Exhibit 10.204
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 15th day of August
2002, by and between Meadow Valley Contractors, Inc., a Nevada corporation
(the "Employer" or "Company"), and Xxxxxx Xxxxxx (the "Employee"). Meadow
Valley Contractors, Inc. is a wholly owned subsidiary of Meadow Valley
Corporation ("Parent").
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 an Area Manager 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) Complete responsibility for the operational and financial aspects
of the Employee's assigned Area, including profit and loss responsibility.
B) To select, hire and maintain qualified management personnel and
to administer and review annually the performance of each person within
his direct supervision and adjust compensation in accordance with Company
guidelines and subject to the prior approval of the Parent's Chief
Operating Officer.
C) To oversee the selection, preparation and submission of
construction contract estimates and materials sales quotes and proposals
and to determine margins in order to maximize Company profitability.
D) To oversee the preparation of annual or periodic revisions of
project and materials plant budgets for submission to the Parent's Chief
Operating Officer for approval, to insure that cost controls are in place
and utilized to accurately track production and delivery costs, to monitor
customer and project schedules to insure timely and accurate delivery of
products and to provide decision-making and problem-solving assistance in
all aspects of the Area. To oversee the negotiation, preparation and
execution of all subcontracts, purchase agreements, credit policies and
other agreements within the Area and as may be required by the Parent's
Chief Administrative Officer.
E) To maintain and promote relationships with customers and owners
with whom the Company contracts.
F) To insure that periodic reporting such as monthly production
reports, project Fcosts and ECAC's and other cost and revenue reports as
required by management are prepared and submitted correctly and on a
timely basis.
G) Prepares annual operating budgets and capital expenditure budgets
and periodic forecasts as required.
H) Resolve complaints and/or claims relating to the Area, or to
provide assistance in preparing for and presenting the Company's position
in claims hearings.
I) To provide input and counsel to strategic and business plans for
the entire Company.
J) To assist in any other projects or duties as may be assigned by
the Chief Operating Officer.
K) To see that all Company policies are enforced and adhered to.
2. TERM. Subject to the provisions of termination provided in paragraph
11, the initial term of this Agreement shall commence on August 15, 2002 and
terminate on August 15, 2005. This Agreement may be extended by the mutual
written agreement of the Employee and the Employer.
3. COMPENSATION. Employee shall receive a base salary of Ninety-four
thousand dollars ($94,000.00) 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 Parent's Chief
Operating Officer 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 Parent's
Board Compensation Committee.
Employee shall participate in cash incentive plans as currently existing
or as amended or adopted in the future by the Compensation Committee of Parent's
Board of Directors. Cash bonus plans are subject to annual review and/or change
as recommended by the Compensation Committee and approved by the Board of
Directors of the Parent.
4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible 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, at the
election of the Employee, 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.
Insurance coverage may be subject to pre-existing condition limitations. 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 and subject to verification of insurability, Employer
will maintain a life insurance policy covering Employee, with at least $250,000
of death benefits being payable, in a manner that is free of income tax, to
Employee's estate or other beneficiaries designated by Employee.
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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 Chief Executive Officer or the Chief Operating Officer.
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).
6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employee is required
to relocate during the term of this Agreement, 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 and his/her spouse obtain a
permanent residence. Employee shall obtain two moving and storage quotes from
reputable movers and Employer shall pay the most competitive rate.
Employer shall provide Employee a subsistence allowance of One Thousand
Dollars ($1,000.00) per month for the lesser of three months from the date of
the new geographical assignment or until such time as the relocation of the
Employee and his/her spouse is complete.
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 three weeks vacation each year. Unused
vacation in any given year shall accrue to following years up to a maximum
of eight weeks in any one year. All other conditions with respect to
vacations shall be consistent with the Company's vacation and holiday
policy.
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 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. 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 the amount of one year's
salary 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 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 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, in the Employer's sole discretion, has a material
adverse affect on Employer.
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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 or (iv) egregiously improper conduct with respect
to dealing with Employee or in a manner which brings discredit to
Employee.
12. 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.
13. 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 Contractors, Inc.
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
If to Employee:
Xxxxxx Xxxxxx
X.X. Xxx 000
Xxx Xxxxx, 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.
14. 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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15. 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.
16. 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.
17. 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.
18. 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.
19. 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 July 22, 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.
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20. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term
of this Agreement, if the Employer or the Parent is involved in a merger,
consolidation or other business combination in which the Employer or the Parent
is not the surviving and controlling entity and the Employee is required to
relocate outside out of the State in which the Employee resides at the time of
the merger, consolidation or other business combination 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 an amount equal to one year's salary at the
Employee's current rate 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.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Meadow Valley Contractors, Inc.
/s/ Xxxxxx Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Employee President/CEO
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