In accordance with Section 14A of the Exchange Act, we are asking shareholders to approve, on an advisory basis, the compensation paid to our named
executive officers (“NEOs”) as disclosed in this proxy statement on page 57. While this vote is advisory and not binding on our company, it provides information to our Compensation Committee regarding investor sentiment about our
executive compensation philosophy, policies and practices, which the Compensation Committee will consider when determining executive compensation in the future.
At
our 2011 Annual Meeting of Shareholders, our shareholders indicated a preference that the advisory vote on the compensation for our NEOs occur on an annual basis. Therefore, our Board adopted a policy for annual “Say on Pay” advisory
votes. The next shareholder vote on the frequency of the advisory vote on the compensation of our NEOs will be held at the 2017 Annual Meeting of Shareholders.
At
the 2015 Annual Meeting, our shareholders voted over 98% in favor of our “Say on Pay” proposal. We believe this demonstrated strong support for our compensation program and policies. In 2015, we continued to review and make changes to our
compensation program, considering new compensation trends, investor concerns and best practices. We adopted a clawback policy and amended our stock ownership guidelines to add an equity retention requirement for officers. Please read the
Compensation Discussion and Analysis Section on pages 37 to 55 for an in-depth look at our compensation program and how it was applied to the performance of our NEOs in 2015.
Based on the foregoing, the Board recommends a vote FOR the following resolution:
The Audit Committee, which is composed solely of independent directors, has appointed Deloitte & Touche LLP as the independent registered public accounting firm
for our company and its subsidiaries for the fiscal year ending December 31, 2016. The function of the independent registered public accounting firm is to audit our accounts and records; to report on the consolidated balance sheet and the
related statements of consolidated comprehensive income, consolidated shareholders’ equity and consolidated statements of cash flows of our company and its subsidiaries; to audit our internal controls over financial reporting; and to perform
such other appropriate accounting services as may be required and approved by the Audit Committee. Although shareholder ratification is not required, our Board is seeking shareholder ratification as a matter of good corporate governance. Even if the
appointment of Deloitte & Touche LLP is ratified by a majority of the votes cast at the meeting, the Audit Committee may, in its discretion, direct the appointment of another independent registered accounting firm at any time during the
year, if it believes such appointment is in the best interests of the company and the shareholders. If a majority of the votes cast at the meeting fails to ratify the selection of Deloitte & Touche LLP as our independent registered public
accounting firm, the Audit Committee will consider the selection of another independent registered public accounting firm for future years.
The firm of
Deloitte & Touche LLP, or its predecessors, has audited our financial statements since 1956. A representative of that firm is expected to be present at the meeting, will be given an opportunity to make a statement and will be available to
respond to appropriate questions.
DIRECTOR COMPENSATION
We use a combination of cash and stock-based compensation to attract and retain qualified candidates to serve on our Board
of Directors. In setting director compensation, our company considers the significant amount of time that directors expend on fulfilling their duties to our company, as well as the limited pool of, and competition among public companies for,
well-qualified Board members. Additional amounts are paid to committee chairs in recognition of the substantial responsibilities of the chair.
Annually, the Board
evaluates the competitiveness of the company’s non-employee director compensation program relative to peer companies. Based on this evaluation, beginning in fiscal 2015, the Board increased the annual cash retainer fee and eliminated meeting
fee payments.
Directors are subject to a minimum share ownership requirement. Within five years of becoming a director, each director is required to own at least
5,000 shares of our company’s common stock. Shares or units held by a director under a deferred compensation plan are included in calculating the director’s ownership.
CASH COMPENSATION PAID TO BOARD MEMBERS.
Members of the Board who are not
employees of our company are paid a retainer of $110,000 per year, plus the following fees:
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$ 25,000 Lead Director retainer fee;
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$ 20,000 Audit Committee chair retainer fee;
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$ 15,000 Compensation Committee chair retainer fee; and
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$ 10,000 Retainer fee for all other committee chairs.
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In addition, Donald M. James served as Non-Executive Chairman
during 2015 and received a retainer of $285,000. Mr. James retired as a Board member on December 31, 2015.
DEFERRED COMPENSATION PLAN.
We maintain a
Deferred Compensation Plan for directors who are not employees of our company (Directors’ Deferred Compensation Plan), under which such directors are permitted to defer the cash compensation to which they are entitled for specified periods or
until they cease to be directors. The deferred amounts, at the election of the director, are either (i) credited with interest at prescribed rates; or (ii) converted into a number of stock equivalents equal to the number of shares of our
company’s common stock (based on the market price at the time of deferral) that could be purchased with the amount deferred. Whenever a dividend is paid on our common stock, the stock equivalent accounts are credited with an additional number
of stock units corresponding to the amount of the dividend. At the end of the deferral period, the stock equivalents are settled in shares of our company’s common stock, and interest-based deferrals are settled in cash. The Directors’
Deferred Compensation Plan also provides for a lump-sum settlement of a director’s deferred compensation account in stock or cash, as applicable, if following a Change
in Control (as defined in the Directors’ Deferred Compensation Plan): (i) the participating director ceases to be a member of the Board; (ii) the Directors’ Deferred
Compensation Plan is terminated; or (iii) our company’s capital structure is changed materially. The Directors’ Deferred Compensation Plan was approved by our company’s shareholders in 1993.
DEFERRED STOCK UNITS.
Equity-based grants are awarded to our non-management directors on an annual basis. These grants represent a significant portion of their
compensation package. We believe that equity grants promote a greater alignment of interests between our directors and our shareholders through increasing their ownership of our common stock. Further, we believe that equity grants support our
ability to attract and retain qualified individuals to serve as directors of our company by affording them an opportunity to share in our future success.
In May
2015, 1,717 DSUs were granted to each non-management director pursuant to the 2006 Plan, which was approved by our shareholders in 2006. These units become nonforfeitable on the third anniversary of the grant; however, payment is deferred until the
director ceases to serve on the Board or a COC occurs. The DSUs are an unfunded, unsecured obligation of our company, and no shares have been set aside for these grants. The non-management directors have no right to receive the DSUs until the
restrictions imposed either lapse or are waived. Generally, the restrictions expire when the non-management director ceases to be a director because of retirement (age 70 or above), death, disability or a COC. However, the Compensation Committee,
subject to Board approval, may waive restrictions in the event the non-management director fails to remain a director for any reason other than retirement at the mandatory age, death or disability. During the period the shares are restricted, the
non-management directors have no right to vote the shares. Dividend equivalents are credited as additional DSUs quarterly when dividends are paid on our stock. The DSUs are settled in shares of our common stock when the restrictions expire.
In prior years, grants to our directors were made under the Deferred Stock Plan for Non-employee Directors. No further grants will be made under this plan.
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Vulcan 2016 Proxy Statement
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DIRECTOR COMPENSATION
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DIRECTOR SUMMARY COMPENSATION TABLE
The table below summarizes the compensation paid by our company to non-employee directors for the fiscal year ended December 31, 2015:
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Name
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Fees Earned
or Paid in
Cash ($)
(3)
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Stock
Awards
(4)
($)
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Option
Awards
($)
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Non-Equity
Incentive
Plan
Compen-
sation
($)
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Change
in
Pension Value
and
Nonqualified
Deferred
Compensation
Earnings
($)
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All Other
Compen-
sation
(5)
($)
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Total
($)
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Elaine L. Chao
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110,000
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153,671
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0
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0
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0
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516
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264,187
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Thomas A. Fanning
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110,000
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153,671
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0
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0
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0
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516
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264,187
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O. B. Grayson Hall, Jr.
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120,000
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153,671
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0
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0
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0
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1,343
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275,014
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Cynthia L. Hostetler
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120,000
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153,671
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0
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0
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0
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516
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274,187
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Donald M. James
(1)
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285,000
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153,671
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0
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0
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0
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7,566,196
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8,004,867
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Douglas J. McGregor
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122,500
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153,671
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0
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0
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0
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7,864
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284,035
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Richard T. O’Brien
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130,000
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153,671
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0
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0
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0
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5,407
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289,078
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James T. Prokopanko
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150,000
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153,671
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0
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0
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0
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4,577
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308,248
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Donald B. Rice
(2)
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110,000
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153,671
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0
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0
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0
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7,864
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271,535
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Lee J. Styslinger, III
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110,000
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153,671
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0
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0
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0
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2,007
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265,678
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Vincent J. Trosino
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110,000
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153,671
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0
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0
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0
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6,946
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270,617
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Kathleen Wilson-Thompson
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125,000
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153,671
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0
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0
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0
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4,577
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283,248
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(1)
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Mr. James retired from the Board effective December 31, 2015.
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(2)
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Dr. Rice’s term will expire at the Annual Meeting.
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(3)
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Due to the company’s revised director compensation structure effective January 1, 2015, amounts include catch-up payments made under our prior director compensation program to Mr. McGregor ($12,500
retainer for half year as Lead Director) and Ms. Wilson-Thompson ($5,000 retainer for half year as Safety, Health and Environmental Affairs Committee chair).
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(4)
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This column represents the accounting expense for the awards granted in 2015; therefore, the values shown are not representative of the amounts that may eventually be realized by a director. Pursuant to SEC rules, we
have provided a grant date fair value for stock awards in accordance with the provisions of FASB ASC Topic 718. For DSUs, the fair value is estimated on the date of grant based on the closing market price of our stock on the grant date. At
December 31, 2015, the aggregate number of DSUs accumulated on account for all years of service, including dividend equivalent units, were:
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AGGREGATE ACCUMULATED DSUs
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Name
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Units
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Elaine L. Chao
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1,722
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Thomas A. Fanning
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1,722
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O. B. Grayson Hall, Jr.
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3,797
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Cynthia L. Hostetler
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1,722
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Donald M. James
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1,722
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Douglas J. McGregor
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20,141
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Richard T. O’Brien
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13,982
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James T. Prokopanko
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11,903
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Donald B. Rice
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20,141
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Lee J. Styslinger, III
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5,461
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Vincent J. Trosino
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17,842
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Kathleen Wilson-Thompson
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11,903
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DIRECTOR COMPENSATION
•
DIRECTOR SUMMARY COMPENSATION TABLE
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Vulcan 2016 Proxy Statement
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(5)
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None of our directors received perquisites or other personal benefits in excess of $10,000. The amounts set forth in this column represent the accounting expense for the dividend equivalents earned in 2015 by our
directors for deferred stock and DSUs which earn dividend equivalents. The amount for Mr. James, who retired as an employee in January 2015 and retired from the Board effective December 31, 2015, also includes:
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Total Paid in 2015
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Retirement Income Plan for Salaried Employees
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Qualified
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$
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404,158
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Supplemental (SERP)
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2,829,244
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SERA
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4,248,282
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Interest for 6 month delayed payments
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83,996
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Total Retirement Payments
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7,565,680
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DSU dividend equivalents
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516
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Total All Other Compensation
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$
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7,566,196
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Vulcan 2016 Proxy Statement
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DIRECTOR COMPENSATION
•
DIRECTOR SUMMARY COMPENSATION TABLE
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71
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ANNUAL MEETING AND VOTING INFORMATION
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Why am I receiving these materials?
This proxy statement is furnished in connection with the solicitation by our Board of Directors of proxies to be voted at the 2016 Annual Meeting of Shareholders for the
purposes set forth in the accompanying notice, and at any adjournments or postponements thereof. This proxy statement is being made available to all shareholders of record as of the close of business on March 14, 2016 for use at the Annual
Meeting. This proxy statement, the accompanying proxy card and our 2015 Annual Report to Shareholders are being first mailed or made available to our shareholders on or about March 29, 2016. The meeting will be held at the Grand Bohemian Hotel,
2655 Lane Park Road, Birmingham, Alabama 35223 on Friday, May 13, 2016, at 9:00 a.m., local time.
Why did I receive a Notice of Internet Availability of Proxy Materials in the mail instead of a paper copy of the proxy materials?
We are using the SEC’s rule that allows companies to furnish their proxy materials over the
Internet. As a result, we are mailing to many of our shareholders a Notice of Internet Availability of Proxy Materials instead of a paper copy of the proxy materials. All shareholders receiving such notice will have the ability to access the proxy
materials over the Internet and may request to receive a paper copy of the proxy materials by mail.
How can I access the proxy materials over the internet or obtain a paper copy?
Your Notice of Internet Availability of Proxy Materials, proxy card or voting instruction card will contain instructions on how to:
• view our proxy materials for the Annual Meeting
on the Internet; and
• obtain a paper copy of
the proxy materials by mail.
In addition, the notice contains instructions on how shareholders
may request to receive proxy materials in printed form by mail or electronically on an ongoing basis.
Your Notice of Internet Availability of Proxy Materials will also provide instructions on how to receive your future proxy materials electronically. If you choose to
receive future proxy materials electronically, we will provide instructions, containing a link to the website where those materials are available and a link to the proxy voting website. Your election to receive proxy materials electronically will
remain in effect until you revoke it.
What should I do if I receive more than one Notice of
Internet Availability of Proxy Materials or more than one paper copy of the proxy materials?
You may receive more than one notice of this proxy statement and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one
brokerage account, you may receive a separate notice or a separate voting instruction card for each brokerage account in which you hold shares. If you are a shareholder of record and your shares are registered in more than one name, you may receive
more than one notice or more than one proxy card. To vote all of your shares by proxy, you must either (i) complete, date, sign and return each proxy card and voting instruction card that you receive or (ii) vote over the Internet or
telephone the shares represented by each notice that you receive (unless you have requested and received a proxy card or voting instruction card for the shares represented by one or more of the notices).
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What proposals are to be presented at the Annual Meeting?
The purpose of the Annual Meeting is to (i) elect four nominees as directors, (ii) approve
the 2016 Omnibus Long-Term Incentive Plan, (iii) approve, on an advisory basis, the compensation of our named executive officers (NEOs), (iv) ratify the appointment of Deloitte & Touche LLP as Vulcan’s independent registered
public accounting firm for 2016, and (v) conduct such other business as may properly come before the Annual Meeting or any adjournments or postponements thereof.
Who can attend the Annual Meeting?
Only shareholders as of the close of business on March 14, 2016 (the record date for the Annual Meeting), their authorized representatives and invited guests of our
company will be permitted to attend the Annual Meeting. Proof of ownership of Vulcan common stock as of the record date, along with personal identification (such as a driver’s license or passport), must be presented in order to be admitted to
the Annual Meeting. If your shares are held in the name of a bank, broker, trustee or nominee and you plan to attend the Annual Meeting in person, you must bring a brokerage statement, and a legal proxy from your bank, broker, trustee or nominee
entitling you to vote the shares held as of the record date at the Annual Meeting, along with personal identification, to be admitted to the Annual Meeting.
