EX-10.4






Exhibit 10.4



Unfunded Supplemental Benefit Plan

for Salaried Employees



Vulcan Materials Company



December 11, 2008




 









 





Contents




	 
	Article 1. Establishment and Purpose

	 

	Article 2. Definitions

	 

	Article 3. Administration

	 

	Article 4. Eligibility and Participation

	 

	Article 5. Supplemental Thrift Benefits

	 

	Article 6. Supplemental Retirement Benefits

	 

	Article 7. Rabbi Trust

	 

	Article 8. Change in Control

	 

	Article 9. Beneficiary Designation — Supplemental Thrift Benefits

	 

	Article 10. Withholding Taxes

	 

	Article 11. Amendment and Termination

	 

	Article 12. Miscellaneous







 









 





Vulcan Materials Company

Unfunded Supplemental Benefit Plan for Salaried Employees




Article 1. Establishment and Purpose




     1.1 Establishment. Vulcan Materials Company, a New Jersey corporation, hereby amends and
restates, effective as of December 11, 2008 (the “Effective Date”), the Vulcan Materials Company
Unfunded Supplemental Benefit Plan for Salaried Employees (the “Plan”).



     1.2 Purpose. The primary purpose of the Plan is to make up for the reduction in benefits
attributable to the tax-qualified plan limits of the Code, including Section 401(a)(17) and Section
415, and as a result of elective deferrals under the Vulcan Materials Company Executive Deferred
Compensation Plan.



Article 2. Definitions




     2.1 Definitions. Whenever used herein, the following terms shall have the meanings set forth
below, and when the meaning is intended, the term is capitalized:




	 	(a)	 	“401(k) Plan” means the Vulcan Materials Company 401(k) and
Profit-Sharing Retirement Plan. All references to the 401(k) Plan (including the
term “Alternate Profit-Sharing Contribution”) shall be effective beginning July 15,
2007.
	 
	 	(b)	 	“Alternate Matching Contribution” means, with respect to any
Participant, an amount equal to (i) the Matching Contribution that would have been
made to the Investment Account (as such term is defined in the Thrift Plan and in
the 401(k) Plan) of the Participant for a given month were it not for the
application of such Limitations, minus (ii) the Matching Contribution made to the
Investment Account of such Participant for such month, after application of the
Limitations.
	 
	 	(c)	 	“Alternate Profit-Sharing Contribution” means, with respect to any
Participant, an amount equal to (i) the Profit-Sharing Contribution that would have
been made to the Investment Account (as such term is defined in the 401(k) Plan)
of the Participant for a given month were it not for the application of such
Limitations, minus (ii) the Profit-Sharing Contribution made to the Investment
Account of such Participant for such month, after application of the Limitations.
	 
	 	(d)	 	“Board” or “Board of Directors” means the Board of Directors of the
Company.
	 
	 	(e)	 	“Change in Control” means a change in control as defined in regulations
or other guidance under Section 409A of the Code.:
	 
	 	(f)	 	“CEO” means the Chief Executive Officer of the Company.




 









 






	 	(g)	 	“Code” means the Internal Revenue Code of 1986, as amended from time to
time.
	 
	 	(h)	 	“Committee” means the Compensation Committee of the Board (or any other
committee designated by the Board that is eligible to administer the Plan in
accordance with Rule 16b-3 under the Exchange Act).
	 
	 	(i)	 	“Company” means Vulcan Materials Company and also includes any
Employing Company (as such term is defined in the Retirement Plan).
	 
	 	(j)	 	“Company Stock” means the common stock of the Company.
	 
	 	(k)	 	“Early Retirement” shall have the same meaning as defined under the
Retirement Plan.
	 
	 	(l)	 	“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
	 
	 	(m)	 	“Exchange Act” means the Securities Exchange Act of 1934, as amended.
	 
	 	(n)	 	“Limitations” means:






(i) the limitations set forth in Section 415 of the Code;




(ii) the Section 401(a)(17) Limit; and




(iii) the reduction in the compensation that is taken into account under the
Thrift Plan, the 401(k) Plan, and the Retirement Plan (determined without regard
to the Section 401(a)(17) Limit) to the extent that the reduction is attributable
to the Participant’s election to defer such compensation on a nonqualified basis
under Section 5.1 of the Vulcan Materials Company Executive Deferred Compensation
Plan, provided that, the Limitation applied in the calculation of Supplemental
Retirement Benefits shall be take into account such deferred compensation only to
the extent that such compensation exceeds the Section 401(a)(17) Limit.




