THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 VULCAN MATERIALS COMPANY PERFORMANCE SHARE UNIT AWARD AGREEMENT Terms and Conditions
Exhibit
10.1
THIS
DOCUMENT CONSTITUTES PART OF
A
PROSPECTUS COVERING SECURITIES THAT
HAVE
BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933
VULCAN
MATERIALS COMPANY
Terms
and Conditions
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1.
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Definitions. As used in
this Award Agreement the following terms shall have the meanings as
follows:
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(a)
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"Award
Agreement" means this Performance Share Unit Award
Agreement.
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(b)
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"Performance
Period" means the three-year period shown on Section 3 of this Award
Agreement, except that in the “Event” of the
Participant’s death or a change in control (as defined in regulations or
other guidance under Section 409A of the Internal Revenue Code of 1986, as
amended (the "Code")), the Performance Period will be the period
covered by the Award Agreement ending on December 31st
of the calendar year in which the Event
occurred.
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(c)
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"Company"
means Vulcan Materials Company, a New Jersey
corporation.
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(d)
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"Committee"
means the Compensation Committee of the Board of
Directors.
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(e)
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“Disability”
means Permanent and Total Disability whereby the Participant is entitled
to long-term disability benefits under the applicable group long-term
disability plan of the Company or a Subsidiary, or, to the extent not
eligible to participate in any Company-sponsored plan, under the
guidelines of the Social Security
Administration.
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(f)
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“Fair
Market Value or “FMV” means the closing stock price for a Share on the
business day that immediately precedes the Payment Date as reported on a
national securities exchange if the Shares are then being traded on such
an exchange or as determined by the Committee if Shares are not so
traded.
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(g)
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"Grant
Date" means the date of this Award
Agreement.
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(h)
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"Participant"
means the name of the employee of the Company or its subsidiaries or
affiliates.
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(i)
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“Payment
Date” means the date on which payment is made under this Award
Agreement.
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(j)
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"Performance
Share Unit" or “PSU” means the equivalent of one share of Common
Stock.
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(k)
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"Plan"
means the Vulcan Materials Company 2006 Omnibus Long-Term Incentive Plan,
as amended, or any successor plan, as
amended.
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(l)
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“Share"
means a share of Common Stock, par value $1.00 per share, of the
Company.
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2.
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Grant
and Vesting of PSUs
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(a)
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Grant. The
Participant is awarded the number of PSUs identified through the
electronic, on-line grant acceptance process, subject to terms and
conditions set forth in the Agreement. Depending on the
company’s performance as set forth in Section 3, the participant may earn
zero percent (0%) to two hundred percent (200%) of the shares
awarded.
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(b)
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Vesting. Except
as otherwise provided in Section 4, and subject to the Committee’s
discretion set forth in Section 6, the PSUs will become vested on December
31, at the end of the Performance
Period.
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3.
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Payment
of Performance Share Units
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(a)
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Performance Period and
Measures. The Performance Period for this award begins on
January 1, 2010 and ends on December 31, 2012. The Percentage
of the award earned and paid will be established by the Committee based on
the company’s 3-year average Total Shareholder
Return (“TSR”) relative to S&P 500 Index as comprised on January 1 of
the year of grant. The maximum Percentage may be decreased but
not increased by the Committee. The following table A reflects
the goals which performance will be measured for payment of the PSUs
awarded.
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Performance
Share Unit Payment Table
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TABLE
A
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3-Year
Average Total Shareholder Return Percentile Rank Relative to S&P 500
Index
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%
of Performance Share Share Units Payable
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75th
or >
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200
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50th
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100
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25th
or <
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0
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(b)
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Units Payable.
The number of PSUs payable is the shares awarded multiplied by the TSR
Percentage payable. For performance levels falling between the
values as shown above, the Percentages will be determined by
interpolation. Payment will be made in
stock.
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(c)
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The Value of the Stock
Issued as Payment for PSUs Earned. The FMV will be used
to determine the basis of the stock
payable.
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(d)
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Withholding.
The Company shall withhold Shares having a Fair Market Value on the date
the tax is to be determined equal to the minimum statutory amount for
federal, state, local, and employment taxes (“Total Tax”) which could be
withheld on the transaction, with respect to any taxable event arising as
a result of this Award Agreement.
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(e)
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Timing of
Payment. Payment will be made to a Participant between January 1 and March 15 of the calendar
year after the calendar year in which the Performance Period [as defined
in Section 1(b)], ends.
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(f)
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Payment
Determination. The Committee may exercise its discretion
to reduce or eliminate payments if the Performance Period average TSR is
less than or equal to the 25th
percentile.
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2
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4.
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Termination
of Employment.
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(a)
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Termination at age 55
and above.
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(i)
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If
a Participant terminates from employment at age 55-61, the PSUs will
become non-forfeitable in accordance with Table B and will be paid in accordance with Section
3. The Participant may be required to execute a
reasonable non-competition covenant with the Company restricting the
Participant from competing with the Company in a specified territory for a
specified period of time. If such covenant is required by the
Company and is not executed by the Participant, unvested PSUs will be
forfeited and vested PSUs not yet paid as of the date of such termination
will be paid in accordance with Section
3.
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TABLE
B
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If
termination at age 55-61 occurs on or after January 1st
of the:
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The
percentage of PSUs
that
will become Non-forfeitable is:
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1st
Calendar year following the Grant Date
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33%
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2nd
Calendar year following the Grant Date
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67%
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3rd
Calendar year following the Grant Date
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100%
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(ii)
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If
a Participant terminates from employment at age 62 or later, the PSUs
which have been held by the Participant until January 1st
of the calendar year following the year of grant, will be deemed to be
non-forfeitable and will be paid in
accordance with Section 3. The Participant may be
required to execute a reasonable non-competition covenant with the Company
restricting the Participant from competing with the Company in a specified
territory for a specified period of time. If such covenant is
required by the Company and is not executed by the Participant, unvested
PSUs will be forfeited and vested PSUs not yet paid as of the date of such
termination will be paid in accordance with Section
3.