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72
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ANNUAL MEETING AND VOTING INFORMATION
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Vulcan 2016 Proxy Statement
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No cameras, recording equipment, electronic devices, large bags, briefcases or packages will be permitted in the Annual
Meeting.
Who is entitled to vote?
All of our shareholders as of the record
date, March 14, 2016, will be entitled to vote at the Annual Meeting. As of the close of business on that date, approximately 133,595,063 shares were outstanding and entitled to vote. Each share of common stock is entitled to one vote on each
matter properly brought before the meeting. Our bylaws do not provide for cumulative voting and, accordingly, our shareholders do not have cumulative voting rights with respect to the election of directors.
What is the difference between a shareholder of record and a beneficial holder of shares?
If your common stock is held directly in your name with our transfer agent, Computershare Shareowner Services, you are considered a “shareholder of record” with
respect to those shares. If this is the case, the notice or proxy materials have been sent or provided directly to you.
If your common stock is held in a stock
brokerage account or by a bank or other nominee, you are considered the “beneficial holder” of the shares held for you in what is known as “street name.” If this is the case, the notice card or proxy materials should have been
forwarded to you by your brokerage firm, bank or other nominee, or their agent, which is considered the shareholder of record with respect to these shares. As a beneficial holder, you have the right to direct your bank, broker, trustee or nominee on
how to vote the shares by using the voting instruction card or by following their instructions for voting by telephone or internet.
How do I vote?
Proxies are solicited to give all shareholders who are entitled to vote on the matters that come before the meeting the opportunity to vote their shares whether or not
they attend the meeting in person. You can vote by one of the following manners:
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By Internet
—Shareholders of record may submit proxies over the Internet by following the instructions on the Notice of Internet Availability of Proxy Materials or the proxy card (if received by mail).
Shareholders who are beneficial owners may vote by Internet by following the instructions on the voting instruction card sent to them by their bank, broker, trustee or nominee.
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By Telephone
—Shareholders of record who live in the United States or Canada may submit proxies by telephone by calling the toll-free number on your proxy card (if received by mail) and following the
instructions. Shareholders of record will need to have the control number that appears on their proxy card available when voting. In addition, shareholders who are beneficial owners living in the United States or Canada and who have received a
voting instruction card by mail from their bank, broker, trustee or nominee may vote by phone by calling the number specified on the voting instruction card. Those shareholders should check the voting instruction card for telephone voting
availability.
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By Mail
—Shareholders of record who have received a paper copy of a proxy card by mail may submit proxies by completing, signing and dating their proxy card and mailing it in the accompanying pre-addressed
envelope. Shareholders who are beneficial owners who have received a voting instruction card from their bank, broker or nominee may return the voting instruction card by mail as set forth on the card.
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In Person
—Shareholders of record may vote shares held in their name in person at the Annual Meeting. You also may be represented by another person at the Annual Meeting by executing a proper proxy
designating that person. Shares for which a shareholder is the beneficial holder but not the shareholder of record may be voted in person at the Annual Meeting only if such shareholder is able to obtain a legal proxy from the bank, broker or nominee
that holds the shareholder’s shares, indicating that the shareholder was the beneficial holder as of the record date and the number of shares for which the shareholder was the beneficial owner on the record date.
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Shareholders are encouraged to vote their proxies by Internet, telephone or completing, signing, dating and returning a proxy card or voting instruction card, but not by
more than one method. If you vote by more than one method, or vote multiple times using the same method, only the last-dated vote that is received by the inspector of election will be counted, and each previous vote will be disregarded.
If you receive more than one set of proxy materials or more than one proxy card or voting instruction card, it may mean that you hold shares of Vulcan stock in more than
one account. You must return a proxy or voting instruction card or vote using one of the methods described above for EACH account in which you own shares.
What
constitutes a quorum for the Annual Meeting?
A majority of the issued and outstanding shares of the common stock entitled to vote, represented in person or by
proxy, is required to constitute a quorum.
How many votes are required to pass each of the proposals?
The votes required to approve each matter to be considered by Vulcan’s shareholders at the Annual Meeting are set forth below:
Proposal 1—Election of Directors:
Each Vulcan shareholder has the right to vote each share of stock owned by such shareholder on the record date for four
director nominees. Cumulative voting is not permitted. To be elected, a director-nominee must receive a majority of the votes cast at the Annual Meeting. Abstentions and broker non-votes will not be counted as votes cast for such purposes and,
therefore, will have no effect on the results of the election.
Proposal 2—Approval of the 2016 Omnibus Long-Term Incentive Plan:
The affirmative vote of
a majority of votes
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Vulcan 2016 Proxy Statement
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ANNUAL MEETING AND VOTING INFORMATION
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cast on this proposal are required to approve the new Vulcan Materials Company 2016 Omnibus Long-Term Incentive Plan. Abstentions and broker non-votes will have no effect on the results of this
vote.
Proposal 3—Advisory Vote on Compensation of our Named Executive Officers:
The affirmative vote of a majority of the votes cast on this proposal is
required to approve, on an advisory basis, the compensation of the named executive officers set forth in this proxy statement. Abstentions and broker non-votes will have no effect on the results of this vote.
Proposal 4—Ratification of Appointment of Deloitte & Touche LLP:
The affirmative vote of a majority of the votes cast on this proposal is required to
ratify the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for 2016. Abstentions and broker non-votes will have no effect on the results of this vote.
Who is soliciting my vote?
Our Board of Directors is soliciting your vote for
matters being submitted for shareholder approval at the Annual Meeting.
Giving us your proxy means that you authorize the proxy holders identified on the proxy card
to vote your shares at the meeting in the manner you direct. If you sign and return the enclosed proxy card but do not specify how your shares are to be voted, your shares will be voted in accordance with the recommendations of the Board. If any
other matters are properly presented at the Annual Meeting for consideration, the persons named as proxies in the proxy card will vote as recommended by the Board or, if no recommendation is given, in their own discretion.
How does the Board recommend shareholders vote?
The Board recommends that you
vote:
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FOR
the election of the following two individuals nominated by the Board as directors for three-year terms: Elaine L. Chao and Lee J. Styslinger, III; and two individuals nominated for one-year terms: Douglas J.
McGregor and Vincent J. Trosino.
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FOR
the approval of the Vulcan Materials Company 2016 Omnibus Long-Term Incentive Plan;
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FOR
the approval, on an advisory basis, of the compensation of our named executive officers; and
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FOR
the ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting firm for 2016.
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Will my shares be voted if I do nothing?
If you are a shareholder of record,
you must sign and return a proxy card, submit your proxy by telephone or Internet, or attend the Annual Meeting in person, in order for your shares to be voted.
If
your common stock is held through a broker, bank or other nominee, you will receive instructions from such entity that you must follow in order to have your shares voted. You must instruct the broker how to vote your shares.
If you do not provide voting instructions, your shares will not be voted on any proposal on which the broker, bank or other nominee does not have discretionary authority to vote. This is called a
“broker non-vote.” In these cases, the broker, bank or nominee can register your shares as being present at the Annual Meeting for purposes of determining the presence of a quorum but will not be able to vote on those matters for which
specific authorization is required under the rules of the NYSE.
If you are a beneficial owner whose shares are held of record by a broker, bank or nominee, then your
broker, bank or nominee has discretionary voting authority under NYSE rules to vote your shares on the ratification of the appointment of Deloitte & Touche LLP as Vulcan’s independent registered public accounting firm for 2016, even if
the broker, bank or nominee does not receive voting instructions from you. However, your broker, bank or nominee does not have discretionary authority to vote on (i) the election of the four nominees as directors, (ii) the approval of the
2016 Plan, or (iii) the advisory approval of compensation of our NEOs.
How can I revoke my proxy?
If you are a shareholder of record, you may revoke your proxy at any time before it is voted at the meeting by taking one of the following actions:
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by giving written notice of the revocation prior to the commencement of the Annual Meeting to: Corporate Secretary, Vulcan Materials Company, 1200 Urban Center Drive, Birmingham, Alabama 35242;
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by executing and delivering another valid proxy with a later date;
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by voting by telephone or Internet at a later date; or
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by attending the Annual Meeting and voting in person by written ballot, if you are a shareholder of record or, if you are a beneficial owner of your shares, with a legal proxy from the entity that holds your shares
giving you the right to vote the shares.
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If you are a beneficial owner of your shares and you vote by proxy, you may change your vote by submitting new
voting instructions to your bank, broker or nominee in accordance with that entity’s procedures.
If you vote the same shares by more than one method or vote
multiple times with respect to the same shares using the same method, only the last-dated vote that is received will be counted, and each previous vote will be disregarded.
Is my vote confidential?
Proxy instructions, ballots and voting tabulations
that identify individual shareholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within our company or to third parties, except: (1) as necessary to meet applicable legal requirements;
(2) to allow for the tabulation of votes and certification of the vote; and (3) to facilitate a successful proxy solicitation.
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74
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ANNUAL MEETING AND VOTING INFORMATION
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Vulcan 2016 Proxy Statement
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Who will pay for the costs involved in the solicitation of proxies?
The company is making this solicitation and will pay the entire cost of preparing, assembling, printing, mailing and distributing the notices and these proxy materials
and soliciting votes. In addition to the mailing of notices and these proxy materials, the solicitation of proxies or votes may be made in person or by telephone or email by directors, officers, or regular employees of the company. In addition, the
company has engaged MacKenzie Partners, Inc. to act as its proxy solicitor and has agreed to pay it approximately $9,500 plus reasonable fees and expenses for such services.
What is “householding” and how does it affect me?
We have adopted a
procedure, approved by SEC, called “householding.” Under this procedure, shareholders of record who have the same address and last name and do not participate in electronic delivery of proxy materials or in “notice and access”
will receive only one copy of this Notice of Annual Meeting and proxy statement and the 2015 Annual Report to Shareholders, unless we are notified that one or more of these shareholders wishes to continue receiving individual copies. If you and
other Vulcan shareholders living in your household do not have the same last name, you also may request to receive only one copy of future proxy statements and annual reports to shareholders.
Householding reduces our printing costs and postage fees and conserves natural resources. Shareholders who participate in householding will continue to receive separate
proxy cards.
If you are eligible for householding but you and other shareholders of record with whom you share an address currently receive multiple copies of this
Notice of Annual Meeting and proxy statement and any accompanying documents, or if you hold Vulcan stock in more than one account, and in either case you wish to receive only a single copy of each document for your household, please obtain
instructions by contacting us at the following address or phone number: Vulcan Materials Company, 1200 Urban Center Drive, Birmingham, Alabama 35242, Attention: Mark D. Warren, Director, Investor Relations, phone: (205) 298-3200.
If you participate in householding and wish to receive a separate copy of this Notice of Annual Meeting and proxy statement and any accompanying documents, please contact
us at the address or phone number indicated above and a separate copy will be sent to you promptly. If you do not wish to continue to participate in householding and prefer to receive separate copies of these documents in the future, please contact
us at the address or phone number indicated above.
If you are a beneficial owner, you can request information about householding from your broker, bank or other holder of
record.
Could other matters be decided at the Annual Meeting?
As of the
mailing date of this proxy statement, we did not know of any matters to be raised at the Annual Meeting other than those referred to in this proxy statement.
If you
return your signed and completed proxy card or vote by telephone or Internet and other matters are properly presented at the Annual Meeting for consideration, your shares will be voted as the Board of Directors recommends.
Where can I find the voting results of the Annual Meeting?
The preliminary
voting results will be announced at the Annual Meeting. The final voting results will be reported in a Current Report on Form 8-K filed with the SEC within four business days of the Annual Meeting and posted on our website.
Whom should I call if I have questions about the Annual Meeting?
If you have
any questions or need any assistance in voting your shares, please contact our proxy solicitor, whose information is listed below:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New York 10016
Telephone: (212) 929-5500 (Call Collect) or
Call Toll-Free (800) 322-2885
proxy@MacKenziePartners.com
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Vulcan 2016 Proxy Statement
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ANNUAL MEETING AND VOTING INFORMATION
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75
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GENERAL INFORMATION
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Under Section 16(a) of the Exchange Act, each of our directors, executive officers, and any beneficial owner of more than 10% of our common stock, is
required to file with the SEC initial reports of beneficial ownership of our common stock and reports of changes in beneficial ownership of our common stock. Such persons also are required by SEC regulations to furnish us with copies of all such
reports. Based solely on our review of the copies of such reports furnished to us for the year ended December 31, 2015, and on the written representations made by our directors and executive officers that no other reports were required, we
believe that during the year ended December 31, 2015, all reports were filed in a timely manner except for two reports of David J. Grayson, one of our officers. Mr. Grayson failed to include shares of our common stock held directly on his
Form 3 filed with the SEC on January 8, 2015, and filed a Form 3/A with the SEC on February 2, 2016 to reflect such shares. Due to a service provider reporting error, Mr. Grayson also failed to timely file a Form 4 to report the
disposition of certain shares of our common stock in connection with a reallocation of funds within his 401(k) account, and filed a Form 4 on August 19, 2015 to reflect such transaction.
SHAREHOLDER PROPOSALS FOR 2017
To be eligible for consideration for inclusion in our proxy statement and form of proxy for our 2017 Annual Meeting, a shareholder’s proposal must be received by us
at our principal office no later than November 29, 2016. Proposals should be addressed to Jerry F. Perkins Jr., General Counsel and Secretary, 1200 Urban Center Drive, Birmingham, Alabama 35242. Proposals received after that date will be
considered untimely and will not be eligible for inclusion in the 2017 proxy statement. If a shareholder desires to bring a matter before our annual meeting and the matter is submitted outside the process of Exchange Act Rule 14a-8, including with
respect to nominations for election as directors, the shareholder must follow the procedures set forth in our bylaws. Our bylaws provide generally that shareholder proposals and director nominations to be considered at an annual meeting may be made
by a shareholder only if (1) the shareholder is a shareholder of record and is entitled to vote at the meeting, and (2) the shareholder gives timely written notice of the matter to our corporate secretary. To be timely, a
shareholder’s notice must be received at our principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding
year’s annual meeting or between January 13, 2017 and February 12, 2017. However, in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder
to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual meeting and not later than the close of business on the later of the 90th day prior to the date of
such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day on which
public announcement of the date of such meeting is first made by our company. The notice must set forth the information required by the provisions of our bylaws dealing with shareholder proposals and nominations of directors.