	 	(o)	 	“Matching Contribution” shall have the same meaning as defined under
the Thrift Plan.
	 
	 	(p)	 	“Normal Retirement Date” shall have the same meaning as defined under
the Retirement Plan.
	 
	 	(q)	 	“Participant” means any key management employee of the Company who has
been approved by the Committee for participation in the Plan under Section 4.1.
	 
	 	(r)	 	“PBGC” means the Pension Benefit Guaranty Corporation.
	 
	 	(s)	 	“Plan Year” means the period of 12 consecutive months beginning each
January 1 and ending December 31.




 









 






	 	(t)	 	“Rabbi Trust” means a grantor trust, as described in Section 677 of the
Code, that is established by the Company as provided in Article 7.
	 
	 	(u)	 	“Rabbi Trust Agreement” means the instrument establishing the Rabbi
Trust, as such instrument may be amended from time to time.
	 
	 	(v)	 	“Retirement Plan” means the Retirement Income Plan for Salaried
Employees of Vulcan Materials Company, as the same may be from time to time
amended.
	 
	 	(w)	 	“Section 401(k) Limit” means the dollar limit imposed by Section
401(a)(17) of the Code on the amount of compensation which may be taken into
account under the Thrift Plan, the 401(k) Plan, and the Retirement Plan.
	 
	 	(x)	 	“Supplemental Retirement Benefits” means the benefits that are payable
under Sections 6.1 or 6.2 of the Plan.
	 
	 	(y)	 	“Supplemental Thrift Benefits” means the benefits that are payable
under Article 5 of the Plan.
	 
	 	(z)	 	“Termination of Employment Service” shall have the same meaning as
defined under the Retirement Plan (as in effect on December 31, 2008), provided
that a Termination of Employment Service shall occur only upon a “separation from
service” within the meaning of Section 409A of the Code.
	 
	 	(aa)	 	“Thrift Plan” means the Vulcan Materials Company Thrift Plan for
Salaried Employees, as the same may be from time to time amended.
	 
	 	(bb)	 	“Vested” shall have the same meaning as defined under the Retirement
Plan.
	 
	 	(cc)	 	“Vesting Date” shall have the same meaning as defined under the
Retirement Plan.





     2.2 Gender and Number. Except where otherwise indicated by the context, any masculine term
shall include the feminine, the plural shall include the singular, and the singular shall include
the plural.



Article 3. Administration




     3.1 The Committee. The Plan shall be administered by the Committee. In no event shall any
member of the Committee be a Participant.



     3.2 Authority of the Committee.



               (a) Subject to the terms of the Plan, the Committee shall have full power and discretionary
authority (i) to determine the terms and conditions of each Participant’s participation in the
Plan, (ii) to construe and interpret the Plan and any agreement or instrument entered into under
the Plan, (iii) to establish, amend, and waive rules and regulations for the Plan’s administration,
(iv) subject to the provisions of Article 11, to amend the Plan and any agreement or instrument
entered



 









 




into under the Plan or to terminate the Plan, (v) to appoint and remove the trustee and the
recordkeeper for the Rabbi Trust, and to direct the trustee and the recordkeeper with respect to
their duties under the agreements pertaining to the Rabbi Trust, and (vi) to make any other
determinations that may be necessary or advisable for the administration of the Plan, provided that
the Committee shall not have authority to alter the time or form of payment of a Participant’s
Supplemental Thrift Benefits and Supplemental Retirement Benefits except as permitted under Section
409A of the Code.




               (b) To the extent permitted by law, the Committee (i) may delegate any or all of its
authority granted under the Plan to one or more executives of the Company (provided that no
executive of the Company who is a Participant shall exercise any authority with respect to his own
participation in the Plan) and (ii) may designate one or more individuals who are not Participants
(but who may be employees of the Company) to carry out ministerial duties related to the
administration of the Plan, except that the Committee shall not delegate responsibility for any
matter involving a person subject to Section 16 of the Exchange Act if a decision by the Committee
as to such matter would have the effect of exempting a transaction under the Plan from the
application of Section 16(b) of the Exchange Act pursuant to Rule 16b-3 or any successor rule
thereunder.



