EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS EMPLOYMENT AGREEMENT is entered into as of the 1st day of November 2006, by and
between Meadow Valley Corporation, a Nevada corporation (the “Employer”), and Xxxxxxx X. Xxxxxx
(the “Employee”).
The Employer hereby employs the Employee on a full-time basis, and the Employee
hereby accepts such full-time employment on the terms and conditions hereinafter set
forth.
1. EMPLOYMENT. Employee is employed as the President and Chief Executive
Officer for the Employer. Employee shall perform all duties as outlined herein and as may be
assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the
Employer. The duties of the Employee shall specifically be:
A) To serve as a member of the Board of Directors, report directly to
the Board, communicate with the board regarding current operational and
financial status of Employer and strategic plans.
B) To present to the board, for board approval, annual operating plans,
capital improvement programs, budgets and annual updates of strategic plans.
C) To assist the Chief Operating Officer in organizing operations
personnel to maximize productivity and synergy between various area managers.
Delegate responsibilities and oversee activities in the areas of finance/accounting,
operations, estimating/marketing, safety and human resources.
D) To actively represent the Employer in industry organizations where
the membership is deemed to be beneficial to the Employer; and serve as board
member and/or officer in said organizations when elected to do so.
E) To seek out, and present to the board, any opportunities for
acquisition and/or investment for growth of the Employer, and to negotiate or
assist in the negotiations of acquisitions or investment expenditures.
F) To represent the Employer in contract negotiations with owners of
work, subcontractors and suppliers.
G) To establish, xxxxxx and maintain relationships with important
vendors and suppliers of strategic resources.
H) Any other area specifically assigned by the Board of Directors.
2. TERM. Subject to the provisions of termination provided in paragraph
12, the term of this Agreement shall be three years from the date of execution or from the
date of the most recent renewal. Subject to a mandatory annual review (“Review”) of the
Employee’s performance by the Board Compensation Committee (“Committee”). This
Agreement may be renewed annually by majority vote of the Committee.
3.
COMPENSATION. Employee shall receive a base salary of Two
Hundred Fifty Thousand Dollars ($250,000.00) per year, payable in accordance with the
regular payroll practices of Employer, and subject to applicable deductions of
withholding taxes and other customary employment taxes. The Committee of Employer
shall review Employee’s salary at a minimum annually and may adjust Employee’s salary
upward to recognize improvement, achievement or expansion of Employee’s
responsibilities.
Employee shall participate as a member of senior management in cash incentive plans as
currently existing or as amended or adopted in the future by the Committee. Cash bonus plans are
subject to annual review and/or change by the Committee.
4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible
to participate in the Meadow Valley Corporation 2004 Equity Incentive Plan. Future
grants of stock options shall be subject to the discretion of Meadow Valley Corporation’s
board of directors.
5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to
the Employee’s dependents, a comprehensive major medical, health, and dental insurance
program comparable to the programs normally provided by other employers in the same
industry and marketplace, and the Employer shall pay the cost of the Employee’s portion
of the premium. Should, at any time, the Employee opt to maintain a personal major
medical and health insurance policy for himself and for his dependents and not participate
in the Employer’s group plan, then Employer shall reimburse Employee the lesser of the
amount Employee pays for said personal policy, as evidenced by adequate
documentation, or what Employer would otherwise be paying were Employee
participating in the Employer’s group plan. Should the Employee opt to maintain his own
coverage, neither he nor his dependents shall be precluded from later participating in the
Employer’s group plan so long as they otherwise qualify for enrollment.
At Employer’s cost, Employer will maintain a life insurance policy covering Employee, with at
least $500,000 of death benefits being payable, in a manner that is free of income tax, to
Employee’s estate or other beneficiaries designated by Employee.
Employer agrees to provide Employee with an automobile for business-related use. In addition
to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee,
for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto.
Employer shall pay for, or reimburse Employee for, dues for his membership in industry related
associations perceived as beneficial to Employer and as approved by the Employer’s Executive
Committee.
So long as it is within the guidelines of the respective plan, Employee shall be given the
opportunity to participate in Employer’s 401(k) and any other plans made available to other members
of executive management.
Employee shall be entitled to receive all other employee benefits for senior management
personnel upon the terms and conditions then in effect.
6. MOVING
EXPENSES AND SUBSISTENCE. In the event the Employer requires the
Employee to relocate, the Employer shall pay for all moving costs of reasonable and normal
household effects, including up to six months storage of such household effects while Employee
obtains a permanent residence in the relocation area. Employee shall obtain a minimum of two moving
and storage quotes from reputable movers and Employer shall pay the most competitive rate.
