AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of August 18, 1999, between U.S. Aggregates,
Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx, Xx.
("Executive").
The parties hereto desire to enter into an agreement pursuant to which
Executive shall be employed by the Company as the Company's President and Chief
Operating Officer. Certain defined terms used herein are set forth in Section 9
below.
The parties hereto agree as follows:
1. Employment. The Company agrees to employ Executive and Executive
accepts such employment for the period beginning as of the date hereof and
ending upon termination pursuant to Section 3(a) hereof (the "Employment
Period"). During the Employment Period, Executive shall serve as the President
and Chief Operating Officer of the Company, subject to customary oversight by
the Company's board of directors (the "Board").
2. Compensation. During the Employment Period, the Company will pay
Executive a base salary (the "Annual Base Salary") as the Board may designate
from time to time, at a rate initially equal to $250,000 per annum, which amount
shall be reviewed annually and shall be subject to adjustment as determined by
the Board in its discretion, based upon, among other things, the Company's
achievement of certain performance objectives; provided Annual Base Salary shall
not be less than $250,000 per annum. Following the end of each fiscal year, the
Board may, in its sole discretion, award a bonus (a "Bonus") to Executive in an
amount as determined by the Board in its discretion, based upon, among other
things, the Company's achievement of budgetary and other objectives. The Board
will consult with Executive at the beginning of each budgetary period to set
reasonable budgetary and other objectives against which the Company's
performance will be measured. Executive's Annual Base Salary for any partial
year will be prorated based upon the number of days elapsed in such year.
3. Termination.
(a) Employment Period. Unless renewed upon mutual agreement of the
Company and Executive, the Employment Period will continue until December 31,
2002, Executive's resignation, Disability or death or until the Board determines
in its good faith judgment that termination of Executive's employment is in the
best interests of the Company. Upon mutual agreement of the Company and
Executive, the Employment Period may be extended for successive one-year terms.
(b) Severance Payments.
(i) In the event Executive's employment is terminated by the Company
without Cause (excluding any expiration of the initial or any renewal of the
Employment Period) or as a result of Executive's death or Disability, the
Company shall pay to Executive severance pay ("Severance Pay") equal to
Executive's Annual Base Salary, plus the amount of any Bonus received for the
year prior to such termination, per year for a period of two years following the
date of such termination, payable within 15 days following such termination.
(ii) In the event the Employment Period is terminated for any reason
other than Cause prior to December 31, 2002, Executive shall be entitled to
health insurance of such coverage as provided to Executive prior to such
termination until December 31, 2004. In the event the Employment Period is
terminated for Cause prior to December 31, 2002 or for any reason (including
expiration and non-renewal) on or after December 31, 2002, Executive shall be
entitled to health insurance of such coverage as provided to Executive prior to
such termination until two years after the end of the Employment Period.
4. Confidential Information. Executive acknowledges that the
information, observations and data obtained by him during the course of his
performance under this Agreement concerning the business and affairs of the
Company and its affiliates (the "Confidential Information") are the property of
the Company. Therefore, Executive agrees that he will not disclose to any
unauthorized person or use for his own account any of such information,
observations or data without the Board's written consent, unless and to the
extent that the aforementioned matters become generally known to and available
for use by the public, other than as a result of Executive's acts or omissions
to act. Executive agrees to deliver to the Company at the termination of his
employment, or at any other time the Company may request in writing, all
memoranda, notes, plans, records, reports and other documents (and copies
thereof) relating to the Confidential Information (including, without
limitation, all acquisition prospects, lists and contact information) which he
may then possess or have under his control.
5. Noncompetition and Nonsolicitation.
(a) Noncompetition. Executive acknowledges that in the course of his
employment with the Company he will become familiar with the Company's trade
secrets and with other confidential information concerning the Company and that
his services will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that during the Noncompete Period (as defined in
Section 9 below) he shall not directly or indirectly own, manage, control,
participate in, consult with, render services for or in any manner engage in any
business competing with the businesses of the Company or its Subsidiaries as
such businesses exist on the date of the termination of Executive's employment,
within 100 miles any site of operations in which the Company or its Subsidiaries
engage in such businesses or are then in negotiations to acquire such
businesses.
