EX-10.5






Exhibit 10.5




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



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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.



5. Distribution




     (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 first day of such calendar year. A director may only modify
a payout election with respect to amounts already earned or to be earned during the then-current
calendar year in accordance with Section 7(b) below. The amount of each installment shall be
determined as of each payment date by dividing the then balance in the Account by the then
remaining number of payment dates in the Payout Period. The lump sum or first periodic installment
shall be paid by the Company as promptly as is practicable, and in any event within ninety (90)
days of the payment event elected by the Director in accordance with the terms of the Plan. If a
Director elects to receive payment in installments, for purposes of section 409A of the Code, the
designated payment date of each installment after the first installment is January 1 of the
calendar year in which it is scheduled to be paid, and payment may be made on any other day during
such year to the extent that such payment is treated as being paid on the designated payment date
under Treasury Regulation § 1.409A-3(d), which permits payment to be made later within the same
calendar year.



     (c) In the event of the death of the Director prior to distribution of the entire balance in
the Director’s Account, the balance in the Account shall be paid as promptly as is practicable (but
no later than ninety (90) days after the date of death) in a lump sum to




     (i) the surviving beneficiary (or surviving beneficiaries in such proportions)
as the Director may have designated by notice in writing to the
Company unrevoked by a later notice in writing to the Company or, in the absence of
an unrevoked notice,



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     (ii) the beneficiary (or beneficiaries in such proportions) as the Director may
have designated by will or, if no beneficiary is designated,




     (iii) the legal representative of the Director’s estate.



     (d) The provisions of the Plan shall apply to and be binding upon the beneficiaries,
distributees and personal representatives and any other successors in interest of the Director.



     (e) Distribution of the cash in the Account shall be made in cash. Distribution of stock
equivalents in the Account shall be made in the corresponding number of whole shares of Common
Stock. Fractional shares shall be paid in cash.



     (f) The Company shall deduct from all distributions hereunder any taxes required to be
withheld by the federal or any state or local government.



6. Acceleration of Distribution




     (a) “Change in Control” means a change in control as defined in regulations or other guidance
under Section 409A of the Code.



     (b) Notwithstanding any other provision of the Plan, if a Change in Control occurs and any of
the following events occurs:



          (1) the Director incurs a separation from service with the Company within the meaning of
section 409A of the Code during the two (2) year period following the Change in Control; or




          (2) the Plan is terminated and the requirements of Treasury Regulation § 1.409A-3(j)(4)(ix)
are satisfied;



then the balance in the Account shall be payable in a lump sum (in cash or in shares of Common
Stock, as is applicable) to the Director. Such payment shall be made by the Company as promptly as
practicable, but not more than thirty (30) days following the date on which the applicable event
occurs.




     (c) The Company shall promptly reimburse the Director for all legal fees and expenses
reasonably incurred in successfully seeking to obtain or enforce any right or benefit provided
under this Section 6. To the extent that the right to legal fees under this Section 6(c) is
subject to a “substantial risk of forfeiture” within the meaning of Treas. Reg. § 1.409A-1(d), any
reimbursement of legal fees under this Section 6(c) shall be paid no later than 2-1/2 months
following the end of the Director’s taxable year in which there is no longer a substantial risk of
forfeiture; otherwise, any reimbursement of legal fees paid to the Director pursuant to this
Section 6(c) shall be paid no later than the end of the Director’s taxable year next following the
taxable year of the Director in which the related expense is incurred.



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     (d) This Section 6 may not be amended or modified after the occurrence of a Change in Control.



7. Miscellaneous




     (a) The election to defer Deferrable Compensation, including the allocation of the amount
deferred between the cash allotment and the stock allotment portion of the Account shall be
irrevocable as to amounts earned in the calendar year following the year in which the election is
made or, in the case of a Director who first becomes eligible to participate in the Plan during the
calendar year, for the remaining portion of the year in which the election is made and, also shall
be effective as to and irrevocable for any subsequent calendar year, unless a new election form
reflecting a change or revocation of the deferral election or a change in the allocation of the
amount deferred between the cash allotment and the stock allotment portion of the Account with
respect to amounts earned in such subsequent calendar year is delivered to the Secretary of the
Company not later than ten (10) days preceding the first day of the calendar year to which such
change or revocation is applicable.