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Employer shall provide Employee a subsistence allowance of Two Thousand Dollars ($2,000.00)
per month for the lesser of nine months from the date of reassignment in a new location or until
such time as the relocation of Employee and his/her spouse to the
relocation area is complete. In
addition, costs for one round-trip airline ticket per week between the Employee’s previous
location and the relocation area will be reimbursed by Employer to Employee during the same
nine-month period, or less if relocation is completed earlier. Such tickets may be used either by
Employee or by his/her spouse.
7.
HOLIDAYS AND VACATION.
A) Employee shall be paid for the following seven (7) holidays: New
Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
the day after Thanksgiving, and Christmas Day and all other holidays for
Employees of the Company as approved by the Chief Executive Officer or Board
of Directors.
B) Employee is entitled to four weeks vacation during the first year of
employment and for each year thereafter. Unused vacation in any given year shall
accrue to following years up to a maximum of eight weeks in any one year.
8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote
such reasonable time as is necessary or is deemed reasonably necessary by the Employer
to carry out all required duties and will devote full time to the
Employer during normal
business hours. The Employee shall at all times faithfully, with diligence and to the
Employee’s best good faith ability, experience and talents, perform all the duties that may
be required pursuant to the express terms hereof to the reasonable satisfaction of the
Employer, in accordance with customary professional standards.
9. WORKING FACILITIES. The Employee shall be furnished with all
facilities and services suitable to Employee’s position and adequate for the performance
of Employee’s duties.
10. EXPENSES. The Employee is authorized to incur reasonable expenses
for promoting business of the Employer, including expenses for entertainment, travel and
similar items. The Employer shall reimburse the Employee for all such expenses on the
presentation by the Employee of itemized and adequately documented accounts of such
expenditures.
11. DISABILITY. If unable to perform duties under the terms of this
Agreement by reason of illness or incapacity for a period of four weeks, Employee shall,
commencing at the end of such four week period, be entitled to receive Employee’s
compensation hereunder for a period of up to and including a maximum of one year or
until he is no longer disabled, whichever occurs first. After one year of disability at full
salary, the Employee, or his designated beneficiary, shall be provided with a disability
insurance policy, if available, at no cost to Employee. The disability income policy
would provide for monthly income benefits at the rate of sixty percent (60%) of the
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Employee’s base salary at the time the disability occurred. The Company will attempt to procure a
disability income policy that would provide monthly benefits until the Employee reaches 65 years of
age or is no longer disabled whichever occurs first. If such a policy is unavailable, the Company
will attempt to provide the best policy available. If no policy is available, no other disability
income benefits will be provided.
12. TERMINATION. This Employment Agreement may be terminated under the
following circumstances:
A) WITHOUT CAUSE. Employer may terminate this Agreement at
any time upon thirty (30) days written notice to Employee, but Employer shall be
obligated to pay to Employee compensation in a lump sum for the balance of the
term of this Agreement within 30 days of termination, unless Employee agrees to
other payment terms.
B)
VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may terminate this Agreement at any time upon thirty (30)
days written notice to Employer and Employer shall be obligated, in that event, to
pay Employee compensation up to the date of the termination only. All accrued
but unpaid compensation and Employee benefits shall be paid in cash within 30
days of termination, unless Employee agrees to other payment terms.
C)
TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may terminate this Agreement for reasonable cause upon
the unanimous vote of the Board of Directors and by thirty (30) days written
notice to the Employee and Employer shall be obligated, in that event, to pay
Employee compensation up to the date of termination only. For purposes hereof,
“cause” shall be defined as meaning (i) such conduct by the Employee which
constitutes material breach of this Agreement which is not cured within ninety
(90) days of written notice to the Employee of said alleged breach or (ii) a
material failure to competently perform Employee’s duties as stated in paragraph 1
in accordance with applicable professional standards as stated in paragraphs 1 and
8 hereof provided that Employer has previously given Employee written notice
and a reasonable opportunity to remedy such failure and such failure has a
materially adverse effect on the business or financial condition of Employer or
(iii) material breach of Employee’s fiduciary duty and such breach has a material
adverse effect on the business or financial condition of Employer or (iv)
egregiously improper or illegal conduct of the Employee which, based upon a
unanimous good faith determination of the Board of Directors of the Employer,
has a material adverse affect on Employer.
