THIS EMPLOYMENT AGREEMENT (“Employment Agreement”) is entered into,
EXHIBIT 10.30
THIS EMPLOYMENT AGREEMENT (“Employment Agreement”) is entered into,
effective as of January 1, 2021 (“Effective Date”), by and between CRH AMERICAS, INC. (the
“Company”) and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Executive”). NOW, THEREFORE, in consideration of
material advancement and the mutual agreements set forth below, the adequacy of which are hereby
acknowledged, the parties agree as follows:
1.Employment. The Executive commenced his employment with the Company on May 16,
2011. The Company hereby agrees to continue to employ the Executive, and the Executive
▇▇▇▇▇▇ accepts to continue his employment with the Company, upon the terms and conditions
set forth herein. The Executive’s employment shall continue to be “at-will,” except as
otherwise provided in Section 4 below. The Executive shall be employed by the Company as
President Building Products. This is a full-time exempt position. The Executive may also
serve as one of the Company’s board members or as an officer or director of any affiliate of
the Company. The Executive’s normal places of work and duties shall be at the Company’s
subsidiary’s offices located in Texas. In addition, the Executive may be required to travel
both within the United States and abroad.
2.Duties. The services performed by the Executive shall be subject to the terms and conditions
set forth in this Agreement, and the Company’s policies, rules and practices generally
applicable to its employees at the executive level, as established from time to time by the
Company. Such duties shall be performed to the reasonable satisfaction of the Company and
shall be rendered at such places as the interests, needs, business, and opportunities of the
Company require or make advisable, with the exception that any permanent relocation of
Executive from the normal place of work and duties stated in Section 1 shall require
Executive’s prior written consent. The Executive acknowledges that the employment
described herein is full-time employment, and the Executive agrees that he shall diligently
and conscientiously devote his exclusive service, attention, energies, talents, and best efforts
in discharging his duties. The Executive shall devote all time necessary to meet or exceed the
Company’s business goals and objectives. The Executive will disclose promptly in writing to
the Chief Executive of CRH, plc all directorships, partnerships, and any shareholdings in
companies other than a company from the Group, as defined below, in excess of one percent
(1%) of the outstanding shares of capital stock of any company which is traded on a
nationally recognized stock exchange. The Executive will be permitted to carry out any such
disclosed interests during the course of the employment and to be paid and retain fees
therefor, subject to the limitations set out in Section 8(e).
3.Compensation.
(a)Base Salary. The Company shall pay to the Executive a fixed annual salary (the
“Base Salary”) of USD$900,000, less applicable taxes, withholdings and authorized
deductions. The Base Salary shall be due and payable in equal semi-monthly
installments or in such other installments as may be necessary to comport with the
Company’s normal pay periods (“Installments”). The Base Salary will be reviewed
annually, such review not to result in a basic salary lower than the salary in the
previous year unless otherwise agreed with the Executive.
(b)Performance Bonus. The Executive will be eligible to receive an annual discretionary
bonus with a target of 87.5% of the Base Salary (the “Target Bonus”), a minimum of
0% of Base Salary and up to a maximum of 175% of the Base Salary. Said bonus will
be tied to performance targets set from time to time for both the Company and its
affiliates and for the Executive. Any bonus will be paid to the Executive less any
deductions required by law or Company practice. Except in the case of a Termination
for Cause under Section 4(c), the Executive’s eligibility under this clause to receive
an annual discretionary performance bonus in respect of a particular calendar year
shall not be adversely impacted (whether as to payment or calculation) if the
Executive ceases employment with the Company between the beginning of the
following calendar year and the usual payout date in respect of any such bonus.
In addition to the foregoing, as to any such bonus received by the Executive during the time
the Executive is a GLT member, 25% of such bonus will be delivered in restricted shares of common
stock of CRH, plc which will vest three (3) years after the date of grant of such shares. Such grant
shall be subject to the terms of any plan sponsored by the Company, or by any Company parent or
affiliate, which governs restricted stock grants, as well as any applicable grant agreement, including
but not limited to the CRH plc 2014 Deferred Share Bonus Plan, which may be modified from time
to time.