(b) Nonsolicitation. During the Noncompete Period, Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the Company
or such Subsidiary, or in any way knowingly
- 2 -
interfere with the relationship between the Company or any Subsidiary and any
employee thereof, (ii) hire any person who was an employee of the Company or any
Subsidiary at any time during the last 12 months of the Employment Period or
(iii) induce or attempt to induce any customer, supplier, licensee or other
business relation of the Company or any Subsidiary to cease doing business with
the Company or such Subsidiary, or in any way knowingly interfere with the
relationship between any such customer, supplier, licensee or business relation
and the Company or any Subsidiary.
(c) Enforcement. If, at the time of enforcement of Section 4 or 5 of
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum duration, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed to revise the restrictions contained herein to cover
the maximum duration, scope and area permitted by law. Because Executive's
services are unique and because Executive has access to confidential
information, the parties hereto agree that money damages would be an inadequate
remedy for any breach of this Agreement. Therefore, in the event of a breach or
threatened breach of this Agreement, the Company or its successors or assigns
may, in addition to other rights and remedies existing in their favor, apply to
any court of competent jurisdiction for specific performance and/or injunctive
or other relief in order to enforce, or prevent any violations of, the
provisions hereof (without posting a bond or other security).
6. Executive Representations. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement,
confidentiality agreement or other similar agreement with any other person or
entity and (iii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms.
7. Survival. Paragraphs 4 and 5 shall survive and continue in full
force in accordance with their terms notwithstanding any termination of the
Employment Period.
8. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
If to the Company:
U.S. Aggregates, Inc.
000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
- 3 -
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxxx
If to Executive:
Xxxxxx X. Xxxxxx, Xx.
U.S. Aggregates, Inc.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
9. Definitions.
"Cause" means (i) the commission of a felony or a crime involving moral
turpitude or the commission of any other act involving dishonesty, disloyalty or
fraud with respect to the Company or any of its Subsidiaries, (ii) conduct
tending to bring the Company or any of its Subsidiaries into public disgrace or
disrepute, (iii) failure to perform duties as reasonably directed by the Board,
(iv) gross negligence or willful misconduct with respect to the Company or any
of its Subsidiaries or (v) any other material breach of this Agreement or any
other agreement to which Executive and the Company are parties which is not
cured within 10 days after written notice thereof to Executive.
"Disability" means Executive's inability, because of injury, illness or
other incapacity to perform the services to the Company contemplated hereby for
a continuous period of 90 days or for 120 days out of a continuous period of 360
days. Such Disability shall be deemed to have occurred on the 90th consecutive
day or the 120th day within the specified period, as applicable.
"Noncompete Period" means the Employment Period plus the two year period
immediately subsequent the Employment Period.
"Subsidiary" means any corporation of which the Company owns securities
having a majority of the ordinary voting power in electing the board of
directors directly or through one or more subsidiaries.
- 4 -
10. General Provisions.
(a) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(b) Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
(c) Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
(d) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective successors and assigns; provided
that the rights and obligations of Executive and the Company under this
Agreement shall not be assignable without the prior written consent of the other
party.
(e) Choice of Law. The corporate law of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by and construed in accordance
with the internal laws of the State of Illinois, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
(f) Remedies. Each of the parties to this Agreement will be entitled
to enforce its rights under this Agreement specifically, to recover damages and
costs (including attorneys' fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and/or
other injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
- 5 -
(g) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the Company and
Executive.
* * * * *
- 6 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
U.S. Aggregates, Inc.
By: /S/ Xxxxxxx X. Xxxxx
---------------------------
Its: Executive Vice President
/S/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
- 7 -
