{"id":40025,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/independent-contractor-consulting-agreement-vulcan-materials.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"independent-contractor-consulting-agreement-vulcan-materials","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/independent-contractor-consulting-agreement-vulcan-materials.html","title":{"rendered":"Independent Contractor Consulting Agreement – Vulcan Materials Co."},"content":{"rendered":"

INDEPENDENT CONTRACTOR<\/strong><\/p>\n

\n

CONSULTING AGREEMENT<\/strong><\/p>\n

\n

BETWEEN<\/strong><\/p>\n

\n

VULCAN MATERIALS COMPANY<\/strong><\/p>\n

\n

AND<\/strong><\/p>\n

\n

JOHN R. McPHERSON<\/strong><\/p>\n

\n<\/p>\n

WHEREAS, Vulcan Materials Company, its successors, assigns, affiliates, and
\nsubsidiaries (“Vulcan”), has agreed, under certain conditions described herein,
\nto engage the services of McPherson in a consulting capacity in connection with
\nVulcan business, and McPherson desires to act in a consulting capacity to Vulcan
\nupon the terms and conditions hereinafter set forth;<\/p>\n<\/p>\n<\/p>\n

NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth
\nand intending to be legally bound, the parties hereto agree to enter into an
\nIndependent Contractor Consulting Agreement (“Consulting Agreement”) as set
\nforth below:<\/p>\n<\/p>\n<\/p>\n\n\n\n
\n

1.<\/p>\n<\/td>\n

\n

Engagement, Term and Compensation<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

(a) As referenced above, the obligations of this Consulting Agreement only
\nbecome effective in the event of an occurrence of McPherson153s termination of
\nemployment for any reason (including “Good Reason”) other than for “Cause” Prior
\nto October 18, 2015. The definitions of the terms “Good Reason” and “Cause”
\ncontained in McPherson153s Change in Control and Non-Competition Agreement dated
\nOctober 7, 2011 (“Change in Control Agreement”) are applicable to the terms of
\nthis Consulting Agreement.<\/p>\n<\/p>\n<\/p>\n

(b) Assuming the provisions in paragraph 1(a) are met, Vulcan agrees to
\nretain McPherson153s services and McPherson hereby agrees to make himself
\navailable to Vulcan to provide consulting services for 400 hours annually over a
\nthree year period beginning with the first business day of the calendar month
\nimmediately following the termination of employment described in paragraph 1(a)
\nabove (the “Term” of this Consulting Agreement). As compensation for his
\nservices, McPherson shall receive, during the Term of this Consulting Agreement,
\na monthly consulting fee equal to the sum of $43,333 per month. The first
\npayment will be paid to McPherson on the first business day of the calendar
\nmonth in which the Term begins. Thereafter, the monthly consulting fee may be
\npaid to McPherson in accordance with the customary payroll practices for service
\nproviders of Vulcan, but no less frequently than monthly.<\/p>\n<\/p>\n<\/p>\n

(c) Vulcan shall reimburse McPherson for all reasonable expenses incurred by
\nhim during the Term in connection with the performance of his duties hereunder,
\nprovided such expenses are in accordance with the policies of Vulcan in effect
\nat the time of the expenditure and are within such reasonable budgeted limits,
\nif any, as may be established from time to time by the executive officers of
\nVulcan. Upon receipt of the expense request (but in no event later than the
\nclose of McPherson153s taxable year following the taxable year in which the
\nexpense was incurred), Vulcan shall promptly reimburse McPherson for such
\nexpenses.<\/p>\n<\/p>\n<\/p>\n

Page 1 of 4<\/p>\n

\n

\n

(d) McPherson hereby acknowledges and agrees that during the Term of this
\nConsulting Agreement he shall not be eligible to accrue benefits in any employee
\nbenefit retirement plans maintained by Vulcan (or any of its affiliates), or to
\nreceive any fringe benefits or participate in any welfare benefit plan other
\nthan that for which he is eligible pursuant to the terms of his Change in
\nControl Agreement and in accordance with applicable law.<\/p>\n<\/p>\n<\/p>\n\n\n\n
\n