(c)Benefits. The Executive shall continue to be entitled to participate in the standard
Company benefit package, which may be modified by the Company from time to
time, subject to plan requirements and contribution by the Executive toward the cost
of such insurance coverage as similarly required from other employees. During the
Executive’s employment, the Executive will be entitled to such vacation allotment as
has been dictated by past practice for similarly situated employees, subject to the
terms of the Company’s normal vacation policy. The Executive will continue to
receive an auto allowance in the same amount as may be allocated to similarly
situated employees on the same terms that apply to the receipt of this benefit as of the
date of execution of this Agreement. The Executive will be entitled to participate in
the following Plans/Programs:
(i)CRH Performance Share Plan 2014,
(ii)CRH Americas Supplemental Executive Retirement Plan (SERP),
(iii)Executive Life Insurance Program,
(iv)CRH Americas 401k Plan,
(v)CRH Americas Medical Plan,
(vi)Executive Long and Short Term Disability Plans, and
(vii)any other plans or programs outlined in the Corporate Group Handbook
applicable to the Executive. Participation in any plan is at all times subject to
the rules and requirements of that Plan. The Company and its affiliates reserve
the right to amend or modify in their entirety any of the above-mentioned
benefit programs.
(d)Expenses. The Executive shall be entitled to reimbursement for reasonable and
necessary out-of-pocket business, entertainment, and travel expenses incurred by the
Executive in connection with the performance of the Executive’s duties, in
accordance with the reimbursement policies adopted by the Company from time-to-
time.
(e)Withholding Taxes. Taxes, applicable withholding and authorized or required
deductions will be deducted from all payments to Executive.
(f)Shareholding Requirements.
The Executive, at any point during which he is a GLT member, shall be required, within
five (5) years of the date Executive initially becomes a GLT member, or the Effective Date of this
Agreement, whichever is later, and for the duration of the time which Executive remains a GLT
member, to own common stock in CRH plc which is valued at 150% of the Executive’s Base Salary
on the Effective Date of this Agreement (the “Required Ownership Percentage”). Furthermore, if the
Executive’s Base Salary subsequently increases, the Executive shall be required to own common
stock in CRH plc equal to 150% of any such increased amount within five (5) years of the effective
date of the increase. The stock which shall be counted in measuring achievement of this requirement
shall include the following:
(i)shares owned outright or beneficially by the Executive (or his or her spouse
and other immediate family members who are dependents);
(i)shares which the Executive does not hold but which (a) have vested and are
being beneficially held for Executive under the Company’s Performance
Share Plan or an annual bonus plan, or (b) have not vested and are held in the
Executive’s name under a Company annual bonus plan, or any other restricted
share plan other than the Performance Share Plan in existence from time to
time; provided, however, in either case these shares shall be counted on a net-
of-taxes basis, which is determined in accordance with the Group’s tax
policies.
Annually, all shares held by the Executive or otherwise counted as being includable in
meeting the Required Ownership Percentage, shall, each December 31, be reported by the Executive
and valued by the Company for the purpose of assessing progress and achievement of the Required
Ownership Percentage, and the value shall be the higher of (i) the prevailing US Dollar equivalent of
the share price on the London Stock Exchange on such December 31 or (ii) the prevailing US Dollar
equivalent of the share price on the London Stock Exchange on the date of purchase or vesting, as
the case may be.
The Remuneration Committee of CRH plc shall be responsible for the administration of this
policy and shall determine the appropriate means of enforcing its provisions which may include the
withholding of shares by CRH plc or considering the Executive in breach of his obligations under
this Employment Agreement. Should the Executive breach this requirement of the Employment
Agreement as a result of an unexpected and precipitous decrease in CRH share price, the Executive
shall remedy the breach as soon as reasonably possible. The Remuneration Committee shall have the
discretion to determine, in consultation with the Executive, a reasonable time period in which the
Executive must remedy said breach.
4.Termination and Notice. This Employment Agreement and the Executive’s employment
may be terminated as follows:
(a)Resignation by the Executive.