     (b) A Director may change his election pursuant to Section 5(a) as to the time of payment,
subject to the following requirements:



          (1) the new election must be made at least twelve months before the date when payment would
otherwise commence (and the new election shall be ineffective if a subsequent event causes the
original payment date to fall within the 12-month period); and




          (2) the new election must defer the date on which payment will commence by at least five years
from the commencement date applicable to the Participant’s previous election. However, a
participant may elect to change the number of payments in any given year (i.e., quarterly to
annual) without approval of the Board by giving written notice to the Secretary of the Company,
provided that any payment previously scheduled to be paid within a calendar year will, after such
change, be paid within the same calendar year. In addition, notwithstanding the forgoing, the
Company may, in its discretion, permit a Director to change, no later than December 31, 2008, his
election as to the time of payment pursuant to the transition rules under section 409A of the Code.




     (c) Neither the Director nor any other person shall have any interest in any fund or in any
specific asset of the Company by reason of amounts credited to the Account of a Director hereunder,
nor the right to exercise any of the rights or privileges of a shareholder with respect to any
stock equivalents credited to the Account, nor the right to receive any distribution under the Plan
except as and to the extent expressly provided for in the Plan. Distributions hereunder shall be
made from the general funds of the Company, and the rights of the Director shall be those of an
unsecured general creditor of the Company. The Company may establish a trust pursuant to a trust
agreement and make contributions thereto for the purpose of assisting the Company in meeting its
obligations hereunder. Any such trust agreement shall contain procedures to the following effect:




     (i) In the event of the insolvency of the Company, the trust fund will be
available to pay the claims of any creditor of the Company to whom a distribution



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may be made in accordance with state and federal bankruptcy laws. The Company shall
be deemed to be “insolvent” if the Company is subject to a pending proceeding as a
debtor under the Federal Bankruptcy Code (or any successor federal statute) or any
state bankruptcy code. In the event that the Company becomes insolvent, the Board
and chief executive officer of the Company shall notify the trustee of the event as
soon as practicable. Upon receipt of such notice, or if the trustee receives other
written allegations of the Company’s insolvency, the trustee shall cease making
payments of benefits from the trust fund, shall hold the trust fund for the benefit
of the Company’s creditors, and shall take such steps as are necessary to determine
within 30 days whether the Company is insolvent. In the case of the trustee’s
actual knowledge of or other determination of the Company’s insolvency, the trustee
will deliver assets of the trust fund to satisfy claims of the Company’s creditors
as directed by a court of competent jurisdiction.




     (ii) The trustee shall resume payments of benefits under the trust agreement
only after the trustee has determined that the Company is not insolvent (or is no
longer insolvent, if the trustee had previously determined the Company to be
insolvent) or upon receipt of an order of a court of competent jurisdiction
requiring such payment. If the trustee discontinues payment of benefits pursuant to
clause (i), above, and subsequently resumes such payment, the first payment on
account of a Director following such discontinuance shall include an aggregate
amount equal to the difference between the payments which would have been made on
account of such Director by the Company during any such period of discontinuance,
plus interest on such amount at a rate equivalent to the net rate of return earned
by the trust fund during the period of such discontinuance.


No trust established pursuant to this section 7(c), nor any assets set aside in such trust, shall
be located or transferred outside of the United States or set aside in connection with a change in
the Company’s financial health or during a “restricted period,” as determined under section
409A(b)(2) and (3) of the Code.




     (d) The interest of the Director under the Plan shall not be assignable by the Director or the
Director’s beneficiary or legal representative, either by voluntary assignment or by operation of
law, and any assignment of such interest, whether voluntary or by operation of law, shall be
ineffective to transfer the Director’s interest; provided, however, that (i) the Director may
designate a beneficiary to receive any benefit payable under the Plan upon death, and (ii) the
legal representative of the Director’s estate may assign the Director’s interest under the Plan to
the persons entitled to any benefit payable under the Plan upon the Director’s death.



     (e) Except as provided in Section 6, above, the Company may amend, modify, terminate or
discontinue the Plan at any time; provided, however, that no such action shall reduce the amounts
credited to the Account of the Director immediately prior to such action, nor change the time,
method or manner of distribution of such amount, including, without limitation, distribution in
accordance with Section 6, above.



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     (f) Nothing contained herein shall impose any obligation on the Company to continue the tenure
of the Director beyond the term for which such Director may have been elected or shall prevent the
removal of such Director.



     (g) This Plan shall be interpreted by and all questions arising in connection therewith shall
be determined by a majority of the Board, whose interpretation or determination, when made in good
faith, shall be conclusive and binding, unless a Change in Control shall have occurred, in which
case such interpretation or determination shall be made by a majority of the Continuing Directors.



     (h) The effective date (the “Effective Date”) of this Amendment and Restatement of the Plan
shall be December 11, 2008.



     IN WITNESS WHEREOF, the Company has caused this Amendment and Restatement of the Vulcan
Materials Company Deferred Compensation Plan for Directors Who Are Not Employees of the Company 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	 	 	 	 	







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