
of the Incentive Reserve for such Year.
	 
	 	(c)	 	The Committee may exercise its discretion to reduce (but not to increase) the
actual Incentive Award of any Covered Employee to an amount less than the Covered
Employee’s Award Percentage for the Year. In no event shall a reduction in the amount
awarded to one Covered Employee increase the amount that is available for awards to any
other Covered Employee.
	 
	 	(d)	 	Each Incentive Award payable under the Plan shall be paid no later than two and
one-half months after the close of the Year for which such Incentive Award is payable.
Incentive Awards shall be paid in accordance with such conditions as the Committee may
in accordance with the Plan prescribe.
	 
	 	(e)	 	The amount of each payment of an Incentive Award shall, when paid, be subject
to a deduction for any and all taxes required by any government to be withheld by the
Corporation and paid over to such government for the account of the Covered Employee to
whom the award was made. The payment to any such government of an amount so withheld
shall, for the purposes of the Plan, be deemed a payment thereof to the employee or his
or her legal representatives.






	10.	 	Awards Payable in Cash






	 	(a)	 	Incentive Awards under the Plan for any Year shall be paid in cash.
	 
	 	(b)	 	With respect to each Incentive Award under the Plan, the amount thereof shall
be held or provided by the Company or the appropriate Subsidiary (without liability for
interest) for payment to the Covered Employee or his or her legal representatives, as
the case may be, as provided in Section 9 above.






	11.	 	Report of Awards





          As promptly as reasonably practicable after Incentive Awards for a particular Year have been
determined in accordance with the Plan, a report shall be prepared listing: (a) the names of the
Covered Employees to whom Incentive Awards have been made for such Year and the amount of each such
Incentive Award, and (b) if any
Incentive Award is to be payable in installments under Section 10(b) above, appropriate orders and
directions respecting the payment thereof.





 









 









	12.	 	Administrative Expenses





          All costs of the Plan, including such fee, retainer, or other remuneration payment to members
of the Committee as may from time to time be authorized by the Board of Directors, and all expenses
incurred by the Committee in interpreting and administering the Plan, shall be borne by the
Corporation and not charged against the Incentive Reserve.





	13.	 	Change in Control Payments






	 	(a)	 	In the event of a Change in Control, Covered Employees shall be entitled to
receive payment of awards under the Plan in accordance with this Section 13. Awards
under this Section 13 are not required to comply with Section 7 of the Plan or with the
provisions of Section 162(m) of the Code.
	 
	 	(b)	 	If a Change in Control occurs after Incentive Awards for a particular Year have
been determined by the Committee in accordance with the Plan, but before the payment of
such awards, then such Incentive Awards shall be paid as promptly as reasonably
practicable, but not more than 30 days, after such Change in Control, and no later than
two and one-half months after the close of the Year for which such Incentive Award is
payable.
	 
	 	(c)	 	If a Change in Control occurs before Incentive Awards for such Year have been
determined by the Committee,
	 
	 	 	 	     (i) each individual who was a Covered Employee at the end of such Year shall
be entitled to receive an award under this Section 13(c)(i) for such Year in an
amount at least equal to the greater of (A) the average of such individual’s bonuses
under the Company’s Management Incentive Plan and any comparable bonuses under any
successor plan thereto (including the Plan) for each Year during the three preceding
Years in which the individual participated in such plan, or (B) the Covered
Employee’s Target Award, and
	 
	 	 	 	     (ii) each individual whose employment terminated during such Year as a result
of retirement, disability, or death and who was a Covered Employee at the time of
such termination shall be entitled to receive an award under this Section 13(c)(ii)
for such partial Year in an amount at least equal to the greater of (A) the average
of such individual’s bonuses under the Company’s Management Incentive Plan and any
comparable bonuses under any successor plan thereto (including the Plan) for each
Year during the three preceding Years in which the individual participated in such
plan, or (B) the Covered Employee’s Target Award, multiplied in either case by a
fraction the numerator of which is the number of months (whole or partial) in such
Year through the date of such termination and the denominator of which is 12.
	 
	 	(d)	 	If such Change in Control occurs before the designation of Covered Employees
for such Year, the Covered Employees designated for the previous Year as in effect at
the end of such previous Year shall be applicable and shall be used in calculating
awards provided for under Section 13(c).
	 