     3.3 Decisions Binding. All determinations and decisions of the Committee (or of any person
to whom the Committee has delegated its authority) under the Plan, including questions of
construction and interpretation, shall be final, conclusive, and binding on the employees of the
Company, the Participants and their beneficiaries and estates. Whenever the Plan authorizes the
Committee or any other person to exercise discretion with respect to any matter, such discretion
may be exercised in the sole and absolute discretion of the Committee or such person, subject only
to the terms of the Plan and applicable requirements of law.



Article 4. Eligibility and Participation




     4.1 Eligibility. Persons eligible to participate in this Plan shall be limited to
full-time, salaried employees of the Company, who are determined to be “key employees” by the CEO
and who are approved for participation by the Committee. Further, to be eligible, an employee must
be among a select group of management or highly compensated employees of the Company, such that the
Plan qualifies for a “top hat” exemption under Title I of ERISA, as further described in Section
12.3 herein.



     4.2 Participation. Unless otherwise determined by the Committee, Participants in the Plan
shall be eligible to receive both Supplemental Thrift Benefits and, except employees hired by the
Company after July 15, 2007, Supplemental Retirement Benefits. Employees who have been approved
for participation in the Plan shall be notified in writing of such approval as soon as
administratively practicable thereafter.



 









 





Article 5. Supplemental Thrift Benefits




     5.1 Participant Accounts.



          (a) The Company shall establish and maintain a separate bookkeeping account for the
Alternative Matching Contributions and Alternative Profit-Sharing Contributions, and the investment
returns thereon, of each Participant (a “Supplemental Thrift Benefits Account Balance”). Each
Participant shall be furnished with a statement of his account balance at least annually.




          (b) The establishment and maintenance of such accounts by the Company shall not be construed
as entitling any Participant to any specific assets of the Company. The rights of Participants to
receive any distribution under the Plan shall be an unsecured claim against the general assets of
the Company.




     5.2 Alternative Matching Contributions.



          (a) If under the Thrift Plan or 401(k) Plan (as applicable to the Participant) a Matching
Contribution to a Participant is reduced by the application of the Limitations, such Participant
shall be entitled to have an Alternative Matching Contribution credited to the Participant’s
Supplemental Thrift Benefits Account Balance. Such credit shall be made at the same time as the
Matching Contribution (as so reduced) is made to the Participant under the Thrift Plan or 401(k)
Plan. A Participant’s action or inaction during a Plan Year does not affect the amount of the
Participant’s Alternative Matching Contribution because the Participant may not change his or her
deferred election for a Plan Year pursuant to the Thrift Plan after the last day of the preceding
Plan Year.




          (a) If under the 401(k) Plan a Profit-Sharing Contribution to a Participant is reduced by the
application of the Limitations, such Participant shall be entitled to have an Alternative
Profit-Sharing Contribution credited to the Participant’s Supplemental Thrift Benefits Account
Balance. Such credit shall be made at the same time as the Profit-Sharing Contribution (as so
reduced) is made to the Participant under the 401(k) Plan.




     5.3 Investment Return.



     (a) Each Participant’s Supplemental Thrift Benefits Account Balance under the Plan shall be
deemed invested, at the Participant’s election, in any investment funds that are available for the
investment of the Participant’s Matching Contributions Account under the Thrift Plan. A
Participant shall make an investment election (or change a previous election) in writing in a
manner acceptable to the Committee, and the Committee may adopt such rules and procedures for the
deemed investment of Participants’ Supplemental Thrift Benefits Account Balances as the Committee
considers necessary or appropriate. An investment election shall be effective for all amounts
subsequently credited to the Participant’s Supplemental Thrift Benefits Account Balance until the
Participant makes a new investment election. If a Participant has not made an investment election,
the Participant’s Supplemental Thrift Benefits Account Balance shall be deemed invested and
reinvested in the same proportions among such investment funds as is the Matching Contributions
Account of the Participant under the Thrift Plan, subject to such restrictions and limitations as
the Committee may deem necessary or appropriate.