FORWARD-LOOKING STATEMENTS
Certain matters discussed in this proxy statement, including expectations regarding future performance, contain forward-looking statements. Statements that are not
historical fact, including statements about Vulcan’s beliefs and expectations, are forward-looking statements. Generally, these statements relate to future financial performance, results of operations, business plans or strategies, projected or
anticipated revenues, expenses, earnings (including EBITDA and other measures), dividend policy, shipment volumes, pricing, levels of capital expenditures, intended cost reductions and cost savings, anticipated profit improvements and/or planned
divestitures and asset sales. These forward-looking statements are sometimes identified by the use of terms and phrases such as “believe,” “should,” “would,” “expect,” “project,”
“estimate,” “anticipate,” “intend,” “plan,” “will,” “can,” “may” or similar expressions elsewhere in this document. These statements are subject to numerous risks, uncertainties,
and assumptions, including but not limited to general business conditions, competitive factors, pricing, energy costs, and other risks and uncertainties discussed in the reports Vulcan periodically files with the SEC.
Forward-looking statements are not guarantees of future performance and actual results, developments, and business decisions may vary significantly from those expressed
in or implied by the forward-looking statements. The following risks related to Vulcan’s business, among others, could cause actual results to differ materially from those described in the forward-looking statements: those associated with
general economic and business conditions; the timing and amount of federal, state and local funding for infrastructure; risks that changes in Vulcan’s effective tax rate can adversely impact results; risks associated with Vulcan’s reliance
on information technology infrastructure for its ticketing, procurement, financial statements and other processes that could adversely affect operations in the event that the infrastructure does not work as intended or experiences technical
difficulties or is subjected to cyber attacks; the impact of the state of the global economy on Vulcan’s business and financial condition and access to capital markets; changes in the level of spending for private residential and private
nonresidential construction; the highly competitive nature of the construction materials industry; the impact of future regulatory or legislative actions; the outcome of pending legal proceedings; pricing of Vulcan’s products; weather and other
natural phenomena; energy costs; costs of hydrocarbon-based raw materials; healthcare costs; the amount of long-term debt
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76
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GENERAL INFORMATION
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SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
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Vulcan 2016 Proxy Statement
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and interest expense incurred by Vulcan; changes in interest rates; the impact of Vulcan’s below investment-grade debt rating on Vulcan’s cost of capital; volatility in pension plan
asset values and liabilities which may require cash contributions to the pension plans; the impact of environmental clean up costs and other liabilities relating to previously divested businesses; Vulcan’s ability to secure and permit
aggregates reserves in strategically located areas; Vulcan’s ability to manage and successfully integrate acquisitions; the potential of goodwill or long-lived asset impairment; the potential impact of future legislation or regulations relating
to climate change, greenhouse gas emissions or the definition of minerals; and other assumptions, risks and uncertainties detailed from time to time in the reports filed by Vulcan with the SEC. All forward-looking statements in this communication
are qualified in their entirety by this cautionary statement.
Vulcan disclaims and does not undertake any obligation to update or revise any forward-looking statement in this document except as required by law.
VULCAN MATERIALS COMPANY
JERRY F. PERKINS JR.
General Counsel and
Secretary
1200 Urban Center Drive
Birmingham, Alabama 35242
March 29, 2016
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Vulcan 2016 Proxy Statement
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GENERAL INFORMATION
•
FORWARD-LOOKING STATEMENTS
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77
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ANNEX A: RECONCILIATION OF NON-GAAP FINANCIAL MEASURES
Generally Accepted Accounting Principles (GAAP) does not define “cash gross profit” or “Earnings Before Interest, Taxes, Depreciation and
Amortization” (EBITDA or “EBITDA Economic Profit” (EBITDA EP)). Thus, cash gross profit and EBITDA should not be considered as alternatives to earnings measures defined by GAAP. We present these metrics for the convenience of
investment professionals who use these metrics in their analyses and for shareholders who need to understand the metrics we use to assess performance. The investment community often uses these metrics as indicators of a company’s ability to
incur and service debt and to assess the operating performance of a company’s business. We use cash gross profit and EBITDA and other such measures to assess the operating performance of our various business units and the consolidated company.
We also use EBITDA EP for our executive compensation short-term performance metric. Additionally, we adjust EBITDA for certain items to provide a more consistent comparison of performance from period to period. We do not use these metrics as a
measure to allocate resources. Reconciliations of these metrics to their nearest GAAP measures are presented below:
EBITDA AND ADJUSTED
EBITDA
EBITDA is an acronym for Earnings Before Interest, Taxes, Depreciation and Amortization and excludes discontinued operations.
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IN MILLIONS
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2015
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2014
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2013
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Net earnings
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$221.2
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$204.9
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$24.4
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Provision for (benefit from) income taxes
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94.9
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91.7
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(24.5)
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Interest expense, net of interest income
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220.3
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242.4
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201.7
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(Earnings) loss on discontinued operations, net of tax
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11.7
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2.2
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(3.6)
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Depreciation, depletion, accretion and amortization
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274.8
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279.5
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307.1
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EBITDA
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822.9
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$820.7
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$505.1
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Gain on sale of real estate and businesses
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$(6.3)
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$(238.5)
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$(36.8)
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Charges associated with acquisitions or divestitures
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9.5
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21.2
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0.5
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Restructuring charges
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5.0
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1.3
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1.5
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Asset impairment
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5.2
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0.0
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0.0
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Adjusted EBITDA
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$836.3
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$604.7
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$470.3
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EBITDA EP CALCULATION
EBITDA EP is EP Adjusted EBITDA less capital charge (average operating capital employed x pretax cost of capital).
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IN MILLIONS
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2015
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Adjusted EBITDA
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$
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836.3
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Performance adjustments
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(32.5)
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EP Adjusted EBITDA
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$
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803.8
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Average operating capital employed
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$
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3,570.4
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Pretax cost of capital
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13.2%
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Capital charge
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$
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(471.8)
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EBITDA EP
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$
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332.0
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ANNEX A: RECONCILIATION OF NON-GAAP FINANCIAL MEASURES
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Vulcan 2016 Proxy Statement
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CASH GROSS PROFIT
Cash gross profit adds back noncash charges for depreciation, depletion, accretion and amortization to gross profit.
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IN MILLIONS, EXCEPT PER TON DATA
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2015
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2014
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2013
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Aggregates segment
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Gross profit
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$755.7
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$544.1
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$413.3
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Depreciation, depletion, accretion and amortization
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228.5
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227.0
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224.8
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Aggregates segment cash gross profit
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$984.2
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$771.1
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$638.1
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Unit shipments—tons
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178.3
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162.4
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145.9
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Aggregates segment cash gross profit per ton
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$5.52
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$4.75
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$4.37
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AGGREGATES SEGMENT GROSS PROFIT MARGIN AS A PERCENTAGE
OF FREIGHT-ADJUSTED REVENUES
We present
Aggregates segment gross profit margin as a percentage of freight-adjusted revenues as it is consistent with the basis by which we review our operating results. We believe that this presentation is meaningful to our investors as it excludes freight,
delivery and transportation revenues, which are pass-through activities. It also excludes immaterial other revenues related to services, such as landfill tiping fees, that are derived from our aggregates business. Reconciliation of this metric to
its nearest GAAP measure is presented below.
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IN MILLIONS
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2015
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2014
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2013
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Aggregates segment gross profit
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$755.7
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$544.1
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$413.3
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Segment sales
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$2,777.8
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$2,346.4
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$2,025.0
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Excluding
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Freight, delivery and transportation revenues
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644.7
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532.2
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424.9
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Other revenues
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20.6
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20.2
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24.1
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Freight-adjusted revenues
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$2,112.5
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$1,794.0
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$1,576.0
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Gross profit as a percentage of freight-adjusted revenues
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36%
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30%
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26%
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Vulcan 2016 Proxy Statement
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ANNEX A: RECONCILIATION OF NON-GAAP FINANCIAL MEASURES
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ANNEX B: 2016 OMNIBUS LONG-TERM INCENTIVE PLAN
The purposes of the Plan are to encourage and enable selected Employees, Directors and
Consultants of the Company and its Affiliates to acquire or increase their holdings of Common Stock and other equity-based interests in the Company and/or to provide other incentive awards in order to promote a closer identification of their
interests with those of the Company and its shareholders, and to provide flexibility to the Company in its ability to motivate, attract and retain the services of Participants upon whose judgment, interest and special effort the successful conduct
of its operation largely depends. These purposes may be carried out through the granting of Awards to selected Participants.
The Effective Date of the Plan shall be May 13, 2016 (the “
Effective
Date
”). Awards may be granted on or after the Effective Date, but no Awards may be granted after May 12, 2026. Awards that are outstanding at the end of the Plan term (or such earlier termination date as may be established by the Board
pursuant to Section 17(a)) shall continue in accordance with their terms, unless otherwise provided in the Plan or an Award Agreement.
In addition to other terms defined herein or in an Award Agreement, the following
terms shall have the meanings given below:
(a)
Administrator
means the Board and, upon its delegation of all or part of its authority to
administer the Plan to the Committee, the Committee.
(b)
Affiliate
means any Parent or Subsidiary of the Company, and also includes any other
business entity which controls, is controlled by or is under common control with the Company; provided, however, that the term “Affiliate” shall be construed in a manner in accordance with the registration provisions of applicable federal
securities laws if and to the extent required.
(c)
Applicable Law
means any applicable laws, rules or regulations (or similar guidance),
including but not limited to the New Jersey Business Corporation Act, the Securities Act, the Exchange Act, the Code and the listing or other rules of any applicable stock exchange. References to applicable laws, rules and regulations, including
references to any sections or other provisions of applicable laws, rules and regulations, shall also refer to any successor provisions thereto unless the Administrator determines otherwise.
(d)
Award
means a grant under the Plan of an Incentive Option; a Nonqualified Option; a Stock Appreciation Right; a Restricted Stock Award; a
Restricted Stock Unit; a Deferred Stock Unit; a Performance Share; a Performance Unit; a Phantom Stock Award; an Other Stock-Based Award; a Dividend Equivalent Award; and/or any other award granted under the Plan.
(e)
Award Agreement
means an award agreement or certificate (which may be in written or electronic form, in the Administrator’s discretion,
and which includes any amendment or supplement thereto) between the Company and a Participant, specifying such terms, conditions and restrictions as may be established by the Administrator with regard to an Award and shares of Common Stock or any
other benefit related to an Award.
(f)
Board
or
Board of Directors
means the Board of Directors of the Company.
(g)
Cause
means, unless the Administrator determines otherwise, (i) a Participant’s termination of employment or service resulting from
the Participant’s: (A) engagement in misconduct which is materially injurious to the Company or its Affiliates, (B) continued refusal to substantially perform his or her duties to the Company or an Affiliate, (C) dishonesty in
the performance of his or her duties to the Company or an Affiliate, (D) commission of an act or acts constituting any (x) fraud against, or misappropriation or embezzlement from, the Company or any of its Affiliates, or (y) crime
involving moral turpitude or (E) material breach of any confidentiality, non-solicitation, non-competition, non-disparagement or similar covenant applicable to the Participant; or (ii) if the Participant has entered into or is a
participant in any employment, change in control, consulting or other similar agreement, plan or policy with or of the Company or an Affiliate and such agreement, plan or
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ANNEX B: 2016 OMNIBUS LONG-TERM INCENTIVE PLAN
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Vulcan 2016 Proxy Statement
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policy defines “Cause,” “Cause” shall be as defined under such agreement, plan or policy. The determination of “Cause” shall be made by the Administrator and its
determination shall be final and conclusive. Without in any way limiting the effect of the foregoing, for purposes of the Plan and an Award, a Participant’s employment or service shall also be deemed to have terminated for Cause if, after the
Participant’s employment or service has terminated, facts and circumstances are discovered that would have justified, in the opinion of the Administrator, a termination for Cause.
(h)
Change of Control
. For the purpose of this Agreement, a “Change of Control” shall (except as may be otherwise required, if at all,
under Code Section 409A) mean the earliest date upon which any of the following events has occurred:
(i) The acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a “
Person
”) of beneficial ownership (within the meaning of
Rule 13d-3
promulgated
under the Exchange Act) of thirty percent (30%) or more of either (A) the then outstanding shares of Common Stock (the “
Outstanding Company Common Stock
”) or (B) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election of directors (the “
Outstanding Company Voting Securities
”);
provided
,
however
, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change of Control: (w) any acquisition directly from the Company, (x) any acquisition by the Company, (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by
the Company or any Affiliate or (z) any acquisition by any entity pursuant to a transaction which complies with clauses (A), (B) and (C) of subsection (iii) of this Section 3(h); or
(ii) Individuals who, as of the Effective Date, constitute the Board (the “
Incumbent Board
”) cease for any reason to
constitute at least a majority of the Board;
provided
,
however
, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual was a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation or similar corporate transaction involving the Company or any of its
Subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its Subsidiaries (each, a “
Business Combination
”),
in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners, respectively, of the Outstanding Company Common Stock and the Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of, respectively, the then outstanding shares of common stock (or, for a noncorporate entity, equivalent
securities) and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors (or, for a noncorporate entity, equivalent governing body), as the case may be, of the entity resulting from
such Business Combination (including, without limitation, an entity that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any entity resulting
from such Business Combination or any employee benefit plan (or related trust) of the Company or such entity resulting from such Business Combination) beneficially owns, directly or indirectly, thirty percent (30%) or more of, respectively, the
then outstanding shares of common stock (or, for a noncorporate entity, equivalent securities) of the entity resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such entity except to the
extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of the corporation (or, for a noncorporate entity, equivalent governing body) resulting from such
Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.
For the purposes of clarity, a transaction shall not constitute a Change of Control if its principal purpose is to change the state of the Company’s
incorporation, create a holding company that would be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transaction or is another transaction of other similar effect.
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Notwithstanding the preceding provisions of Section 3(h), in the event that any Awards granted under
the Plan are deemed to be deferred compensation subject to (and not exempt from) the provisions of Code Section 409A, then distributions related to such Awards to be made upon a Change of Control may be permitted, in the Administrator’s
discretion, upon the occurrence of one or more of the following events (as they are defined and interpreted under Code Section 409A): (A) a change in the ownership of the Company; (B) a change in effective control of the Company; or
(C) a change in the ownership of a substantial portion of the assets of the Company.
(i)
Code
means the Internal Revenue Code of 1986,
as amended. Any reference herein to a specific Code Section shall be deemed to include all related regulations or other guidance with respect to such Code section.
