EXHIBIT 10.108
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 1/st/ day of March
1999, 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
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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
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12, the initial term of this Agreement shall commence on day and year first
written above and terminate on March 1, 2004. 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 One Hundred
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Sixty-two Thousand Seven Hundred Fifty Dollars ($162,750.00) 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 Board Compensation 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 Compensation Committee of Employer'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.
4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible to participate
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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
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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 $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.
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
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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.
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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.
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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
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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
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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
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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
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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
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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
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following circumstances:
A) WITHOUT CAUSE. Employer may terminate this Agreement at any time
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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
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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.
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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.
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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
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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,
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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
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provide Employee with an Officer Indemnification Agreement in the form attached
hereto.
15. NOTICES. All notices, demands, and communications given under this
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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
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
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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
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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
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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,
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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
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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
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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 March 1, 1999, 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
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of this Agreement, if (i) Employer is involved in a merger, consolidation or
other business combination in which Employer is not the
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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 stock option plan then in effect, 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/ Xxxx X. Agron
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Employee Temp. Chairman - Compensation Committee
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