 









 





               (b) Each Participant shall be entitled to an investment return based on the deemed
investment of the Participant’s Supplemental Thrift Benefits Account Balance, which shall be
adjusted at such times and in such manner as the Committee deems appropriate to reflect the
investment results of the investment funds in which such balance is deemed invested.



               (c) The Company shall have no obligation to invest any amounts in the investment funds in
which the Supplemental Thrift Benefits Account Balances of Participants are deemed invested.



     5.4 Charges Against Accounts. All payments made to a Participant under the Plan shall be
charged against such Participant’s Supplemental Thrift Benefits Account Balance when and as made.



     5.5 Distributions.



               (a) Except as provided in paragraph (b), a Participant’s Supplemental Thrift Benefits
Account Balance shall be distributed to the Participant in the form of a single lump-sum cash
payment. Such distribution shall be made in the seventh month after the Participant’s Termination
of Employment Service.



               (b) An individual who is a Participant on December 31, 2006, and whose Supplemental Thrift
Benefits do not begin to be paid on or before December 31, 2006, may elect a form of payment and a
time of payment with respect to the Participant’s Supplemental Thrift Benefits Account Balance as
described in this paragraph. The participant may elect to receive the Participant’s Supplemental
Thrift Benefits Account Balance in the form of a single lump-sum payment or annual installments
over a period of fifteen years (with each installment payment equal to the Participant’s remaining
Supplemental Thrift Benefits Account Balance as of the payment date divided by the number of
payments remaining to be made, and this installment option is treated as the entitlement to a
single payment for purposes of Treasury Regulation § 1.409A-2(b)(2)(iii)). The Participant may
also elect to receive (or begin receiving) such distribution either at the time specified in
paragraph (a) or at the later of (i) the time specified in paragraph (a) or (ii) the month of March
in a year selected by the Participant. If a Participant is eligible to make an election under this
paragraph (b) but fails to do so on or before December 31, 2006, the Participant’s Supplemental
Thrift Benefits Account Balance shall be distributed at the time and form of payment as described
under paragraph (a), subject to the next sentence. A Participant who is eligible to make an
election under this paragraph (b) may change the time or form of payment of his or her Supplemental
Thrift Benefits Account after December 31, 2006, provided, however, that the change is made at
least 12 months before the distribution is scheduled to begin, and the new distribution date is at
least five years after the previously scheduled distribution date.



               (c) If the Company fails to make any payment due under this Article 5 within 90 days after
it first becomes due, the payment shall be made from the Rabbi Trust (to the extent assets in the
Rabbi Trust are available to make the payment).



 









 





Article 6. Supplemental Retirement Benefits.




     6.1 Benefit Amount.



     If a Participant experiences a Termination of Employment Service after reaching his Vesting
Date under the Retirement Plan, such Participant shall be entitled to a Supplemental Retirement
Benefit equal to (i) the amount of such Participant’s Vested benefit computed under the Retirement
Plan, determined as if the Participant commenced benefits under the Retirement Plan on the first
day of the month after the Termination of Employment Service and in the same form as the
Supplemental Retirement Benefit is paid, without regard to the Limitations, reduced by (ii) the
amount of such Participant’s Vested benefit computed under the Retirement Plan, determined at the
same time and in the same form, after application of the Limitations. If, however, the form of
payment for the Participant’s Supplemental Retirement Benefit is not available under the Retirement
Plan, the amount of the Supplemental Retirement Benefit shall be determined under the preceding
sentence as if the Supplemental Retirement Benefit is paid in a single life annuity, and the
resulting benefit is converted actuarially into the form of benefit for the Supplemental Retirement
Benefit based on a 7% interest rate and the GAM 83 mortality table (95% male/5% female).



     6.2 Death.



               (a) If a Participant dies after the Participant’s Supplemental Retirement Benefit begins to be
paid, payment may continue to be paid to the Participant’s beneficiary in accordance with the
Participant’s distribution election (or, if no election has been made, in accordance with the
installment payment option). If the Participant has not designated a beneficiary (or the
Participant’s designated beneficiary predeceases the Participant), the Participant’s beneficiary
will be determined under the provisions of the Retirement Plan pertaining to a failure to designate
a beneficiary.