(j)
Committee
means the Compensation Committee of the Board (or a subcommittee thereof), or such other committee of the Board which may be
appointed to administer the Plan in whole or in part.
(k)
Common Stock
means the common stock of Vulcan Materials Company, $1.00 par value,
or any successor securities thereto.
(l)
Company
means Vulcan Materials Company, a New Jersey corporation, together with any successor
thereto. In the Administrator’s discretion, the term “Company” may also refer to the Company and any or all of its Affiliates.
(m)
Consultant
means an independent contractor, consultant or advisor providing services (other than capital-raising services) to the Company or an Affiliate.
(n)
Covered Employee
shall have the meaning given the term in Code Section 162(m).
(o)
Deferred Stock Unit
means a Restricted Stock Unit, the terms of which may, in the Administrator’s discretion, provide for delivery of
shares of Common Stock, cash or a combination thereof on a date or dates subsequent to the date the Award is earned and vested, as provided in Section 9.
(p)
Director
means a member of the Board.
(q)
Disability
shall, except as may be otherwise determined by the Administrator, mean Permanent and Total Disability whereby the Participant is entitled to long-term disability benefits under the applicable long-term disability plan of the
Company or an Affiliate, or, to the extent the Participant is not eligible to participate in any Company-sponsored plan, under the guidelines of the Social Security Administration; provided that, if the Participant has entered into or is a
participant in any employment, change in control, consulting or other similar agreement, plan or policy with or of the Company or an Affiliate that defines “Disability,” then “Disability” shall have the meaning given in such
agreement, plan or policy, and, provided further, that “Disability” shall be defined in accordance with Code Section 409A if and to the extent required. The Administrator shall have authority to determine if a Disability has occurred.
(r)
Dividend Equivalent Award
means a right granted to a Participant pursuant to Section 13 to receive the equivalent value (in cash or
shares of Common Stock) of dividends paid on Common Stock.
(s)
Effective Date
means the effective date of the Plan, as provided in
Section 2.
(t)
Employee
means any person who is an employee of the Company or any Affiliate (including entities which become Affiliates
after the Effective Date). For this purpose, an individual shall be considered to be an Employee only if there exists between the individual and the Company or an Affiliate the legal and bona fide relationship of employer and employee (taking into
account Code Section 409A considerations if and to the extent applicable); provided, however, that with respect to Incentive Options, “Employee” means any person who is considered an employee of the Company or any Parent or Subsidiary
for purposes of Treasury Regulation Section 1.421-1(h).
(u)
Exchange Act
means the Securities Exchange Act of 1934, as amended.
(v)
Exercise Price
means the price at which an Option or SAR may be exercised, as provided in Section 7(b) and Section 8(a),
respectively.
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(w)
Fair Market Value
per share of the Common Stock shall, unless otherwise determined by the
Administrator or provided in the Plan, be determined in accordance with the following provisions: (A) if the shares of Common Stock are listed for trading on the New York Stock Exchange, LLC (the “
NYSE
”) or another national or
regional stock exchange, the Fair Market Value shall be the closing sales price per share of the shares on the NYSE or other principal stock exchange on which such securities are listed on the date an Award is granted or other determination is made
(such date of determination being referred to herein as a “
valuation date
”), or, if there is no transaction on such date, then on the trading date nearest preceding the valuation date for which closing price information is
available, and, provided further, if the shares are not listed for trading on the NYSE or another stock exchange but are regularly quoted on an automated quotation system (including the OTC Bulletin Board and the quotations published by the OTC
Markets Group) or by a recognized securities dealer, the Fair Market Value shall be the closing sales price for such shares as quoted on such system or by such securities dealer on the valuation date, but if selling prices are not reported, the Fair
Market Value of a share of Common Stock shall be the mean between the high bid and low asked prices for the Common Stock on the valuation date (or, if no such prices were reported on that date, on the last date such prices were reported), as
reported in The Wall Street Journal or such other source as the Administrator deems reliable; or (B) if the shares of Common Stock are not listed or reported in any of the foregoing, then the Fair Market Value shall be determined by the
Administrator based on such valuation measures or other factors as it deems appropriate. Notwithstanding the foregoing, (i) with respect to the grant of Incentive Options, the Fair Market Value shall be determined by the Administrator in
accordance with the applicable provisions of Section 20.2031-2 of the Federal Estate Tax Regulations, or in any other manner consistent with Code Section 422; and (ii) Fair Market Value shall be determined in accordance with Code
Section 409A if and to the extent required.
(x)
Freestanding SAR
means a SAR that is granted without relation to an Option, as provided
in Section 8.
(y)
Full Value Award
means an Award, other than in the form of an Option or SAR, which is settled by the issuance of
Common Stock.
(z)
Good Reason
means, unless the Administrator determines otherwise, in the context of a Change of Control, (i) a
Participant’s termination due to any of the following without the Participant’s consent: (A) with respect to Employees or Consultants, the assignment to the Participant of duties or responsibilities materially inconsistent with, or a
material diminution in, the Participant’s position, authority, duties or responsibilities as in effect immediately prior to the Change of Control, or a material reduction in the Participant’s base salary as in effect immediately prior to
the Change of Control (excluding any reduction in the Participant’s salary that is part of a plan to reduce salaries of comparably situated employees or consultants of the Company generally); and (B) with respect to Directors, the
Participant’s ceasing to serve as a Director, or, if the Company is not the surviving Company in a Change of Control event, a member of the board of directors of the surviving entity, in either case, due to the Participant’s failure to be
nominated or elected to serve as a director of such entity, but not due to the Participant’s decision not to continue service on the Board of Directors of the Company or the board of directors of the surviving entity, as the case may be, or
(ii) if the Participant has entered into or is a participant in any employment, change in control, consulting or other similar agreement, plan or policy with or of the Company or an Affiliate that defines “Good Reason,” then
“Good Reason” shall have the meaning given in such agreement, plan or policy; provided that, in any case, notwithstanding anything to the contrary in the foregoing subparts (i) or (ii), the Participant shall only have “Good
Reason” to terminate employment or service following the applicable entity’s failure to remedy the act which is alleged to constitute “Good Reason” within thirty (30) days following such entity’s receipt of written
notice from the Participant specifying such act, so long as such notice is provided within sixty (60) days after such event has first occurred. In the context other than a Change of Control, “Good Reason” shall be as determined by the
Administrator. The determination of “Good Reason” shall be made by the Administrator and its determination shall be final and conclusive.
(aa)
Incentive Option
means an Option that is designated by the Administrator as an Incentive Option pursuant to Section 7 and intended to
meet the requirements of incentive stock options under Code Section 422.
(bb)
Nonqualified Option
means an Option granted under
Section 7 that is not intended to qualify as an incentive stock option under Code Section 422.
(cc)
Option
means a stock option
granted under Section 7 that entitles the holder to purchase from the Company a stated number of shares of Common Stock at the Exercise Price, and subject to such terms and conditions, as may be set forth in the Plan or an Award Agreement or
established by the Administrator.
(dd)
Option Period
means the term of an Option, as provided in Section 7(d), not to exceed ten
(10) years.
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(ee)
Other Stock-Based Award
means a right, granted to a Participant under Section 12, that
relates to or is valued by reference to shares of Common Stock or other Awards relating to shares of Common Stock.
(ff)
Parent
means a
“parent corporation,” whether now or hereafter existing, as defined in Code Section 424(e).
(gg)
Participant
means an
individual who is an Employee employed by, or a Director or Consultant providing services to, the Company or an Affiliate who satisfies the requirements of Section 6 and is selected by the Administrator to receive an Award under the Plan.
(hh)
Performance Award
means a Performance Share Award and/or a Performance Unit Award, as provided in Section 10.
(ii)
Performance Measures
mean one or more performance factors or criteria which may be established by the Administrator with respect to an Award.
Performance Measures may be based on such performance factors or criteria as the Administrator in its discretion may deem appropriate; provided, however, that, if and to the extent required under Code Section 162(m) with respect to Awards
granted to Covered Employees that are intended to qualify as “performance-based compensation” under Code Section 162(m), such Performance Measures shall be objective and shall be based upon one or more of the following criteria (as
determined by the Administrator in its discretion): economic profit; cash flow; cash flow from operations; total earnings; earnings per share, diluted or basic; earnings per share from continuing operations, diluted or basic; cash earnings per
share, diluted or basic; cash earnings from continuing operations, diluted or basic; earnings before interest and taxes; earnings before interest, taxes, depreciation, and amortization; earnings from operations; net asset turnover; inventory
turnover; capital expenditures; net earnings; operating earnings; cash earnings; gross or operating margin; debt; working capital; return on equity; return on net assets; return on total assets; return on investment; return on capital; return on
committed capital; return on invested capital; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; debt reduction; productivity; stock price; customer satisfaction;
employee satisfaction; and total shareholder return. The Administrator may also apply other performance factors and criteria, which need not be objective, with respect to Awards that are not intended to comply with the Code Section 162(m)
qualified performance-based compensation exception. The foregoing criteria may relate to the Company, one or more of its Subsidiaries or other Affiliates or one or more of its segments, operating units or groups, divisions, departments,
partnerships, joint ventures or minority investments, facilities, product lines or products or any combination of the foregoing. The targeted level or levels of performance with respect to such business criteria also may be established at such
levels and on such terms as the Administrator may determine, in its discretion, including but not limited to on an absolute basis, in relation to performance in a prior performance period, relative to one or more peer group companies or indices, on
a per share and/or share per capita basis, on a pre-tax or after tax basis and/or any combination thereof.
(jj)
Performance Share
means an
Award granted under Section 10, in an amount determined by the Administrator and specified in an Award Agreement, stated with reference to a specified number of shares of Common Stock, that entitles the holder to receive shares of Common Stock,
a cash payment or a combination of Common Stock and cash (as determined by the Administrator), subject to the terms of the Plan and the terms and conditions established by the Administrator.
(kk)
Performance Unit
means an Award granted under Section 10, in an amount determined by the Administrator and specified in an Award
Agreement, that entitles the holder to receive shares of Common Stock, a cash payment or a combination of Common Stock and cash (as determined by the Administrator), subject to the terms of the Plan and the terms and conditions established by the
Administrator.
(ll)
Phantom Stock Award
means an Award granted under Section 11, entitling a Participant to a payment in cash, shares of
Common Stock or a combination of cash and Common Stock (as determined by the Administrator), following the completion of the applicable vesting period and compliance with the terms of the Plan and other terms and conditions established by the
Administrator. The unit value of a Phantom Stock Award shall be based on the Fair Market Value of a share of Common Stock.
(mm)
Plan
means
the Vulcan Materials Company 2016 Omnibus Long-Term Incentive Plan, as it may be amended and/or restated.
(nn)
Related SAR
means a SAR
granted under Section 8 that is granted in relation to a particular Option and that can be exercised only upon the surrender to the Company, unexercised, of that portion of the Option to which the SAR relates.
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(oo)
Restricted Award
means a Restricted Stock Award, a Restricted Stock Unit Award and/or a Deferred
Stock Unit, as provided in Section 9.
(pp)
Restricted Stock Award
means an Award of shares of Common Stock granted to a Participant
under Section 9. Shares of Common Stock subject to a Restricted Stock Award shall cease to be restricted when, in accordance with the terms of the Plan and the terms and conditions established by the Administrator, the shares vest and become
transferable and free of substantial risks of forfeiture.
(qq)
Restricted Stock Unit
means an Award granted to a Participant pursuant to
Section 9 which is settled, if at all, (i) by the delivery of one (1) share of Common Stock for each Restricted Stock Unit, (ii) in cash in an amount equal to the Fair Market Value of one (1) share of Common Stock for each
Restricted Stock Unit, or (iii) in a combination of cash and shares equal to the Fair Market Value of one (1) share of Common Stock for each Restricted Stock Unit, as determined by the Administrator. A Restricted Stock Unit represents the
unfunded promise of the Company to deliver shares of Common Stock, cash or a combination thereof, as applicable, at the end of the applicable restriction period if and only to the extent the Award vests and ceases to be subject to forfeiture,
subject to compliance with the terms of the Plan and Award Agreement and any performance or other terms and conditions established by the Administrator.
(rr)
Retirement
shall, except as may be otherwise determined by the Administrator (taking into account any Code Section 409A considerations),
mean retirement in accordance with the applicable retirement policies and procedures of the Company; provided that, if the Participant has entered into or is a participant in any employment, change in control, consulting or other similar agreement,
plan or policy with or of the Company or an Affiliate that defines “Retirement” (or a similar term), “Retirement” shall have the meaning given such term in such agreement, plan or policy. The Administrator shall have authority to
determine if a Retirement has occurred.
(ss)
SAR
or
Stock Appreciation Right
means a stock appreciation right granted under
Section 8 entitling the Participant to receive, with respect to each share of Common Stock encompassed by the exercise of such SAR, the excess, if any, of the Fair Market Value on the date of exercise over the Exercise Price, subject to the
terms of the Plan and Award Agreement and any other terms and conditions established by the Administrator. References to “SARs” include both Related SARs and Freestanding SARs, unless the context requires otherwise.
(tt)
Securities Act
means the Securities Act of 1933, as amended.
(uu)
Subsidiary
means a “subsidiary corporation,” whether now or hereafter existing, as defined in Code Section 424(f).
(vv)
Termination Date
means the date of termination of a Participant’s employment or service for any reason, as determined by the
Administrator (taking into account any Code Section 409A considerations).
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Administration of the Plan
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(a) The Plan shall be administered by the Board or, upon its
delegation, by the Committee (or a subcommittee thereof). To the extent required under Rule 16b-3 adopted under the Exchange Act, the Committee shall be comprised solely of two or more “non-employee directors,” as such term is defined in
Rule 16b-3, or as may otherwise be permitted under Rule 16b-3. Further, to the extent required by Code Section 162(m), the Plan shall be administered by a committee comprised of two or more “outside directors” (as such term is defined
in Code Section 162(m)) or as may otherwise be permitted under Code Section 162(m). In addition, Committee members shall qualify as “independent directors” under applicable stock exchange rules if and to the extent required.