2.<\/p>\n<\/td>\n

\n

Duties<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

(a) During the Term, McPherson shall serve as a consultant to Vulcan with
\nrespect to such business matters and at such times and places as the officials
\nof Vulcan may reasonably request. McPherson shall act in the capacity of an
\nindependent contractor and shall not be subject to the direction, control or
\nsupervision of Vulcan with respect to consulting services or procedures followed
\nin the performance of his consulting services hereunder. McPherson represents
\nand warrants that he shall assume all obligations and duties of an independent
\ncontractor and that he shall hold Vulcan harmless from all liabilities, actions,
\nsuits, audits, assessments, or other claims made or brought by any person,
\ncorporation, tax authority, governmental agency or entity. McPherson will not be
\nconsidered an agent, employee, executive officer or servant of Vulcan during the
\nTerm of this Consulting Agreement and McPherson will have no authority to bind
\nVulcan in any capacity for any purpose.<\/p>\n<\/p>\n<\/p>\n

(b) McPherson shall assist with various strategic planning and business
\ndevelopment opportunities for Vulcan, pursuant to the direction of Vulcan153s
\nChief Executive Officer or as otherwise determined by Vulcan153s Board of
\nDirectors.<\/p>\n<\/p>\n

(c) The specific hours during which McPherson performs such services on any
\ngiven day will be within McPherson’s control.<\/p>\n<\/p>\n<\/p>\n\n\n\n
\n

3.<\/p>\n<\/td>\n

\n

Covenants<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

(a) McPherson agrees that he will not use Confidential Information in any way
\nthat might injure or damage Vulcan or disclose such Confidential Information to
\nanyone without Vulcan153s prior written consent, and agrees to return promptly at
\nthe close of this Consulting Agreement any written Confidential Information
\nincluding all copies (in electronic, hard copy or other form) that he may have
\nin his possession. Unless at Vulcan153s request, pursuant to his duties under this
\nConsulting Agreement, or as otherwise provided by law, he also agrees to refrain
\nfrom discussing any of Vulcan153s business matters with anyone, including, but not
\nlimited to, Vulcan153s employees, customers, vendors, or competitors.<\/p>\n<\/p>\n<\/p>\n

(b) As used above, “Confidential Information” means information which meets
\nall of the following criteria: (1) disclosed to or known by McPherson as a
\nconsequence of or through work performed by him during his prior employment with
\nVulcan or pursuant to the terms of this Consulting Agreement; (2) not generally
\nknown outside Vulcan; and (3) which relates to Vulcan153s business or internal
\nprocedures. Confidential Information includes, but is not limited to, trade
\nsecrets as defined in the Alabama Trade Secrets Act, Alabama Code \u00a7 \u00a7 8-27-1 et.
\nseq., as amended.<\/p>\n<\/p>\n<\/p>\n

(c) Vulcan shall be deemed to be the absolute and unqualified owner of all
\nwork produced by McPherson under this Consulting Agreement, and all data and
\nresearch materials for which Vulcan has reimbursed McPherson, it being
\nunderstood that McPherson acts as an independent contractor and has no right,
\ntitle, or interest in or to such material.<\/p>\n<\/p>\n<\/p>\n

Page 2 of 4<\/p>\n

\n

\n<\/p>\n

(d) In the event any covenant contained in this Section 3 shall be to any
\nextent construed by any court of competent jurisdiction as being too broad in
\narea or time, or both, or otherwise to any extent held invalid, then those
\nportions thereof which may be construed to be invalid or unenforceable shall be
\nsevered and the remaining portions thereof shall continue in full force and
\neffect. The covenants set forth in this Section 3 are and shall be construed as
\nindependent covenants and shall survive the expiration or sooner termination of
\nMcPherson’s services hereunder.<\/p>\n<\/p>\n<\/p>\n

(e) During the Term of this Consulting Agreement, McPherson acknowledges he
\nmay be exposed to airline or flying related activities, industrial activities,
\nor mining activities and areas of mining, both dormant and active, and to areas
\nwhich are otherwise acknowledged to pose a risk of injury to person and
\nproperty. Thus, as part of this Consulting Agreement, McPherson, on behalf of
\nhimself, his spouse, legal representatives, personal representatives, estate,
\nheirs, assigns, and beneficiaries (hereinafter collectively referred to as the
\n“Consultant” for purposes of this Section), hereby waives and discharges Vulcan,
\nits successors, subsidiaries, affiliates, agents, employees, officers and
\ndirectors (hereinafter collectively referred to as “Vulcan” for purposes of this
\nSection) from all liability for any and all loss or damage, any claim or damages
\nresulting therefrom, on account of injury to Consultant153s person or property,
\neven injuries resulting in the death of Consultant, while Consultant is on or
\nabout the property of Vulcan or performing work for Vulcan.<\/p>\n<\/p>\n<\/p>\n