               (b) If a Participant dies before the Participant’s Supplemental Retirement Benefit begins to
be paid, the Participant’s spouse, if any, will receive the Participant’s Supplemental Retirement
Benefit as described in this paragraph. Payment will be made to the spouse in the form of a single
life annuity beginning in the month after the Participant’s death, except if paid in a lump sum
pursuant to Section 6.3(c) (relating to small lump sums). The amount of the payment shall be equal
to (i) the amount of the death benefit that the spouse would be entitled to receive under the
Retirement Plan, if paid in the form of a single life annuity beginning in the month after the
Participant’s death, without regard to the Limitations, reduced by (ii) the amount of the death
benefit that the spouse would be entitled to receive under the Retirement Plan, determined at the
same time and in the same form, after application of the Limitations.



     6.3 Benefit Payments.



               (a) Except as otherwise provided in paragraphs (b) (relating to Participant’s elections) and
(c) (relating to small lump sum payments), the payment of a Supplemental Retirement Benefit to
which a Participant (or, if the Participant dies after payments begin to be made, such
Participant’s beneficiary) is entitled under the Plan shall be distributed to the Participant (or
beneficiary) in the form of equal, monthly installments over a period of ten years (which
installment option is treated as the entitlement to a single payment for purposes of Treasury
Regulation § 1.409A-2(b)(2)(iii)). Such distribution shall begin to be paid in the month following
the Participant’s Termination of



 









 




Employment Service, provided however, that payments that would otherwise be made in the first
six months following the Participant’s Termination of Employment Service will instead by made in a
lump sum in the seventh month following the Participant’s Termination and shall include interest
from the scheduled payment date to the actual payment date at the rate that is used under the
Retirement Plan to satisfy Section 417(e) of the Code for a distribution in the month following the
Participant’s Termination.




               (b) Subject to paragraph (c), an individual who is a Participant and an employee of the
Company on December 31, 2006, may elect a form of payment and a time of payment with respect to the
Participant’s Supplemental Retirement Benefit as described in this paragraph. The Participant may
elect to receive the Participant’s Supplemental Retirement Benefit in the form described in
paragraph (a) or in any other form available under the Retirement Plan. The Participant may also
elect to receive (or begin receiving) such distribution either at the time specified in paragraph
(a) or at the later of (i) the date specified in paragraph (a) or (ii) the month of March in a year
selected by the Participant. If a Participant is eligible to make an election under this paragraph
(b) but fails to do so on or before December 31, 2006, the Participant’s Supplemental Retirement
Benefit shall be distributed at the time and form of payment as described under paragraph (a),
subject to the next sentence. A Participant who is eligible to make an election under this
paragraph (b) may change the time or form of payment of his or her Supplemental Retirement Benefit
after December 31, 2006, provided, however, that the change is made at least 12 months before the
distribution is scheduled to begin, and the new distribution date is at least five years after the
previously scheduled distribution date.



               (c) The Committee has the discretion to require, in writing and consistent with Treasury
Regulation § 1.409A-3(j)(5)(v), the payment to a Participant or Beneficiary of a Supplemental
Retirement Benefit of a lump sum equal to the present value of the Supplemental Retirement Benefit
when the present value of such Supplemental Retirement Benefit, together with the present value of
any benefits that are treated as having been deferred under a single nonqualified deferred
compensation plan under Treasury Regulation § 1.409A–1(c)(2) is not greater than the applicable
dollar amount under Section 402(g)(1)(B) of the Code. For purposes of the preceding sentence,
present value is determined as of the date payment of such Supplemental Retirement Benefit is to be
made using the interest and mortality assumptions that are used under the Retirement Plan to
satisfy Section 417(e) of the Code.



     6.4 Taxability of Benefits Prior to Payment.



               (a) If the Plan fails to meet the requirements of Section 409A of the Code, payment of an
affected Participant’s benefit under the Plan may be accelerated in accordance with Treasury
Regulation § 1.409A-3(j)(vii), provided that such accelerated payment may not exceed the amount
required to be included in income as a result of the failure to comply with the requirements of
Section 409A of the Code.