	 	(e)	 	If, after the occurrence of a Change in Control, the Plan is continued in
effect without material amendment and the Board of Directors and the Committee confirm
that the Plan will be interpreted and administered substantially in accordance with
past practices, then payment of awards to which individuals may become entitled under
subparagraph (c) of this Section 13 shall be made in accordance with Sections 9(d) and
10 above. If, however, the Plan is terminated, suspended or materially amended, or if
the Board of Directors and the Committee do not so confirm after the occurrence of a
Change in Control, then payment of awards to which individuals may become entitled
under subparagraph (c) of this Section 13 shall be made as promptly as practicable, but
not more than 30 days, after such Change in Control, and no later than two and one-half
months after the close of the Year for which such Incentive Award is payable.




 









 












	 	(f)	 	In the event of a Change in Control, nothing in this Section 13 shall preclude
the payment of Incentive Awards under the Plan or otherwise in an amount in excess of
the amount required to be paid under this Section 13.
	 
	 	(g)	 	The Company shall promptly reimburse an individual entitled to an Incentive
Award or other awards under this Section 13 for all legal fees and expenses reasonably
incurred in successfully seeking to obtain or enforce any right or benefit provided
under this Section 13. Any reimbursement of legal fees paid to an individual pursuant
to this paragraph shall be paid no later than the end of the individual’s taxable year
next following the individual’s taxable year of the individual in which the related
expense is incurred, and, if paid on account of a termination of employment, no earlier
than the seventh month following the individual’s separation from service.






	14.	 	Unfunded Plan






	 	 	 	The Plan shall be an unfunded plan. Benefits under the Plan shall be paid from the
general assets of the Corporation.






	15.	 	Termination, Suspension and Amendment






	 	(a)	 	The Board of Directors may at any time and from time to time alter, amend,
suspend or terminate the Plan; provided, however, that no provision of the Plan
relating to a Change in Control nor any definition of a term used in any such provision
may be altered, amended, suspended, or terminated after the occurrence of a Change in
Control and further provided that unless the Board of Directors specifically provides
otherwise, any revision or amendment that would cause the Plan to fail to comply with
the requirements of any applicable law, regulation or rule if such amendment were not
approved by the shareholders of the Company shall not be effective unless and until
such shareholder approval is obtained.
	 
	 	(b)	 	No amendment, suspension, or termination of the Plan shall adversely affect any
right or obligation with respect to an Incentive Award theretofore made, or required to
be made after the occurrence of a Change in Control, including without limitation, the
right to receive payment of Incentive Awards in accordance with Section 13 above.






	16.	 	No Right to Employment or Participation






	 	(a)	 	No provision of the Plan nor any action taken by the Committee or the Company
pursuant to the Plan shall give or be construed as giving any salaried employee of the
Corporation any right to be retained in the employ of the Company or of any Subsidiary,
or affect or limit the right of the Company to terminate such employment.
	 
	 	(b)	 	No employee of the Corporation shall have the right to be selected to
participate in the Plan.






	17.	 	Legal Construction






	 	(a)	 	If any provision of the Plan shall be held illegal or invalid for any reason,
such illegality or invalidity shall not affect the remaining parts of the Plan, and the
Plan shall be construed and enforced as if the illegal or invalid provision had not
been included.
	 
	 	(b)	 	The Plan and all Incentive Awards or other awards under the Plan shall be
construed in accordance with and governed by the laws of the State of New Jersey
(without regard to legislative or judicial conflict of law rules of any state), except
to the extent superseded by federal law.
	 
	 	(c)	 	The Plan is intended, and shall be construed, to comply with the requirements
of Section 409A of the Code. However, the Plan does not transfer to the Company or any
entity or other individual liability for any tax or penalty that is the responsibility
of the employee.




 









 











          IN WITNESS WHEREOF, the Company has caused this Vulcan Materials Company Executive Incentive
Plan to be executed for and in its name and its corporate seal to be hereto affixed and attested by
its duly authorized Secretary,
this 11th day
of December, 2008.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	VULCAN MATERIALS COMPANY
	 
	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Jerry F. Perkins, Jr.	 	 	 	By:	 	/s/ Donald M. James	 	 
	 
	 	 

Jerry F. Perkins, Jr.	 	 
	 	 	 	
 
Donald M. James	 	 
	 

	 	Corporate Secretary
	 	 	 	 	 	Chairman and Chief Executive Officer	 	 





CORPORATE SEAL