(b) Subject to the provisions of the Plan, the Administrator shall have full and final authority in its discretion to take any action with respect to the
Plan including, without limitation, the authority to (i) determine all matters relating to Awards, including selection of individuals to be granted Awards, the types of Awards, the number of shares of Common Stock, if any, subject to an Award,
and all terms, conditions, restrictions and limitations of an Award; (ii) prescribe the form or forms of Award Agreements evidencing any Awards granted under the Plan; (iii) establish, amend and rescind rules and regulations for the
administration of the Plan; (iv) correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement; and (v) construe and interpret the Plan, Awards and Award Agreements, interpret rules
and regulations for administering the Plan and make all other determinations deemed necessary or advisable for administering the Plan. In addition, subject to the restrictions contained in Section 4(c) herein, (i) the Administrator shall
have the authority to accelerate the date that any Award which was not otherwise exercisable, vested or earned shall become exercisable, vested or earned in whole or in part without any obligation to accelerate such date with respect to any other
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Award granted to any recipient; and (ii) the Administrator may in its sole discretion modify or extend the terms and conditions for exercise, vesting or earning of an Award (in each case,
taking into account any Code Section 409A considerations). The Committee’s authority to grant Awards and authorize payments under the Plan shall not in any way restrict the authority of the Company to grant compensation to Employees,
Directors or Consultants under any other compensation plan, program or arrangement of the Company or an Affiliate. In addition, the Administrator shall have the authority and discretion to establish terms and conditions of Awards (including but not
limited to the establishment of subplans) or other arrangements as the Administrator determines to be necessary or appropriate to conform to the applicable requirements or practices of jurisdictions outside of the United States. In addition to
action by meeting in accordance with Applicable Law, any action of the Administrator with respect to the Plan may be taken by a written instrument signed by all of the members of the Board or Committee, as appropriate, and any such action so taken
by written consent shall be as fully effective as if it had been taken by a majority of the members at a meeting duly held and called. All determinations of the Administrator with respect to the Plan and any Award or Award Agreement will be final
and binding on the Company and all persons having or claiming an interest in any Award granted under the Plan.
(c) Notwithstanding the provisions of
Section 4(b), Awards granted to a Participant under the Plan shall be subject to a minimum vesting period of one year; provided, however, that (i) the Administrator may provide for acceleration of vesting of all or a portion of an Award in
the event of a Participant’s death, Disability or Retirement, or (to the extent provided pursuant to Section 14 herein) upon the occurrence of a Change of Control of the Company; and (ii) the Administrator may provide for the grant of
an Award to any Participant without a minimum vesting period or may accelerate the vesting of all or a portion of an Award for any reason, but only with respect to Awards for no more than an aggregate of five percent (5%) of the total number of
shares of Common Stock authorized for issuance under the Plan pursuant to Section 5(a) herein, upon such terms and conditions as the Administrator shall determine.
(d) The Administrator may adjust or modify Performance Measures or other performance factors or terms or conditions of Awards due to extraordinary items,
transactions, events or developments, or in recognition of any other unusual or infrequent events affecting the Company or the financial statements of the Company, or in response to changes in Applicable Law, accounting principles or business
conditions, in each case as determined by the Administrator (provided that any adjustment or modification involving Covered Employees for compensation that is intended to qualify as “performance-based compensation” under Code
Section 162(m) shall be made in an objectively determinable manner and shall be subject to any applicable Code Section 162(m) restrictions). By way of example but not limitation, the Administrator may provide with respect to any Award that
any evaluation of performance shall exclude or otherwise adjust for any specified circumstance or event that occurs during a performance period, including but not limited to circumstances or events such as the following: currency fluctuations;
discontinued operations; non-cash items, such as amortization, depreciation or reserves; asset impairment; significant litigation or claim judgments or settlements; any recapitalization, restructuring, reorganization, merger, acquisition,
divestiture, consolidation, spin-off, split-up, combination, liquidation, dissolution, sale of assets, or other similar corporate transaction or event, and/or any other specific unusual or infrequent events or objectively determinable category
thereof.
(e) Notwithstanding the other provisions of Section 4, the Board may delegate to one or more officers of the Company or a special
committee consisting of one or more directors who are also officers of the Company the authority, within specified parameters, to grant Awards to eligible Participants, and to make any or all of the determinations reserved for the Administrator in
the Plan and summarized in Section 4(b) with respect to such Awards (subject to any restrictions imposed by Applicable Law and such terms and conditions as may be established by the Administrator); provided, however, that, if and to the extent
required by Section 16 of the Exchange Act or Code Section 162(m), the Participant, at the time of said grant or other determination, (i) is not deemed to be an officer or director of the Company within the meaning of Section 16
of the Exchange Act; and (ii) is not deemed to be a Covered Employee as defined under Code Section 162(m). To the extent that the Administrator has delegated authority to grant Awards pursuant to this Section 4(e) to an officer and/or
a special committee, references to the “Administrator” shall include references to such officer(s) and/or special committee, subject, however, to the requirements of the Plan, Rule 16b-3, Code Section 162(m) and other Applicable Law.
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5.
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Shares of Stock Subject to the Plan; Award Limitations
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(a)
Shares of Stock Subject to the
Plan
: Subject to adjustments as provided in this Section 5, the maximum aggregate number of shares of Common Stock that may be issued pursuant to Awards granted under the Plan shall not exceed 8,000,000 shares. Shares delivered under the
Plan shall be authorized but unissued shares, treasury shares or shares purchased on the open market or by private purchase. The Company hereby reserves sufficient authorized shares of Common Stock to meet the grant of Awards hereunder.
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(b)
Award Limitations
: Notwithstanding any provision in the Plan to the contrary, the following
limitations shall apply to Awards granted under the Plan, in each case subject to adjustments pursuant to Section 5(d):
(i) The
maximum aggregate number of shares of Common Stock that may be issued under the Plan pursuant to the grant of Incentive Options shall not exceed 8,000,000 shares of Common Stock;
(ii) In any twelve (12)-month period, no Participant may be granted Options and SARs that are not related to an Option for more than
1,200,000 shares of Common Stock (or the equivalent value thereof based on the Fair Market Value per share of the Common Stock on the date of grant of such an Award);
(iii) In any twelve (12)-month period, no Participant may be granted Awards other than Options or SARs for more than 1,200,000 shares of
Common Stock (or the equivalent value thereof based on the Fair Market Value per share of the Common Stock on the date of grant of such an Award); and
(iv) Notwithstanding the provisions of Sections 5(b)(ii) and (iii) herein, with respect to non-employee Directors, in any twelve
(12)-month period, no such Director may be granted Awards for more than 30,000 shares of Common Stock (or the equivalent value thereof based on the Fair Market Value per share of Common Stock on the date of grant of such an Award); provided,
however, that any Director cash retainer fees or other fees that are settled in shares of Common Stock shall not be subject to this limitation.
(For purposes of
Section 5(b)(ii), (iii) and (iv), an Option and Related SAR shall be treated as a single award.)
(c)
Additional Share Counting
Provisions
. The following provisions shall apply with respect to the share limitations of Section 5(a):
(i) For purposes of
determining the number of shares of Common Stock to be counted against the maximum share limit set forth in Section 5(a), each share of Common Stock subject to an Option or SAR shall be counted against the limit as one (1) share, and each
share subject to a Full Value Award shall be counted against such limit as one and eight-tenths (1.8) shares.
(ii) To the
extent that an Award is canceled, terminates, expires, is forfeited or lapses for any reason, any unissued or forfeited shares subject to the Award will again be available for issuance pursuant to Awards granted under the Plan.
(iii) Awards settled in cash shall not be counted against the share limitations stated in Section 5(a) herein.
(iv) Dividends, including dividends paid in shares, or dividend equivalents paid in cash in connection with outstanding Awards, will not
be counted towards the share limitations in Section 5(a).
(v) To the extent that the full number of shares subject to an Award
other than an Option or SAR is not issued for any reason, including by reason of failure to achieve maximum performance factors or criteria, only the number of shares issued and delivered shall be considered for purposes of determining the number of
shares remaining available for issuance pursuant to Awards granted under the Plan.
(vi) The following shares of Common Stock may not
again be made available for issuance as Awards under the Plan: (A) shares withheld from an Award or delivered by a Participant to satisfy tax withholding requirements for Awards; (B) shares not issued or delivered as a result of the net
settlement of an outstanding Award; (C) shares withheld or delivered to pay the Exercise Price related to an outstanding Award; or (D) shares repurchased on the open market with the proceeds of the Exercise Price.
(vii) Further, (A) shares issued under the Plan through the settlement, assumption or substitution of outstanding awards granted by
another entity or obligations to grant future awards as a condition of or in connection with a merger, acquisition or similar transaction involving the Company acquiring another entity shall not reduce the maximum number of shares available for
delivery under the Plan, and (B) available shares under a shareholder approved plan of an acquired company (as appropriately adjusted to reflect the transaction) may be used for Awards under the Plan and will not reduce the maximum number of
shares available under the Plan, subject, in the case of both (A) and (B) herein, to applicable stock exchange listing requirements.
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(d)
Adjustments; Right to Issue Additional Securities
: If there is any change in the outstanding
shares of Common Stock because of a merger, change in control, consolidation, recapitalization or reorganization involving the Company, or if the Board declares a stock dividend, stock split distributable in shares of Common Stock or reverse stock
split, other distribution (other than ordinary or regular cash dividends) or combination or reclassification of the Common Stock, or if there is a similar change in the capital stock structure of the Company affecting the Common Stock (excluding
conversion of convertible securities by the Company and/or the exercise of warrants by their holders), then the number and type of shares of Common Stock reserved for issuance under the Plan shall be correspondingly adjusted, and the Administrator
shall make such adjustments to Awards (such as the number and type of shares subject to an Award and the Exercise Price of an Award) or to any provisions of this Plan as the Administrator deems equitable to prevent dilution or enlargement of Awards
or as may otherwise be advisable. Nothing in the Plan, an Award or an Award Agreement shall limit the ability of the Company to issue additional securities of any type or class.
An Award may be granted only to an individual who satisfies all of the following
eligibility requirements on the date the Award is granted:
(a) The individual is either (i) an Employee, (ii) a Director or (iii) a
Consultant.
(b) With respect to the grant of Incentive Options, the individual is otherwise eligible to participate under Section 6, is an
Employee of the Company or a Parent or Subsidiary and does not own, immediately before the time that the Incentive Option is granted, stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the
Company or a Parent or Subsidiary. Notwithstanding the foregoing, an Employee who owns more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or a Parent or Subsidiary may be granted an Incentive
Option if the Exercise Price is at least one hundred ten percent (110%) of the Fair Market Value of the Common Stock, and the Option Period does not exceed five (5) years. For this purpose, an individual will be deemed to own stock which
is attributable to him or her under Code Section 424(d).
(c) With respect to the grant of substitute awards or assumption of awards in
connection with a merger, consolidation, acquisition, reorganization or similar transaction involving the Company or an Affiliate, the recipient is otherwise eligible to receive the Award and the terms of the award are consistent with the Plan and
Applicable Law.
(d) The individual, being otherwise eligible under this Section 6, is selected by the Administrator as an individual to whom an
Award shall be granted (as defined above, a “Participant”).
(a)
Grant of Options
: Subject to the terms of the Plan, the Administrator may in
its discretion grant Options to such eligible Participants in such numbers, subject to such terms and conditions, and at such times as the Administrator shall determine. Both Incentive Options and Nonqualified Options may be granted under the Plan,
as determined by the Administrator; provided, however, that Incentive Options may only be granted to Employees of the Company or a Parent or Subsidiary. To the extent that an Option is designated as an Incentive Option but does not qualify as such
under Code Section 422, the Option (or portion thereof) shall be treated as a Nonqualified Option. An Option may be granted with or without a Related SAR.
(b)
Exercise Price
: The Exercise Price per share at which an Option may be exercised shall be established by the Administrator and stated in the
Award Agreement evidencing the grant of the Option; provided, that (i) the Exercise Price of an Option shall be no less than one hundred percent (100%) of the Fair Market Value per share of the Common Stock as determined on the date the
Option is granted (or one hundred ten percent (110%) of the Fair Market Value with respect to Incentive Options granted to an Employee who owns stock possessing more than ten percent (10%) of the total combined voting power of all classes
of stock of the Company or a Parent or Subsidiary, as provided in Section 6(b)); and (ii) in no event shall the Exercise Price per share of any Option be less than the par value per share of the Common Stock. Notwithstanding the foregoing,
the Administrator may in its discretion authorize the grant of substitute or assumed options of an acquired entity with an Exercise Price not equal to one hundred percent (100%) of the Fair Market Value of the stock on the date of grant, if the
terms of such substitution or assumption otherwise comply, to the extent deemed applicable, with Code Section 409A and/or Code Section 424(a).
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(c)
Date of Grant
: An Option shall be considered to be granted on the date that the Administrator
acts to grant the Option, or on such later date as may be established by the Administrator in accordance with Applicable Law.
(d)
Option Period
and Limitations on the Right to Exercise Options:
(i) The Option Period shall be determined by the Administrator at the time the
Option is granted and shall be stated in the Award Agreement. The Option Period shall not extend more than ten (10) years from the date on which the Option is granted (or five (5) years with respect to Incentive Options granted to an
Employee who owns stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or a Parent or Subsidiary, as provided in Section 6(b)). Any Option or portion thereof not exercised
before expiration of the Option Period shall terminate. The period or periods during which, and the terms and conditions pursuant to which, an Option may vest and become exercisable shall be determined by the Administrator in its discretion, subject
to the terms of the Plan (including but not limited to the provisions of Section 4(c) herein).
(ii) An Option may be exercised
by giving written notice to the Company in form acceptable to the Administrator at such place and subject to such conditions as may be established by the Administrator or its designee. Such notice shall specify the number of shares to be purchased
pursuant to an Option and the aggregate purchase price to be paid therefor and shall be accompanied by payment of such purchase price. Unless an Award Agreement provides otherwise, such payment shall be in the form of cash or cash equivalent;
provided that, except where prohibited by the Administrator or Applicable Law (and subject to such terms and conditions as may be established by the Administrator), payment may also be made:
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(1)
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By delivery (by either actual delivery or attestation) of shares of Common Stock owned by the Participant for such time period, if any, as may be determined by the Administrator;
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(2)
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By shares of Common Stock withheld upon exercise;
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(3)
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By delivery of written notice of exercise to the Company and delivery to a broker of written notice of exercise and irrevocable instructions to promptly deliver to the Company the amount of sale or loan proceeds to pay
the Exercise Price;
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(4)
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By such other payment methods as may be approved by the Administrator and which are acceptable under Applicable Law; and/or
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(5)
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By any combination of the foregoing methods.
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Shares delivered or withheld in payment on the exercise of
an Option shall be valued at their Fair Market Value on the date of exercise, as determined by the Administrator or its designee.