               (b) Payment of a Participant’s benefit under the Plan may be accelerated in accordance with
Treasury Regulation § 1.409A-3(j)(vi) to pay (1) any Federal Insurance Contributions Act tax
imposed under Sections 3101, 3121(a), and 3121(v)(2) of the Code, or any Railroad Retirement Act
tax imposed under Sections 3201, 3211, 3231(e)(1), and 3231(e)(8) of the Code on benefits under the
Plan, and (2) if applicable, the income tax at source on wages imposed under Section 3401 of the



 









 




Code or the corresponding withholding provisions of applicable state, local, or foreign tax
laws as a result of such payment.




Article 7. Rabbi Trust




     7.1 Establishment of a Rabbi Trust. As soon as administratively practicable following the
Effective Date, the Company shall establish an irrevocable Rabbi Trust to accumulate assets that
will assist the Company in meeting its obligations under the Plan. The Rabbi Trust shall have an
independent trustee that is selected by the Company. The trust agreement with respect to the Rabbi
Trust shall provide that the assets of the Rabbi Trust shall at all times be specifically subject
to the claims of the Company’s creditors in the event of the bankruptcy or insolvency (as defined
by the Rabbi Trust Agreement) of the Company. Notwithstanding this Section 7.1, the Rabbi Trust
shall be funded only to the extent permissible under Section 409A(b) of the Code.



     7.2 Funding of the Rabbi Trust. Except as otherwise provided in Article 8, the Company may
contribute cash, Company Stock, or any other asset to the Rabbi Trust when and as the Company deems
appropriate.



Article 8. Change in Control




     8.1 Funding of the Rabbi Trust. Upon the occurrence of a Change in Control, (i) the
Company shall within ten business days thereafter contribute to the Rabbi Trust in cash an amount
sufficient to cover all Supplemental Thrift Benefits and Supplemental Retirement Benefits accrued
hereunder as of date on which the Change in Control occurs and (ii) the Company, within 30 day
after the commencement of each Plan Year thereafter, shall contribute to the Rabbi Trust in cash
such additional amounts as shall be necessary to ensure that the assets of the Rabbi Trust are at
least sufficient to cover all Supplemental Thrift Benefits and Supplemental Retirement Benefits
accrued as of the commencement of such Plan Year. Notwithstanding this Section 8.1, the Rabbi
Trust shall be funded only to the extent permissible under Section 409A(b) of the Code.



     8.2 Payment of Supplemental Thrift Benefits.



               (a) If at any time during the two-year period immediately following the occurrence of such
Change in Control a Participant incurs a Termination of Employment Service, then the terminated
Participant shall be entitled to receive a lump-sum cash payment equal to: (A) such Participant’s
Supplemental Thrift Benefit and (B) the present value (determined using the interest and mortality
assumptions that are used under the Retirement Plan to satisfy Section 417(e) of the Code) of the
Vested benefit to which such Participant would be entitled pursuant to Section 6.1 if the
Accelerating Event constituted a Termination of Employment Service by the Participant after
reaching such Participant’s Vesting Date under the Retirement Plan. The Company shall make, or
shall cause the Rabbi Trust to make, the payments due under this Section 8.2(a) in the seventh
month after the date of the Participant’s Termination of Employment Service



          (b) If the Plan and all agreements, methods, programs, and other arrangements that are
treated together with the Plan as a single plan under Treasury Regulation § 1.409A-1(c)(2) are
terminated at any time during the 30 days preceding or the 12 months following a Change in Control
in accordance with Treasury Regulation § 1.409A-3(j)(4)(ix)(B), then each Participant shall be




 









 




entitled to receive a lump-sum cash payment equal to: (A) such Participant’s Supplemental
Thrift Benefit and (B) the present value (determined using the interest and mortality assumptions
that are used under the Retirement Plan to satisfy Section 417(e) of the Code) of the Vested
benefit to which such Participant would be entitled pursuant to Section 6.1 if the Accelerating
Event constituted a Termination of Employment Service by the Participant after reaching such
Participant’s Vesting Date under the Retirement Plan. The Company shall make, or shall cause the
Rabbi Trust to make, the payments due under this Section 8.2(b) as soon as practicable, but not
more than 30 days following, the date of termination of the Plan and all agreements, methods,
programs, and other arrangements that are treated together with the Plan as a single plan under
Treasury Regulation § 1.409A-1(c)(2).