D)
TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may terminate this Agreement for
cause. In such event, Employer shall
be obligated to pay Employee compensation in lump sum for the balance of the term of this
Agreement within 30 days of termination or as Employee shall agree, plus damages suffered
and expenses incurred by reason thereof. For this purpose “cause” shall mean (i) a material
breach of this Agreement by Employer or (ii) failure of Employer to pay any amount owed
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Employee hereunder at the time and in the amount due or (iii) failure of Employer to
follow applicable law, especially with respect to SEC filings and compliance over the
objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously
improper conduct with respect to dealing with Employee or in a manner which brings
discredit to Employee.
13. CONFIDENTIALITY. Employee agrees not to disclose any
confidential, proprietary competitively sensitive information to persons who are not
employees, directors, lenders, bonding agents, insurance companies or advisors of the
Employer, except as required by law, without prior consent of the Employer; provided
however, any disclosure involving this paragraph shall not result in a breach of this
Agreement unless the disclosure has a materially adverse effect on the Employer.
14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc.
shall provide Employee with an Officer Indemnification Agreement in the form attached
hereto.
15. NOTICES. All notices, demands, and communications given under this
Agreement (“Notice”) shall be in writing and delivered personally or sent by registered or
certified mail, return receipt requested, in the United States mail, postage prepaid,
addressed as follows:
If to Employer:
If to Employee:
Xxxxxxx X. Xxxxxx
000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
or at such other address as a party may from time to time designate by Notice hereunder. Notice
shall be effective upon delivery in person, or if mailed, at midnight on the third business day
after the date of mailing.
16.
ASSIGNMENT OF AGREEMENT. Neither party may assign or
otherwise transfer this Agreement or any of its rights or obligations hereunder without the
prior written consent to such assignment or transfer by the other party hereto; and all the
provisions of this Agreement shall be binding upon the respective employees, successors,
heirs and assigns of the parties; provided, however, the benefits payable to Employee
hereunder in the event of disability or death or incapacity are payable to Employee’s
spouse or personal representative.
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17. SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement and the representations, warranties, covenants and other
agreements (however characterized or described) by both parties and contained herein or made
pursuant to the provisions hereof shall survive the execution and delivery of this Agreement.
18. FURTHER
INSTRUMENTS. The parties shall execute and deliver any
and all such other instruments in reasonable mutually acceptable form and substance and
shall take any and all such other actions as may be reasonably necessary to carry the intent
of the Agreement into full force and effect.
19. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for any
reason by any court of competent jurisdiction, governmental authority or otherwise, such
holding, declaration or pronouncement shall not affect adversely any other provision of
this Agreement, which shall otherwise remain in full force and effect and be enforced in
accordance with its terms, and the effect of such holding, declaration or pronouncement
shall be limited to the territory of jurisdiction in which made.
20. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies provided by
law. No delay or failure on the part of either party in the exercise of any right or remedy
arising from a breach of this Agreement shall operate as a waiver of any subsequent right
or remedy arising from a subsequent breach of this Agreement. The consent of any party
where required hereunder to any act or occurrence shall not be deemed to be a consent to
any other act or occurrence.
21. GENERAL PROVISIONS. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the state of Arizona. Except as
otherwise expressly stated herein, time is of the essence in performing under this
Agreement. This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements and understandings relating to the subject
matter of this Agreement as it relates to the parties’ duties and obligations from and after
November 1, 2006, and this Agreement may not be modified or amended or any term or
provision hereof waived or discharged except in writing signed by the party against whom
such amendment, modification, waiver or discharge is sought to be enforced. The
headings of this Agreement are for convenience in reference only and shall not limit or
otherwise affect the meaning thereof. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which taken together
shall constitute one and the same instrument.
22. SPECIAL
RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term of this Agreement, if (i) Employer is involved in
a merger, consolidation or other business combination in which Employer is not the
surviving and controlling entity; or (ii) all or substantially all the assets of Employer or
its
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principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the
Phoenix, Arizona area in a manner not mutually acceptable to Employee and Employer, then Employee
shall have the following rights:
A) To terminate this Agreement with 30 days prior notice, in which
event Employer shall pay Employee as if there were a termination without cause
by the Employer; and
B) All options granted shall, to the extent not specifically prohibited
by the 2004 Equity Incentive Plan, vest immediately and be exercisable within one
year of the occurring of one of the events set forth in (i), (ii) or (iii) above.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
| Meadow Valley Corporation | |||
/s/ Xxxxxxx X. Xxxxxx |
By | /s/ Xxxxxxx X. Xxxxxx | |
Employee
|
Chairman — Compensation Committee | ||
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