(iii) The Administrator shall determine the extent, if any, to which a Participant may have the right to exercise an Option following
termination of the Participant’s employment or service with the Company. Such rights, if any, shall be subject to the sole discretion of the Administrator, shall be stated in the individual Award Agreement, need not be uniform among all Options
issued pursuant to this Section 7, and may reflect distinctions based on the reasons for termination of employment or service.
(e)
Notice of
Disposition
: If shares of Common Stock acquired upon exercise of an Incentive Option are disposed of within two (2) years following the date of grant or one (1) year following the transfer of such shares to a Participant upon exercise,
the Participant shall, promptly following such disposition, notify the Company in writing of the date and terms of such disposition and provide such other information regarding the disposition as the Administrator may reasonably require.
(f)
Limitation on Incentive Options
: In no event shall there first become exercisable by an Employee in any one calendar year Incentive Options
granted by the Company or any Parent or Subsidiary with respect to shares having an aggregate Fair Market Value (determined at the time an Incentive Option is granted) greater than $100,000; provided that, if such limit is exceeded, then the first
$100,000 of shares to become exercisable in such calendar year will be Incentive Options and the Options (or portion thereof) for shares with a value in excess of $100,000 that first became exercisable in that calendar year will be Nonqualified
Options.
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8.
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Stock Appreciation Rights
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(a)
Grant of SARs
: Subject to the terms of the Plan, the
Administrator may in its discretion grant SARs to such eligible Participants, in such numbers, upon such terms and at such times as the Administrator shall determine. SARs may be granted to the holder of an Option (a “
Related
Option
”) with respect to all or a portion of the shares of Common Stock subject to the Related Option (a “
Related SAR
”) or may be granted separately to an eligible individual (a “
Freestanding SAR
”). The
Exercise Price per share of a SAR shall be no less than one hundred percent (100%) of the Fair Market Value per share of the Common Stock on the date the SAR is granted. Notwithstanding the foregoing, the Administrator may in its discretion
authorize the grant of substitute or assumed SARs of an acquired entity with an Exercise Price per share not equal to at least one hundred percent (100%) of the Fair Market Value of the stock on the date of grant, if the terms of such
substitution or assumption otherwise comply, to the extent deemed applicable, with Code Section 409A and/or Code Section 424(a). A SAR shall be considered to be granted on the date that the Administrator acts to grant the SAR, or on such
other date as may be established by the Administrator in accordance with Applicable Law.
(b)
Related SARs
: A Related SAR may be granted
either concurrently with the grant of the Related Option or (if the Related Option is a Nonqualified Option) at any time thereafter prior to the complete exercise, termination, expiration or cancellation of such Related Option. The Exercise Price of
a Related SAR shall be equal to the Exercise Price of the Related Option. Related SARs shall be exercisable only at the time and to the extent that the Related Option is exercisable (and may be subject to such additional limitations on
exercisability as the Administrator may provide in an Award Agreement), and in no event after the complete termination or full exercise of the Related Option. Notwithstanding the foregoing, a Related SAR that is related to an Incentive Option may be
exercised only to the extent that the Related Option is exercisable and only when the Fair Market Value exceeds the Exercise Price of the Related Option. Upon the exercise of a Related SAR granted in connection with a Related Option, the Option
shall be canceled to the extent of the number of shares as to which the SAR is exercised, and upon the exercise of a Related Option, the Related SAR shall be canceled to the extent of the number of shares as to which the Related Option is exercised
or surrendered.
(c)
Freestanding SARs
: A SAR may be granted without relationship to an Option (as defined above, a “
Freestanding
SAR
”) and, in such case, will be exercisable upon such terms and subject to such conditions as may be determined by the Administrator, subject to the terms of the Plan.
(d)
Exercise of SARs
:
(i)
Subject to the terms of the Plan (including but not limited to Section 4(c) herein), SARs shall be vested and exercisable in whole or in part upon such terms and conditions as may be established by the Administrator. The period during which a
SAR may be exercisable shall not exceed ten (10) years from the date of grant or, in the case of Related SARs, such shorter Option Period as may apply to the Related Option. Any SAR or portion thereof not exercised before expiration of the
period established by the Administrator shall terminate.
(ii) SARs may be exercised by giving written notice to the Company in form
acceptable to the Administrator at such place and subject to such terms and conditions as may be established by the Administrator or its designee. Unless the Administrator determines otherwise, the date of exercise of a SAR shall mean the date on
which the Company shall have received proper notice from the Participant of the exercise of such SAR.
(iii) The Administrator shall
determine the extent, if any, to which a Participant may have the right to exercise a SAR following termination of the Participant’s employment or service with the Company. Such rights, if any, shall be determined in the sole discretion of the
Administrator, shall be stated in the individual Award Agreement, need not be uniform among all SARs issued pursuant to this Section 8, and may reflect distinctions based on the reasons for termination of employment or service.
(e)
Payment Upon Exercise
: Subject to the terms of the Plan, upon the exercise of a SAR, a Participant shall be entitled to receive payment from
the Company in an amount determined by multiplying (i) the excess, if any, of the Fair Market Value of a share of Common Stock on the date of exercise of the SAR over the Exercise Price of the SAR (with Fair Market Value on the exercise date
determined, for this purpose (unless the Administrator determines otherwise), based on the closing price of a share of the Common Stock on the last trading day immediately preceding the date of exercise), by (ii) the number of shares of Common
Stock with respect to which the SAR is being exercised. The consideration payable upon exercise of a SAR shall be paid in cash, shares of Common Stock (valued at Fair Market Value on the date of exercise of the SAR) or a combination of cash and
shares of Common Stock, as determined by the Administrator.
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(a)
Grant of Restricted Awards
: Subject to the terms of the Plan, the
Administrator may in its discretion grant Restricted Awards to such Participants, for such numbers of shares of Common Stock, upon such terms and at such times as the Administrator shall determine. Such Restricted Awards may be in the form of
Restricted Stock Awards, Restricted Stock Units and/or Deferred Stock Units that are subject to certain conditions, which conditions must be met in order for the Restricted Award to vest and be earned (in whole or in part) and no longer subject to
forfeiture. Restricted Stock Awards shall be payable in shares of Common Stock. Restricted Stock Units and Deferred Stock Units shall be payable in cash or shares of Common Stock, or partly in cash and partly in shares of Common Stock, in accordance
with the terms of the Plan and the discretion of the Administrator. Subject to the provisions of Section 4(c) herein, the Administrator shall determine the nature, length and starting date of the period, if any, during which a Restricted Award
may vest and be earned (the “
Restriction Period
”), and shall determine the conditions which must be met in order for a Restricted Award to be granted, vested, earned and/or distributable (in whole or in part), which conditions may
include, but are not limited to, payment of a stipulated purchase price, attainment of performance objectives, continued service or employment for a certain period of time, a combination of attainment of performance objectives and continued service,
Retirement, Disability, death or other termination of employment or service or any combination of such conditions. In the case of Restricted Awards based in whole or in part upon performance factors or criteria, the Administrator shall determine the
Performance Measures applicable to such Restricted Awards (subject to Section 3(ii)). The terms of Restricted Awards shall be intended to comply with or be exempt from Code Section 409A if and to the extent applicable.
(b)
Vesting of Restricted Awards
: Subject to the terms of the Plan, the Administrator shall have sole authority to determine whether and to what
degree Restricted Awards have vested and been earned and are payable and to establish and interpret the terms and conditions of Restricted Awards.
(c)
Termination of Employment or Service; Forfeiture
: Unless the Administrator determines otherwise, if the employment or service of a Participant
shall be terminated for any reason (whether by the Company or the Participant and whether voluntary or involuntary) and all or any part of a Restricted Award has not vested or been earned pursuant to the terms of the Plan and related Award
Agreement, such Award, to the extent not then vested or earned, shall be forfeited immediately upon such termination and the Participant shall have no further rights with respect thereto.
(d)
Share Certificates; Escrow
: Unless the Administrator determines otherwise, a certificate or certificates representing the shares of Common
Stock subject to a Restricted Stock Award shall be issued in the name of the Participant (or, in the case of uncertificated shares, other written evidence of ownership in accordance with Applicable Law shall be provided) after the Award has been
granted. Notwithstanding the foregoing, the Administrator may require that (i) a Participant deliver the certificate(s) (or other instruments) for such shares to the Administrator or its designee to be held in escrow until the Restricted Stock
Award vests and is no longer subject to a substantial risk of forfeiture (in which case the shares will be promptly released to the Participant) or is forfeited (in which case the shares shall be returned to the Company); and/or (ii) a
Participant deliver to the Company a stock power, endorsed in blank (or similar instrument), relating to the shares subject to the Restricted Stock Award which are subject to forfeiture. Unless the Administrator determines otherwise, a certificate
or certificate representing shares of Common Stock issuable pursuant to a Restricted Stock Unit or a Deferred Stock Unit shall be issued in the name of the Participant (or, in the case of uncertificated shares, other written evidence of ownership in
accordance with Applicable Law shall be provided) promptly after the Award (or portion thereof) has vested and been earned and is distributable.
(e)
Deferred Stock Units
: A Deferred Stock Unit represents the unfunded promise of the Company to deliver shares of Common Stock, cash or a combination thereof, as applicable, if and to the extent that the Award has vested and is eligible for
distribution (including, by way of example only, distribution upon termination of employment or service or upon a specified date or dates), subject to compliance with the terms of the Plan and Award Agreement and any other terms and conditions
established by the Administrator. A Deferred Stock Unit shall be settled, if at all, (i) by the delivery of one (1) share of Common Stock for each Deferred Stock Unit, (ii) in cash in an amount equal to the Fair Market Value of one
(1) share of Common Stock for each Deferred Stock Unit, or (iii) in a combination of cash and shares equal to the Fair Market Value of one (1) share of Common Stock for each Deferred Stock Unit, as determined by the Administrator.
(a)
Grant of Performance Awards
: Subject to the terms of the Plan, the
Administrator may in its discretion grant Performance Awards to such eligible Participants upon such terms and conditions and at such times as the Administrator shall determine. Performance Awards may be in the form of Performance Shares and/or
Performance Units. Subject to Section 5(b), the Administrator shall have discretion to determine the number of Performance Units and/or Performance Shares
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granted to any Participant. Subject to the provisions of Section 4(c) herein, the Administrator shall determine the nature, length and starting date of the period during which a Performance
Award may be earned (the “
Performance Period
”), and shall determine the conditions which must be met in order for a Performance Award to be granted or to vest or be earned (in whole or in part), which conditions may include but are
not limited to payment of a stipulated purchase price, attainment of performance objectives, continued service or employment for a certain period of time, a combination of such conditions or other conditions. Subject to Section 3(ii), the
Administrator shall determine the Performance Measures applicable to Performance Awards. The terms of Performance Awards shall be intended to comply with or be exempt from Code Section 409A if and to the extent applicable.
(b)
Earning of Performance Awards
: Subject to the terms of the Plan, the Administrator shall have sole authority to determine whether and to what
degree Performance Awards have been earned and are payable and to interpret the terms and conditions of Performance Awards.
(c)
Form of
Payment
: Payment of the amount to which a Participant shall be entitled upon earning a Performance Award shall be made in cash, shares of Common Stock or a combination of cash and shares of Common Stock, as determined by the Administrator in its
sole discretion. Payment may be made in a lump sum or upon such terms as may be established by the Administrator.
(d)
Termination of Employment
or Service; Forfeiture
: Unless the Administrator determines otherwise, if the employment or service of a Participant shall terminate for any reason (whether by the Company or the Participant and whether voluntary or involuntary) and the
Participant has not earned all or part of a Performance Award pursuant to the terms of the Plan and related Award Agreement, such Award, to the extent not then earned, shall be forfeited immediately upon such termination and the Participant shall
have no further rights with respect thereto.
(a)
Grant of Phantom Stock Awards
:
Subject to the terms of the
Plan (including but not limited to Section 4(c) herein), the Administrator may in its discretion grant Phantom Stock Awards to such eligible Participants, in such numbers, upon such terms and at such times as the Administrator shall determine.
A Phantom Stock Award is an Award to a Participant of a number of hypothetical share units with respect to shares of Common Stock, with a value based on the Fair Market Value of a share of Common Stock. The terms of Phantom Stock Awards shall be
intended to comply with or be exempt from Code Section 409A if and to the extent applicable.
(b)
Vesting of Phantom Stock Awards
:
Subject to the terms of the Plan, the Administrator shall have sole authority to determine whether and to what degree Phantom Stock Awards have vested and are payable and to interpret the terms and conditions of Phantom Stock Awards.
(c)
Termination of Employment or Service; Forfeiture
:
Unless the Administrator determines otherwise, if the employment or service of a
Participant shall be terminated for any reason (whether by the Company or the Participant and whether voluntary or involuntary) and all or any part of a Phantom Stock Award has not vested and become payable pursuant to the terms of the Plan and
related Award Agreement, such Award, to the extent not then vested and earned, shall be forfeited immediately upon such termination and the Participant shall have no further rights with respect thereto.
(d)
Payment of Phantom Stock Awards
:
Upon vesting of all or a part of a Phantom Stock Award and satisfaction of such other terms and
conditions as may be established by the Administrator, the Participant shall be entitled to a payment of an amount equal to the Fair Market Value of one (1) share of Common Stock with respect to each such Phantom Stock unit which has vested and
is payable. Payment may be made, in the discretion of the Administrator, in cash or in shares of Common Stock valued at their Fair Market Value on the applicable vesting date or dates (or other date or dates determined by the Administrator), or in a
combination thereof. Payment may be made in a lump sum or upon such terms as may be established by the Administrator.
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Other Stock-Based Awards
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The Administrator shall have the authority to grant Other Stock-Based
Awards to one or more eligible Participants. Such Other Stock-Based Awards may be valued in whole or in part by reference to, or otherwise based on or related to, shares of Common Stock or Awards for shares of Common Stock, including but not limited
to Other Stock-Based Awards granted in lieu of bonus, salary or other compensation, Other Stock-Based Awards granted with vesting or performance conditions and/or Other Stock-Based Awards granted without being subject to vesting or performance
conditions (subject to the terms of
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Section 4(c) herein). Subject to the provisions of the Plan, the Administrator shall determine the number of shares of Common Stock to be awarded to a Participant under (or otherwise related
to) such Other Stock-Based Awards; whether such Other Stock-Based Awards shall be settled in cash, shares of Common Stock, other securities or any other form of property as the Administrator may determine, or a combination of such forms of
consideration; and the other terms and conditions of such Awards.