     8.3 Composition of the Committee. The composition of the Committee immediately prior to
the Change in Control shall not be changed after the Change in Control, except with the consent of
a majority of the Continuing Directors. If, after the Change in Control, a member of the Committee
resigns or is unable to serve due to death or disability, the remaining members of the Committee
shall appoint a replacement.



     8.4 Reimbursement of Fees and Expenses. Following a Change in Control, the Company
promptly shall reimburse a Participant for all legal fees and expenses reasonably incurred in
successfully enforcing any right or benefit under the Plan. Any reimbursement of legal fees
pursuant to this Section 8.4 shall be paid no later than the end of the individual’s taxable year
next following the individual’s taxable year in which the related expense is incurred, except that
if such reimbursement is subject to a substantial risk of forfeiture, it shall be paid no later
than two and one-half months after it is no longer subject to a substantial risk of forfeiture.



Article 9. Beneficiary Designation — Supplemental Thrift Benefits




     9.1 Designation of Beneficiary. Each Participant may designate a beneficiary or
beneficiaries who, upon the Participant’s death, will receive the Supplemental Thrift Benefits that
otherwise would have been paid to the Participant under the Plan. All such designations shall be
signed by the Participant, and shall be in such form as is prescribed by the Committee. Each
designation shall be effective as of the date delivered to the Committee (or to a Company employee
appointed by the Committee to receive such designations); provided that the Committee must receive
any beneficiary designation or change therein before the Participant’s death. A Participant may
change his beneficiary designation, at any time and from time to time, on such form as is
prescribed by the Committee. In the event of the death of the Participant, the payment of all
amounts deferred under the Plan, and the earnings thereon, shall be in accordance with the last
written beneficiary designation signed and delivered by the Participant and not revoked.



     9.2 Payment to Beneficiary. If a Participant dies before his Supplemental Thrift Benefit has
been paid in full, the payment thereof to the Participant’s beneficiary or beneficiaries shall be
made in a single lump-sum cash payment on the 30th day following the Participant’s death.



     9.3 Death of Beneficiary. In the event that all the beneficiaries of a Participant
predecease the Participant, the Supplemental Thrift Benefit that would have been paid to the
Participant under the Plan shall be paid in a single lump-sum cash payment on the 30th day
following the Participant’s death to the Participant’s estate, or to the person or persons
designated in writing by the Participant’s estate.



 









 





     9.4 Ineffective Designation. In the event a Participant does not designate a beneficiary
with respect to his Supplemental Thrift Benefit, or for any reason such designation is ineffective,
in whole or in part, the Supplemental Thrift Benefit that otherwise would have been paid to the
Participant under the Plan shall be paid in a single lump-sum cash payment on the 30th day
following the Participant’s death to the Participant’s estate.



Article 10. Withholding of Taxes




     The Company shall have the right to either (i) require Participants to remit to the Company,
or any person or entity designated by the Committee to administer the Plan, an amount sufficient to
satisfy any applicable federal, state, and local income and employment tax withholding requirements
or (ii) to deduct from any payment made pursuant to the Plan amounts sufficient to satisfy such
withholding requirements.



Article 11. Amendment and Termination




     The Company has the right to amend, suspend, or terminate the Plan at any time by action of
the Board of Directors, except that (i) no such amendment, suspension, or termination shall,
without the written consent of a Participant, change the time or form of any payout under the Plan
or otherwise adversely affect, in any material respect, such Participant’s rights with respect to
amounts theretofore accrued under the Plan, and (ii) following a Change in Control, the Company
shall not amend Section 5.5 (b), Articles 3, 7 or 8, or this Article 11, and shall not amend any
other provision of the Plan in a manner that would alter the effect of Section 5.5(b), Articles 3,
7 or 8, or this Article 11.



Article 12. Miscellaneous




     12.1 Employment. 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 a Participant any right to be
retained in the employ of the Company, or affect or limit in any way the right of the Company to
terminate his employment.



     12.2 Notice. Any notice required or permitted to be given to the Committee or the Company
under the Plan shall be sufficient if in writing and hand delivered, sent by registered or
certified mail, or delivered in any other manner authorized by the Committee, to the Committee (or
to a person designated by the Committee to receive such notices). Such notices, if mailed, shall
be addressed to the principal executive offices of the Company. Notice to any Participant shall be
given in any manner authorized by the Committee and, if mailed, shall be sent to the Participant’s
address as is set forth in the records of the Company.