(f) In addition, it is specifically agreed that damages would be inadequate
\nto compensate Vulcan for any breach or threatened breach by McPherson of any
\nsuch covenants and that the breach by McPherson of any of such covenants will
\nresult in irreparable harm and injury to Vulcan. Therefore, McPherson agrees and
\nconsents that Vulcan shall, in addition to and without limiting any other remedy
\nor right it may have, be entitled to such equitable and injunctive relief as may
\nbe available to restrain or prevent a breach or contemplated breach of any such
\ncovenant, such right to be cumulative and in addition to any other remedy Vulcan
\nmay have, including the recovery of damages by Vulcan.<\/p>\n<\/p>\n<\/p>\n\n\n\n
\n

4.<\/p>\n<\/td>\n

\n

Termination of the Agreement<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

This Consulting Agreement may be terminated prior to its termination date
\nunder the following circumstances, at any time, by Vulcan in the event any of
\nthe following occurs:<\/p>\n<\/p>\n<\/p>\n

(a) McPherson is arrested for, charged with, convicted of or pleads guilty to
\na crime constituting a felony or involving moral turpitude; or<\/p>\n<\/p>\n<\/p>\n

(b) McPherson engages in misconduct satisfying the definition of “Cause” as
\nset forth in his Employment Agreement; or<\/p>\n<\/p>\n<\/p>\n

(c) The death of McPherson, or his experiencing a disability such that he is
\nunable to perform his duties hereunder, with or without reasonable
\naccommodation.<\/p>\n<\/p>\n<\/p>\n

Page 3 of 4<\/p>\n

\n

\n<\/p>\n\n\n\n
\n

5.<\/p>\n<\/td>\n

\n

Miscellaneous<\/u><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

(a) This Consulting Agreement shall be binding upon Vulcan, its successors
\nand assigns and shall be binding upon McPherson in accord with its terms. This
\nConsulting Agreement may be assigned by Vulcan to any of its subsidiaries or
\naffiliates, without consent of McPherson. This Consulting Agreement shall not be
\nassignable by McPherson.<\/p>\n<\/p>\n<\/p>\n

(b) McPherson shall have full responsibility for satisfying any liability for
\nany federal, state or local income or other taxes required by law to be paid
\nwith respect to the fees paid to him pursuant to this Consulting Agreement.<\/p>\n<\/p>\n<\/p>\n

(c) The interpretation and enforcement of this Consulting Agreement shall be
\ngoverned by the laws of the State of New Jersey without application of its
\nconflicts of laws provisions.<\/p>\n<\/p>\n<\/p>\n

(d) This Consulting Agreement constitutes the entire understanding between
\nthe parties with reference to the subject matter hereof and shall not be changed
\nor modified except by a written instrument executed by both parties. The waiver
\nby either party of a breach of any provisions of this Consulting Agreement by
\nthe other party shall not be construed as a waiver of any subsequent or other
\nbreach by such other party.<\/p>\n<\/p>\n<\/p>\n

(e) To the extent applicable, this Consulting Agreement is intended to comply
\nwith, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as
\namended (“Code”). This Consulting Agreement will be administered, construed and
\ninterpreted in accordance with such intent. In the event that McPherson
\ndetermines, in good faith, that a provision of this Consulting Agreement or that
\nthe terms of his consulting relationship with Vulcan could reasonably violate
\nSection 409A of the Code or result in taxes accrued pursuant to Section 409A of
\nthe Code, McPherson has the right to request a modification or amendment to this
\nConsulting Agreement or to the terms of his consulting relationship with Vulcan
\nthat will cure such a violation. In the event that Vulcan denies McPherson153s
\nrequest for modification or amendment of this Consulting Agreement or to the
\nconsulting relationship, McPherson has the right to unilaterally terminate this
\nConsulting Agreement.<\/p>\n<\/p>\n<\/p>\n

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
\nof October 7, 2011.<\/p>\n<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

VULCAN MATERIALS COMPANY<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

\/s\/ Donald M. James<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

By Its:<\/p>\n<\/td>\n

\n

Chairman and Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

\/s\/ John R. McPherson<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

John R. McPherson<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Page 4 of 4<\/p>\n

\n

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