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Dividends and Dividend Equivalents
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The Administrator may, in its sole discretion, provide that
Awards other than Options and SARs earn dividends or dividend equivalents; provided, however, that dividends and dividend equivalents, if any, on unearned or unvested performance-based Awards shall not be paid (even if accrued) unless and until the
underlying Award (or portion thereof) has vested and/or been earned. Such dividends or dividend equivalents may be paid currently or may be credited to a Participant’s account. Any crediting of dividends or dividend equivalents may be subject
to such additional restrictions and conditions as the Administrator may establish, including reinvestment in additional shares of Common Stock or share equivalents. Notwithstanding the other provisions herein, any dividends or dividend equivalent
rights related to an Award shall be structured in a manner so as to avoid causing the Award and related dividends or dividend equivalent rights to be subject to Code Section 409A or shall otherwise be structured so that the Award and dividends
or dividend equivalent rights are in compliance with Code Section 409A.
Notwithstanding any other provision in the Plan to the contrary, in the event
of a Change of Control, vesting of Awards shall not accelerate except as provided in Section 14(a) or Section 14(b) below (except to the extent, if any, as may be otherwise required under Code Section 409A):
(a) To the extent that the successor or surviving company in the Change of Control event does not assume or substitute for an Award (or in which the
Company is the ultimate parent corporation and does not continue the Award) on substantially similar terms or with substantially equivalent economic benefits (as determined by the Administrator prior to the Change of Control) as Awards outstanding
under the Plan immediately prior to the Change of Control event, (i) all outstanding Options and SARs shall become fully vested and exercisable, whether or not then otherwise vested and exercisable; and (ii) any restrictions, including but
not limited to the Restriction Period, Performance Period and/or performance factors or criteria applicable to any outstanding Awards other than Options or SARs shall be deemed to have been met, and such Awards shall become fully vested, earned and
payable to the fullest extent of the original grant of the applicable Award (or, in the case of performance-based Awards the earning of which is based on attaining a target level of performance, such Awards shall be deemed earned at the greater of
actual performance or target performance). For the purposes of Section 14(a) and Section 14(b), an Award shall not be considered to have been assumed, substituted or continued if the class of equity security underlying the Award after the
Change of Control is not listed on the NYSE or the NASDAQ Stock Market LLC.
(b) Further, in the event that an Award is substituted, assumed or
continued as provided in Section 14(a) herein, the Award will nonetheless become vested (and, in the case of Options and SARs, exercisable) in full and any restrictions, including but not limited to the Restriction Period, Performance Period
and/or performance factors or criteria applicable to any outstanding Award shall be deemed to have been met, and such Awards shall become fully vested, earned and payable to the fullest extent of the original award (or, in the case of
performance-based Awards the earning of which is based on attaining a target level of performance, such Awards shall be deemed earned at the greater of actual performance or target performance) if the employment or service of the Participant is
terminated within six months before (in which case vesting shall not occur until the effective date of the Change of Control) or two years (or such other period after a Change of Control as may be stated in a Participant’s employment, change in
control, consulting or other similar agreement, plan or policy, if applicable) after the effective date of a Change of Control if such termination of employment or service (i) is by the Company not for Cause or (ii) is by the Participant
for Good Reason. Notwithstanding the preceding sentence, however, the following provisions shall apply: (X) in the event that a performance-based Award is substituted, assumed or continued as provided in Section 14(a) herein, the
Administrator (as constituted prior to the Change of Control) shall have the discretion to determine that such performance-based Award shall be deemed earned at the greater of actual performance or target performance as of the time of the Change of
Control and, following the Change of Control, the Award shall convert to a service-based Award for the remainder of the Award’s performance period, subject to accelerated vesting in the event of the Participant’s termination by the Company
not for Cause or for Good Reason as provided in the preceding sentence; and (Y) in the event that an Award is substituted, assumed or continued as provided in Section 14(a) herein, the Administrator (as constituted prior to the Change of
Control) may determine that Participants shall be entitled to a value restoration payment (the “
Value Restoration Payment
”) equal to an amount no greater than the difference between the Fair Market Value of the surviving
entity’s common stock (or equivalent
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equity security) on the date of the Change of Control and, if less, the Fair Market Value of the surviving entity’s common stock (or equivalent security) on the date of vesting (in each
case, less, if applicable, any Exercise Price, as such Exercise Price may be adjusted pursuant to Section 14(a) herein). For clarification, for the purposes of this Section 14, the “Company” shall include any successor to the
Company.
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Nontransferability of Awards
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Incentive Options shall not be transferable (including by sale,
assignment, pledge or hypothecation) other than transfers by will or the laws of intestate succession or, in the Administrator’s discretion, such transfers as may otherwise be permitted in accordance with Treasury Regulation
Section 1.421-1(b)(2) or Treasury Regulation Section 1.421-2(c). Awards other than Incentive Options shall not be transferable (including by sale, assignment, pledge or hypothecation) other than by will or the laws of intestate succession,
except for transfers if and to the extent permitted by the Administrator in a manner consistent with the registration provisions of the Securities Act. Except as may be permitted by the preceding, an Option or SAR shall be exercisable during the
Participant’s lifetime only by him or her or by his or her guardian or legal representative. The designation of a beneficiary in accordance with the Plan does not constitute a transfer.
The Company shall withhold all required local, state, federal, foreign and other
taxes and any other amount required to be withheld by any governmental authority or law from any amount payable in cash with respect to an Award. Prior to the delivery or transfer of any certificate for shares or any other benefit conferred under
the Plan, the Company shall require any Participant or other person to pay to the Company in cash the amount of any tax or other amount required by any governmental authority to be withheld and paid over by the Company to such authority for the
account of such recipient. Notwithstanding the foregoing, the Administrator may in its discretion establish procedures to require (or permit) a recipient to satisfy such obligations in whole or in part, and any local, state, federal, foreign or
other income tax obligations relating to such an Award, by delivery to the Company of shares of Common Stock held by the Participant (which are fully vested and not subject to any pledge or other security interest) or by the Company withholding
shares of Common Stock from the shares to which the recipient is otherwise entitled. The number of shares to be withheld or delivered shall have a Fair Market Value as of the date that the amount of tax to be withheld is determined as nearly equal
as possible to (but not exceeding) the amount of such obligations being satisfied. Such withholding obligations shall be subject to such terms and procedures as may be established by the Administrator. The Participant shall remain responsible at all
times for paying any federal, state, foreign and/or local income or employment tax due with respect to any Award, and the Company shall not be liable for any interest or penalty that a Participant incurs by failing to make timely payments of tax or
otherwise.
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Amendment and Termination of the Plan and Awards
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(a)
Amendment and Termination of Plan;
Prohibition on Repricing
:
The Plan may be amended, altered, suspended and/or terminated at any time by the Board; provided, that (i) approval of an amendment to the Plan by the shareholders of the Company shall be required to the
extent, if any, that shareholder approval of such amendment is required by Applicable Law; and (ii) except for adjustments made pursuant to Section 5(d), the Company may not, without obtaining shareholder approval, (A) amend the terms
of outstanding Options or SARs to reduce the Exercise Price of such outstanding Options or SARs; (B) exchange outstanding Options or SARs for cash, for Options or SARs with an Exercise Price that is less than the Exercise Price of the original
Option or SAR, or for other equity awards at a time when the original Option or SAR has an Exercise Price above the Fair Market Value of the Common Stock; or (C) take other action with respect to Options or SARs that would be treated as a
repricing under the rules of the principal stock exchange on which shares of the Common Stock are listed.
(b)
Amendment and Termination of
Awards
:
The Administrator may (subject to Section 17(a)(ii) herein) amend, alter, suspend and/or terminate any Award granted under the Plan, prospectively or retroactively, but (except as otherwise provided in Section 17(c))
such amendment, alteration, suspension or termination of an Award shall not, without the written consent of a Participant with respect to an outstanding Award, materially adversely affect the rights of the Participant with respect to the Award.
(c)
Amendments to Comply with Applicable Law
:
Notwithstanding Section 17(a) and Section 17(b) herein, the following provisions
shall apply:
(i) The Administrator shall have unilateral authority to amend the Plan and any Award (without Participant consent) to
the extent necessary to comply with Applicable Law or changes to Applicable Law (including but in no way limited to Code Section 409A, Code Section 422 and federal securities laws).
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(ii) The Administrator shall have unilateral authority to make adjustments to the terms and
conditions of Awards in recognition of unusual or nonrecurring events affecting the Company or any Affiliate, or the financial statements of the Company or any Affiliate, or of changes in Applicable Law, or accounting principles, if the
Administrator determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or necessary or appropriate to comply with applicable
accounting principles or Applicable Law.
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Restrictions on Awards and Shares; Compliance with Applicable Law
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(a)
General:
As a
condition to the issuance and delivery of Common Stock hereunder, or the grant of any benefit pursuant to the Plan, the Company may require a Participant or other person at any time and from time to time to become a party to an Award Agreement,
other agreement(s) restricting the transfer, purchase, repurchase and/or voting of shares of Common Stock of the Company, and any employment, consulting, non-competition, confidentiality, non-solicitation, non-disparagement or other agreements or
provisions imposing such restrictions as may be required by the Company. In addition, without in any way limiting the effect of the foregoing, each Participant or other holder of shares issued under the Plan shall be permitted to transfer such
shares only if such transfer is in accordance with the Plan, the Award Agreement, any other applicable agreements and Applicable Law. The acquisition of shares of Common Stock under the Plan by a Participant or any other holder of shares shall be
subject to, and conditioned upon, the agreement of the Participant or other holder of such shares to the restrictions described in the Plan, the Award Agreement and any other applicable agreements and Applicable Law.
(b)
Compliance with Applicable Laws, Rules and Regulations
:
The Company may impose such restrictions on Awards, shares of Common Stock and
any other benefits underlying Awards hereunder as it may deem advisable, including without limitation restrictions under the federal securities laws, the requirements of any stock exchange or similar organization and any blue sky, state or foreign
securities or other laws applicable to such securities. Notwithstanding any other Plan provision to the contrary, the Company shall not be obligated to issue, deliver or transfer shares of Common Stock under the Plan, make any other distribution of
benefits under the Plan, or take any other action, unless such delivery, distribution or action is in compliance with Applicable Law (including but not limited to the requirements of the Securities Act). The Company will be under no obligation to
register shares of Common Stock or other securities with the Securities and Exchange Commission or to effect compliance with the exemption, registration, qualification or listing requirements of any state securities laws, stock exchange or similar
organization, and the Company will have no liability for any inability or failure to do so. The Company may cause a restrictive legend or legends to be placed on any certificate issued pursuant to an Award hereunder in such form as may be prescribed
from time to time by Applicable Law or as may be advised by legal counsel.
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No Right or Obligation of Continued Employment or Service or to Awards; Compliance with the Plan
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Neither the Plan, an Award, an Award Agreement nor any other action related to the Plan shall confer upon a Participant any right to continue in the
employ or service of the Company or an Affiliate as an Employee, Director or Consultant, or interfere in any way with the right of the Company or an Affiliate to terminate the Participant’s employment or service at any time. Except as otherwise
provided in the Plan, an Award Agreement or as may be determined by the Administrator, all rights of a Participant with respect to an Award shall terminate upon the termination of the Participant’s employment or service. In addition, no person
shall have any right to be granted an Award, and the Company shall have no obligation to treat Participants or Awards uniformly. By participating in the Plan, each Participant shall be deemed to have accepted all of the conditions of the Plan and
the terms and conditions of any rules and regulations adopted by the Administrator and shall be fully bound thereby. Any Award granted hereunder is not intended to be compensation of a continuing or recurring nature, or part of a Participant’s
normal or expected compensation, and in no way represents any portion of a Participant’s salary, compensation or other remuneration for purposes of pension benefits, severance, redundancy, resignation or any other purpose.
(a)
Shareholder Rights
:
Except as otherwise determined by the
Administrator or provided in the Plan, a Participant and his or her legal representative, legatees or distributees shall not be deemed to be the holder of any shares of Common Stock subject to an Award and shall not have any rights of a shareholder
unless and until certificates for such shares have been issued and delivered to him or her or them under the Plan. A certificate or certificates for shares of Common Stock acquired upon exercise of an Option or SAR shall be issued in the name of the
Participant or his or her beneficiary and distributed to the Participant or his or her beneficiary (or, in the case of uncertificated shares, other written notice of ownership in accordance with Applicable Law shall be provided) as soon as
practicable following receipt of notice of exercise and, with respect
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to Options, payment of the Exercise Price (except as may otherwise be determined by the Company in the event of payment of the Exercise Price pursuant to Section 7(d)(ii)(C)). Except as
otherwise provided in Section 9(d) regarding Restricted Stock Awards or otherwise determined by the Administrator, a certificate for any shares of Common Stock issuable pursuant to a Restricted Award, Performance Award, Phantom Stock Award or
Other Stock-Based Award shall be issued in the name of the Participant or his or her beneficiary and distributed to the Participant or his or her beneficiary (or, in the case of uncertificated shares, other written notice of ownership in accordance
with Applicable Law shall be provided) after the Award (or portion thereof) has vested and been earned and is distributable.
(b)
Section 16(b) Compliance
:
To the extent that any Participants in the Plan are subject to Section 16(b) of the Exchange Act, it is the general intention of the Company that transactions under the Plan shall comply with Rule
16b-3 under the Exchange Act and that the Plan shall be construed in favor of such Plan transactions meeting the requirements of Rule 16b-3. Notwithstanding anything in the Plan to the contrary, the Administrator, in its sole and absolute
discretion, may bifurcate the Plan so as to restrict, limit or condition the use of any provision of the Plan to Participants who are officers or directors subject to Section 16 of the Exchange Act without so restricting, limiting or
conditioning the Plan with respect to other Participants.
(c)
Code Section 162(m) Performance-Based Compensation
.
To the extent
to which Code Section 162(m) is applicable, the Company intends that compensation paid under the Plan to Covered Employees will, to the extent practicable, constitute “qualified performance-based compensation” within the meaning of
Code Section 162(m), unless otherwise determined by the Administrator. Accordingly, Awards granted to Covered Employees which are intended to qualify for the performance-based exception under Code Section 162(m) shall be deemed to include
any such additional terms, conditions, limitations and provisions as are necessary to comply with the performance-based compensation exemption of Code Section 162(m), unless the Administrator, in its discretion, determines otherwise. To the
extent that Code Section 162(m) is applicable, the Administrator shall, within the time periods and in the manner prescribed by Code Section 162(m), select eligible Participants and define in an objective fashion the manner of calculating
the Performance Measures it selects to use for Covered Employees during any specific performance period.