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(b)
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Disability.
Upon determination of Disability, as defined in Section 1(e), the PSUs
granted under this Award Agreement will become non-forfeitable. All
non-forfeitable PSUs will be paid in accordance with Section
3.
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(c)
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Death. Upon
the death of the Participant, the PSUs granted under this Award Agreement
will become non-forfeitable. All non-forfeitable PSUs will be
paid to the Participant's beneficiary or estate in accordance with Section
3.
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3
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(d)
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Other
Termination. Upon voluntary termination prior to age 55,
or upon involuntary termination for reasons other than death, Disability,
or cause as determined under Section 4(e), unvested PSUs will be forfeited
and vested PSUs not yet paid as of the date of such termination will be
paid in accordance with Section 3.
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(e)
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Termination for
Cause. If a Participant’s employment is terminated for
cause, the PSUs will immediately be forfeited, even with respect to vested
PSUs which were otherwise non-forfeitable but not yet paid. The
Committee shall have complete discretion to determine whether a
Participant has been terminated for cause. The Committee's
determination shall be final and binding on all persons for purposes of
the Plan and this Award Agreement.
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(f)
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Change in Control of
the Company. Upon
a Change in Control of the Company, as defined in regulations or other
guidance under Section 409A of the Code, the PSUs granted under this Award
Agreement will be deemed to be non-forfeitable. All
non-forfeitable PSUs will be paid in accordance with Section
3.
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5.
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Section
16(b) Participants. Any Participant subject to Section
16(b) reporting shall be governed by same with respect to
PSUs.
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6.
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Committee
Discretion. The Committee may, in its sole discretion,
amend this Award Agreement to the extent necessary to comply with any
statute, regulation, or other administrative
guidance. Notwithstanding any other provision of the Plan or
this Award Agreement, the Committee may amend the Plan or this Award
Agreement to the extent permitted by their terms and deem any units
granted under this Award non-forfeitable for the events described in
Sections 4(a) and 4(d). The Committee shall not make any
amendment pursuant to this Section 6 that would cause this Award
Agreement, if it is subject to or becomes subject to Section 409A of the
Internal Revenue Code, to fail to satisfy the requirements of such Section
409A. The Committee has sole discretion to establish the Comparison Group
to be used in evaluating the performance of the Company in accordance with
Section 3(a), and may change the Comparison Group from time to
time.
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7.
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Entire
Agreement; Amendment. This Award Agreement, The Memorandum, and the
Plan are incorporated herewith and represent the entire understanding and
agreement between the Company and the Participant, and shall supersede any
prior agreement and understanding between the parties. Except
as provided in Section 6 of this Agreement and subject to any Plan
provision, this Award may not be amended or modified except by a written
instrument executed by the parties
hereto.
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8.
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Non-Solicitation. In
consideration for this Agreement and notwithstanding any other provision
in this Agreement, the Participant agrees to comply with the
non-solicitation covenants set forth
below:
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(a)
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Non-Solicitation of
Customers. The Participant acknowledges that while
employed by the Company, the Participant will occupy a position of trust
and confidence and will acquire confidential information about the
Company, its subsidiaries and affiliates, and their clients and customers
that is not disclosed by the Company or any of its subsidiaries or
affiliates in the ordinary course of business, including trade secrets,
data, formulae, information concerning customers and other information
which is of value to the Company because it is not generally known. The
Participant agrees that during the period of employment with the Company
and for a period of two years after the date of termination of employment
with the Company, regardless of the reason for termination, the
Participant will not, either individually or as an officer, director,
stockholder, member, partner, agent, consultant or principal of another
business firm, directly or indirectly solicit any customer of the Company
or of its affiliates or
subsidiaries.
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(b)
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Non-Solicitation of
Employees. The Participant recognizes that while
employed by the Company, the Participant will possess confidential
information about other employees of the Company and its subsidiaries or
affiliates relating to their education, experience, skills, abilities,
compensation and benefits, and inter-personal relationships with suppliers
to and customers of the Company and its subsidiaries or
affiliates. The Participant recognizes that this information is
not generally known, is of substantial value to the Company and its
subsidiaries or affiliates in developing their respective businesses and
in securing and retaining customers, and will be acquired by the
Participant because of the Participant’s business position with the
Company. The Participant agrees that during the period of
employment with the Company and for two years after the date of
termination of employment with the Company, regardless of the reason for
termination, the Participant will not, directly or indirectly, solicit or
recruit any employee of the Company or any of its subsidiaries or
affiliates for the purpose of being employed by the Participant or by any
business, individual, partnership, firm, corporation or other entity on
whose behalf the Participant is acting as an agent, representative or
employee and that the Participant will not convey any such confidential
information or trade secrets about other employees of the Company or any
of its subsidiaries or affiliates to any other person except within the
scope of the Participant’s duties as an employee of the
Company.
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(c)
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Remedies. If
any dispute arises concerning the violation by the Participant of the
covenants described in this Section, an injunction may be issued
restraining such violation pending the determination of such controversy,
and no bond or other security shall be required in connection
therewith. If the Participant violates any of the obligations
in this Section, this Award Agreement will terminate, if it is
outstanding, and, in addition, the Company will be entitled to any
appropriate relief, including money damages, equitable relief, and
attorneys’ fees.
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