     12.3 Unfunded Plan. This Plan is intended to be an unfunded plan for tax purposes and for
purposes of Title I of ERISA. The Plan is intended primarily to provide deferred compensation
benefits for “a select group of management or highly compensated employees” within the meaning of
Sections 201, 301, and 401 of ERISA, and therefore is further intended to be exempt from the
provisions of Parts 2, 3, and 4 of Title I of ERISA. The Committee may terminate the Plan for any
or all Participants, subject to Article 11, in order to achieve and maintain these intended
results.



 









 





     12.4 Successors. All obligations of the Company under the Plan shall be binding on any
successor to the Company, whether the existence of such successor is the result of a direct or
indirect merger or consolidation, the purchase of all or substantially all of the assets of the
Company, or otherwise. The provision of the Plan with respect to each Participant shall be binding
on such Participant’s heirs, executors, administrators or other successors in interest.



     12.5 Nontransferability. The Committee may recognize the right of an alternate payee named
in a domestic relations order to receive all or a portion of a Participant’s benefit under the
Plan, provided that (i) the domestic relations order would be a “qualified domestic relations
order” within the meaning of Section 414(p) of the Code if Section 414(p) were applicable to the
Plan, (ii) the domestic relations order does not purport to give the alternate payee any right to
assets of the Company or its affiliates, and (iii) the domestic relations order does not purport to
give the alternate payee any right to receive payments under the Plan before the Participant is
eligible to receive such payments. Except as set forth in the preceding sentence with respect to
domestic relations orders, and except as required under applicable federal, state, or local laws
concerning the withholding of tax, the rights of any Participant or beneficiary to amounts deferred
under the Plan, and the earnings thereon, are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Participant or any beneficiary, other than by will or by the laws of descent and
distribution. In no event shall the Company make any payment under the Plan to any assignee or
creditor of a Participant or beneficiary.



     12.6 Severability. In the event any provision of the Plan shall be held illegal or invalid
for any reason, the 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.



     12.7 Costs of the Plan. All costs of implementing and administering the Plan shall be borne
by the Company.



     12.8 Governing Law. To the extent not preempted by federal law, the Plan shall be governed
by and construed in accordance with the laws of the state of New Jersey, without giving effect to
any choice or conflict of law provision or rule.



     12.9 Section 409A of the Internal Revenue Code.



     (a) 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 any tax or penalty that is the responsibility of the Participant.



     (b) Any payment may be made on any day other than the date on which payment is scheduled to
begin under the Plan to the extent that such payment is treated as being paid on the date specified
in the previous sentence under Treasury Regulation § 1.409A-3(d), which permits payment to be made
within thirty days before the specified date and later within the same calendar year, or, if later,
within 2-1/2 months following the specified date, provided that the Participant is not permitted to
designate the taxable year of payment.



     (c) To comply with Section 409A of the Code, the following special claims procedures apply in
addition to any other claims procedures applicable to the Plan. If a Participant or Beneficiary
believes



 









 




he or she is entitled to have received benefits but has not received them, the Participant or
Beneficiary must accept any payment made under the Plan and make prompt and reasonable, good faith
efforts to collect the remaining portion of the payment, as determined under Treasury Regulation §
1.409A-3(g). For this purpose (and as determined under such regulation), efforts to collect the
payment will be presumed not to be prompt, reasonable, good faith efforts, unless the Participant
or Beneficiary provides notice to the plan administrator within 90 days of the latest date upon
which the payment could have been timely made in accordance with the terms of the Plan and the
regulations under Section 409A of the Code, and unless, if not paid, the Participant or Beneficiary
takes further enforcement measures within 180 days after such latest date. In addition, a
Participant or Beneficiary must exhaust any other claims procedures established by the plan
administrator before initiating litigation.




     IN WITNESS WHEREOF, the Company has caused this Vulcan Materials Company Unfunded Supplemental
Benefit Plan for Salaried Employees 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 	 	 	 	By:	 	/s/ Donald M. James	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Jerry F. Perkins, Jr.
	 	 	 	 	 	Donald M. James	 	 
	 

	 	Corporate Secretary
	 	 	 	 	 	Chairman and Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	CORPORATE SEAL