EXHIBIT 10.228
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 10th day of March
2003, 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 Vice President - Chief
Administrative 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 provide oversight and technical assistance to the
F-Cost system and provide assistance to projects to insure proper
accounting and allocation of job costs.
B) To provide and/or delegate the training for proper
use of F-Cost and Cash Flow (ECAC's).
C) To provide oversight and coordinate the purchase,
maintenance and upgrading of all information systems software and
hardware, as well as the training of individuals as to their proper
use.
D) To be responsible for all aspects of Risk Management,
including obtaining the most competitive insurance rates, negotiating
with and selecting insurance carriers and determining proper allocation
of insurance costs to operating units.
E) To assist the Company Safety/EEO Director in
minimizing workers compensation costs through competitive rates or
assisting in countering potentially fraudulent claims.
F) To coordinate with appropriate management all third
party claims, bond claims, arbitration or litigation in which the
Company may be involved and keep all interested parties informed of
their status.
G) To monitor, approve and allocate the Company's legal
costs and assist/advise all operating units relative to selection of
legal counsel.
H) To negotiate with, select and maintain adequate and
competitive employee health, welfare and dental plans.
I) To maintain the Company's 401(k), pension plans or
any other pension-related benefits that the Company has or may have in
place.
J) Assist in various tracking and reporting, such as the
Company's bid results and backlog reports.
K) Assist in preparing annual operating budgets,
strategic plans and any special assignments related to acquisitions or
mergers.
L) Any other assignment as may be delegated by the Chief
Executive Officer ("CEO"), the Chief Financial Officer ("CFO") or the
Chief Operating Officer ("COO").
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 CEO, this
Agreement may be renewed annually if the outcome of the Review results in a
recommendation for renewal by the CEO to the Board Compensation Committee
("Committee") and the Committee, by majority vote, authorizes the renewal.
3. COMPENSATION. Employee shall receive a base salary of One
Hundred Thousand Dollars ($100,000.00) 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 CEO 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 subject to approval of the Committee.
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 elligible to
participate in the Meadow Valley Corporation 1994 Stock Option 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.
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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 CEO or the COO.
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,
including long term disability insurance.
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.
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 CEO
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.
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10. EXPENSES. The Employee is authorized to incur reasonable
expenses for promoting the 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 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
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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 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:
Meadow Valley Corporation
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
If to Employee:
Xxxxxxx X. Xxxxxx
0000 X. Xxxxx
0
Xxxx, 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.
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
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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 12, 2002, 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 Meadow Valley Corporation is involved in a
merger, consolidation or other business combination in which Meadow Valley
Corporation is not the surviving and controlling entity and as a result thereof
the Employee is required to relocate outside the city of his/her current
residence in a manner not objectively reasonable, then Employee shall have the
following rights:
A) To terminate this Agreement with 30 days prior notice, in
which event Employer shall pay Employee a lump sum equal to the Employee's
compensation for the remainder of the term of this Agreement, payable within
fourteen calendar days of the date of termination; and
B) All options granted shall, to the extent not specifically
prohibited by the stock option plan then in effect, vest immediately and be
exercisable within one year of the termination notice provided in A above.
The provisions of this Section 22 shall supercede the entitlements set forth in
paragraph 12 TERMINATION in the events contemplated within this Section 22.
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
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Employee Chairman - Compensation Committee
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