(d)
Unfunded Plan; No Effect on Other
Plans
:
(i) The Plan shall be unfunded, and the Company shall not be required to create a trust or segregate any assets
that may at any time be represented by Awards under the Plan. The Plan shall not establish any fiduciary relationship between the Company and any Participant or other person. Neither a Participant nor any other person shall, by reason of the Plan,
acquire any right in or title to any assets, funds or property of the Company or any Affiliate, including, without limitation, any specific funds, assets or other property which the Company or any Affiliate, in their discretion, may set aside in
anticipation of a liability under the Plan. A Participant shall have only a contractual right to shares of Common Stock or other amounts, if any, payable under the Plan, unsecured by any assets of the Company or any Affiliate. Nothing contained in
the Plan shall constitute a guarantee that the assets of such entities shall be sufficient to pay any benefits to any person.
(ii)
The amount of any compensation deemed to be received by a Participant pursuant to an Award shall not constitute compensation with respect to which any other employee benefits of such Participant are determined, including, without limitation,
benefits under any bonus, pension, profit sharing, life insurance or salary continuation plan, except as otherwise specifically provided by the terms of such plan or as may be determined by the Administrator.
(iii) Except as otherwise provided in the Plan, the adoption of the Plan shall not affect any other stock incentive or other compensation
plans in effect for the Company or any Affiliate, nor shall the Plan preclude the Company from establishing any other forms of stock incentive or other compensation for employees or service providers of the Company or any Affiliate.
(e)
Governing Law
:
The Plan and Awards shall be governed by and construed in accordance with the laws of the State of New Jersey, without
regard to the conflict of laws provisions of any state, and in accordance with applicable federal laws of the United States.
(f)
Beneficiary
Designation
:
The Administrator may, in its discretion, permit a Participant to designate in writing a person or persons as beneficiary, which beneficiary shall be entitled to receive settlement of Awards (if any) to which the Participant
is otherwise entitled in the event of death. In the absence of such designation by a Participant, and in the event of the Participant’s death, the estate of the Participant shall be treated as beneficiary for purposes of the Plan, unless the
Administrator determines otherwise. The Administrator shall have discretion to approve and interpret the form or forms of
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such beneficiary designation. A beneficiary, legal guardian, legal representative or other person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and
any Award Agreement applicable to the Participant, except to the extent that the Plan and/or Award Agreement provide otherwise, and to any additional restrictions deemed necessary or appropriate by the Administrator.
(g)
Gender and Number
:
Except where otherwise indicated by the context, words in any gender shall include any other gender, words in the
singular shall include the plural and words in the plural shall include the singular.
(h)
Severability
:
If any provision of the Plan
or an Award Agreement shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of the Plan or the Award Agreement (which shall be construed or deemed amended to conform to Applicable Law),
and the Plan or Award Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.
(i)
Rules of
Construction
:
Headings are given to the sections of the Plan solely as a convenience to facilitate reference. The reference to any statute, regulation or other provision of law shall (unless the Administrator determines otherwise) be
construed to refer to any amendment to or successor of such provision of law.
(j)
Successors and Assigns
:
The Plan shall be binding
upon the Company, its successors and assigns, and Participants, their executors, administrators and permitted transferees and beneficiaries.
(k)
Award Agreement
:
The grant of any Award under the Plan shall be evidenced by an Award Agreement between the Company and the Participant. Such Award Agreement may state terms, conditions and restrictions applicable to the Award and may
state such other terms, conditions and restrictions, including but not limited to terms, conditions and restrictions applicable to shares of Common Stock or other benefits subject to an Award, as may be established by the Administrator.
(l)
Right of Offset
:
Notwithstanding any other provision of the Plan or an Award Agreement, the Company may at any time (subject to any
Code Section 409A considerations) reduce the amount of any payment or benefit otherwise payable to or on behalf of a Participant by the amount of any obligation of the Participant to or on behalf of the Company or an Affiliate that is or
becomes due and payable.
(m)
Uncertificated Shares
:
Notwithstanding anything in the Plan to the contrary, to the extent the Plan
provides for the issuance of stock certificates to reflect the issuance of shares of Common Stock, the issuance may, in the Company’s discretion, be effected on a non-certificated basis, to the extent not prohibited by the Company’s
certificate of incorporation or bylaws or by Applicable Law.
(n)
Income and Other Taxes
:
Participants are solely responsible and
liable for the satisfaction of all taxes and penalties that may arise in connection with Awards (including but not limited to any taxes arising under Code Section 409A), and the Company shall not have any obligation to indemnify or otherwise
hold any Participant harmless from any or all of such taxes. The Company shall have no responsibility to take or refrain from taking any actions in order to achieve a certain tax result for a Participant or any other person.
(o)
Effect of Certain Changes in Status
:
Notwithstanding the other terms of the Plan or an Award Agreement, the Administrator has sole
discretion to determine (taking into account any Code Section 409A considerations), at the time of grant of an Award or at any time thereafter, the effect, if any, on Awards (including but not limited to modifying the vesting, exercisability
and/or earning of Awards) granted to a Participant if the Participant’s status as an Employee, Director or Consultant changes, including but not limited to a change from full-time to part-time, or vice versa, or if other similar changes in the
nature or scope of the Participant’s employment or service occur.
(p)
Shareholder Approval
:
The Plan is subject to approval by
the shareholders of the Company, which approval must occur, if at all, within twelve (12) months of the Effective Date. Awards granted prior to such shareholder approval shall be conditioned upon and shall be effective only upon approval of the
Plan by such shareholders on or before such date.
(q)
Deferrals
:
Subject to the provisions of this Section 20(q) and
Section 21, the Administrator may permit or require a Participant to defer such Participant’s receipt of the payment of cash or the delivery of shares of Common Stock that would otherwise be payable with respect to an Award. Any such
deferral shall be subject to such terms and conditions as may be established by the Administrator and to any applicable Code Section 409A requirements.
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(r)
Fractional Shares
:
Except as otherwise provided in an Award Agreement or determined by the
Administrator, (i) the total number of shares issuable pursuant to the exercise, vesting or earning of an Award shall be rounded down to the nearest whole share, and (ii) no fractional shares shall be issued. The Administrator may, in its
discretion, determine that a fractional share shall be settled in cash.
(s)
Compliance with Recoupment, Ownership and Other Policies or
Agreements
:
Notwithstanding anything in the Plan or an Award Agreement to the contrary, the Administrator may, at any time (during or following termination of employment or service for any reason), determine that a Participant’s
rights, payments and/or benefits with respect to an Award (including but not limited to any shares issued or issuable and/or cash paid or payable with respect to an Award) shall be subject to reduction, cancellation, forfeiture or recoupment upon
the occurrence of certain specified events, in addition to any other conditions applicable to an Award. Such events may include, but shall not be limited to, termination of employment for Cause, violation of policies of the Company or an Affiliate,
breach of non-solicitation, non-competition, confidentiality, non-disparagement or other covenants, other conduct by the Participant that is determined by the Administrator to be detrimental to the business or reputation of the Company or any
Affiliate, and/or other circumstances where such reduction, cancellation, forfeiture or recoupment is required by Applicable Law. In addition, without limiting the effect of the foregoing, as a condition to the grant of an Award or receipt or
retention of shares of Common Stock, cash or any other benefit under the Plan, (i) the Administrator may, at any time, require that a Participant comply with any compensation recovery (or “clawback”), stock ownership, stock retention
or other policies or guidelines adopted by the Company or an Affiliate, each as in effect from time to time and to the extent applicable to the Participant, and (ii) each Participant shall be subject to such compensation recovery, recoupment,
forfeiture or other similar provisions as may apply under Applicable Law.
(t)
Attestation
:
Wherever in the Plan or any Award Agreement
a Participant is permitted to pay the Exercise Price of an Award or taxes relating to the exercise, vesting or earning of an Award by delivering shares of Common Stock, the Participant may, unless the Administrator determines otherwise and subject
to procedures satisfactory to the Administrator, satisfy such delivery requirement by presenting proof of beneficial ownership of such shares, in which case the Company shall treat the Award as exercised, vested or earned without further payment
and/or shall withhold such number of shares from the shares acquired by the exercise, vesting or earning of the Award, as appropriate.
(u)
Plan
Controls
:
Unless the Administrator determines otherwise, (i) in the event of a conflict between any term or provision contained in the Plan and an express term contained in any Award Agreement, the applicable terms and provisions of
the Plan will govern and prevail, and (ii) the terms of an Award Agreement shall not be deemed to be in conflict or inconsistent with the Plan merely because they impose greater or additional restrictions, obligations or duties, or if the Award
Agreement provides that such Award Agreement terms apply notwithstanding the provisions to the contrary in the Plan.
(v)
Indemnification
:
No member of the Board or Committee, as applicable, shall be liable while acting as Administrator for any action or determination made in good faith with respect to the Plan, an Award or an Award Agreement. In addition
to such other rights of indemnification as members of the Board or the Committee or officers or employees of the Company or an Affiliate to whom authority to act for the Board or the Committee is delegated may have under the Company’s
certificate of incorporation, bylaws and/or other instrument and/or pursuant to Applicable Law, such individuals shall be indemnified by the Company against all reasonable expenses, including attorneys’ fees, incurred in connection with the
defense of any action, suit or proceeding, or in connection with any appeal thereof, to which any such individual may be a party by reason of any action taken or failure to act under or in connection with the Plan or any right granted hereunder and
against all amounts paid by such individual in a settlement thereof that is approved by the Company’s legal counsel or paid in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall
be formally determined that such person is liable for gross negligence, bad faith or intentional misconduct; provided, however, that any such individual shall give the Company an opportunity, at its own expense, to defend the same before such
individual undertakes to defend such action, suit or proceeding.
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21.
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Compliance with Code Section 409A
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Notwithstanding any other provision in the Plan or an
Award Agreement to the contrary, if and to the extent that Code Section 409A is deemed to apply to the Plan or any Award, it is the general intention of the Company that the Plan and all such Awards shall, to the extent practicable, comply
with, or be exempt from, Code Section 409A, and the Plan and any such Award Agreement shall, to the extent practicable, be construed in accordance therewith. Deferrals of shares or any other benefit issuable pursuant to an Award otherwise
exempt from Code Section 409A in a manner that would cause Code Section 409A to apply shall not be permitted unless such deferrals are in compliance with, or exempt from, Code Section 409A. In the event that the Company (or a
successor thereto) has any stock which is publicly traded on an established securities
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market or otherwise, distributions that are subject to Code Section 409A to any Participant who is a “specified employee” (as defined under Code Section 409A) upon a
separation from service may only be made following the expiration of the six (6)-month period after the date of separation from service (with such distributions to be made during the seventh (7th) month following separation of service), or, if
earlier than the end of the six (6)-month period, the date of death of the specified employee, or as otherwise permitted under Code Section 409A. For purposes of Code Section 409A, each installment payment provided under the Plan or an
Award Agreement shall be treated as a separate payment. Without in any way limiting the effect of any of the foregoing, (i) in the event that Code Section 409A requires that any special terms, provisions or conditions be included in the
Plan or any Award Agreement, then such terms, provisions and conditions shall, to the extent practicable, be deemed to be made a part of the Plan or Award Agreement, as applicable, and (ii) terms used in the Plan or an Award Agreement shall be
construed in accordance with Code Section 409A if and to the extent required. Further, in the event that the Plan or any Award shall be deemed not to comply with Code Section 409A, then neither the Company, the Administrator nor its or
their designees or agents shall be liable to any Participant or other person for actions, decisions or determinations made in good faith.
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VOTE BY INTERNET - www.proxyvote.com
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VULCAN MATERIALS COMPANY
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Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time the day before the
cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
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1200 URBAN CENTER DR
BIRMINGHAM, AL 35242
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ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
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If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up
for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
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VOTE BY PHONE - 1-800-690-6903
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Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the
instructions.
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VOTE BY MAIL
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Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
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TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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KEEP THIS PORTION FOR YOUR RECORDS
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THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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The Board of Directors recommends you vote FOR
the following:
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1.
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Election of Directors
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Nominees
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For
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Against
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Abstain
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1A
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Elaine L. Chao
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¨
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¨
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¨
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1B
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Lee J. Styslinger, III
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¨
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¨
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¨
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1C
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Douglas J. McGregor
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¨
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¨
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¨
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1D
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Vincent J. Trosino
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¨
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¨
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¨
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The Board of Directors recommends you vote FOR
proposals 2, 3 and 4.
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For
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Against
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Abstain
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2.
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Approval of the Vulcan Materials Company 2016 Omnibus Long-Term
Incentive Plan.
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¨
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¨
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3.
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Approval, on an advisory basis, of the compensation of our named
executive officers.
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¨
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¨
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4.
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Ratification of the appointment of Deloitte & Touche LLP as
our independent registered public accounting firm for 2016.
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¨
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¨
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NOTE:
Such other business as may properly come
before the meeting or any adjournment thereof.
Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners
should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name, by authorized officer.
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Signature [PLEASE SIGN WITHIN BOX]
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Date
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Signature (Joint Owners)
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Date
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Important Notice Regarding the Availability of Proxy Materials for the Annual Meeting:
The Annual Report, Notice & Proxy
Statement are available at
www.proxyvote.com
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VULCAN MATERIALS COMPANY
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Annual Meeting of Shareholders
May 13, 2016
This proxy is solicited by
the Board of Directors
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The undersigned hereby appoints O. B. Grayson Hall, Jr., Richard T. O’Brien and James T. Prokopanko, each of them, with power
to act without the other and with power of substitution, as proxies and attorneys-in-fact, and hereby authorizes them to represent and vote, as provided on the other side, all the shares of Vulcan Materials Company common stock which the undersigned
is entitled to vote, and, in their discretion, to vote upon such other business as may properly come before the 2016 Annual Meeting of Shareholders of the Company to be held on Friday, May 13, 2016, at 9:00 a.m., Central Daylight Time, at the Grand
Bohemian Hotel, 2655 Lane Park Road, Birmingham, Alabama 35223, or at any adjournment or postponement thereof, with all powers which the undersigned would possess if present at the Annual Meeting.
Shares represented by this proxy will be voted as directed by the
undersigned. If this proxy is signed and no such directions are indicated, the proxies have authority to vote “FOR” election of all director nominees, “FOR” approval of the Vulcan Materials Company 2016 Omnibus Long-Term
Incentive Plan, “FOR” approval, on an advisory basis, of the compensation of our named executive officers, and “FOR” ratification of the appointment of Deloitte & Touche LLP as our independent registered public accounting
firm for 2016.
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Continued and to be signed on reverse side
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