(i)Notice: The Executive shall provide the Company with six months of prior
notice (“Executive Prior Notice Period”) before ending his employment with
the Company. During this notice period, the Company may place Executive
on Garden Leave, as defined in Section 5 below. The Company may, at its
sole discretion and at any time during the Executive Prior Notice period,
waive the remainder of the unexpired notice period (and any period of Garden
Leave that may be remaining if applicable), and, in that case, the Company
may, at its sole discretion, pay Executive an amount equal to his Base Salary
for the remainder of the applicable Executive Prior Notice Period (a
“Company Notice Buyout”) in exchange for Executive signing and not
revoking a Separation Agreement, as defined below. Whether or not
Executive remains employed for the full Executive Prior Notice Period,
Executive shall be entitled to receive the following upon termination of
employment:
1.Payout of any accrued but unused vacation time, and
2.Reimbursement for unreimbursed business expenses properly accrued
by the Executive, which shall be subject to and paid in accordance
with the Company’s expense reimbursement policy.
(ii)Bonus Payment: Whether or not Executive remains employed for the full
Executive Prior Notice Period, Executive shall receive a pro-rated Target
Bonus, as determined by the Company, which payment shall be made in a
lump sum at the time performance bonuses are regularly paid to similarly
situated employees of the Company. Such pro-rated Target Bonus shall be
determined as a percentage of the calendar year that the Executive was
employed by Company or would have been employed by Company if he had
been employed until the end of the Executive Prior Notice Period. For the
avoidance of doubt, regardless of the date of notice, in no case shall the
Executive receive both a pro-rated Target Bonus under this Section and a
discretionary performance bonus under 2(b) for the same overlapping time
period.
(iii)Severance Payment: If Executive resigns in compliance with this Section 4(a),
upon termination of employment the Company shall provide Executive a
Severance Payment as defined and under the terms and conditions below:
1.Fifty-two (52) weeks of pay at Executive’s Base Salary in effect as of
the date of termination, less the number of weeks Executive was
placed on Garden Leave and/or less the amount of weeks Executive
was paid as a Company Notice Buyout, plus
2.A pro-rated Target Bonus determined by the number of weeks of
severance pay received by the Executive as a percentage of the
applicable calendar bonus year, plus
3.A lump sum amount equal to the cost of Executive’s Consolidated
Omnibus Budget Reconciliation Act (“COBRA”) health insurance
premium for the same number of weeks as described in 4(a)(iii)(A)
(the “COBRA Payment”). The COBRA Payment shall be grossed up
to account for taxes.
4.The payments in (iii)(A), (iii)(B) and (iii)(C) shall collectively be
referred to herein as the “Severance Payment”.
5.For the avoidance of doubt, in no case shall the total amount received
during Garden Leave, as a Company Notice Buyout, and/or as
Severance Payment ever in the aggregate equate to greater than fifty-
two weeks of pay at the Executive’s Base Salary in effect as of the
date of termination, plus his Target Bonus for the applicable period,
plus the COBRA Payment.
6.Any payment to Executive under this section 4, including but not
limited to the Company Notice Buyout, the Severance Payment and/or
the pro-rated Target Bonus, is conditioned upon Executive signing and
not revoking a Separation Agreement, in the form typically used by the
Company, releasing all claims against the Company and agreeing not
to contest the continuing effect and enforceability of the Restrictive
Covenants (the “Separation Agreement”). The Separation Agreement
shall be substantially in the form of the template attached hereto as
Exhibit B, with appropriate modifications and updates as determined
by the Company.
7.Subject to all other terms of this Agreement, the Severance Payment
and, where applicable, the Company Notice Buyout payment shall be
paid in substantially equal monthly installments, the first of which
would occur within 15 days after the effective execution date of the
Separation Agreement and the last of which would occur no later than
365 days after the effective execution date of the Separation
Agreement.
▇.▇▇ the time of his resignation, should the Executive be the subject of
an ongoing internal or external investigation into any conduct by
Executive which would constitute Cause (as defined below), then these
Sections 4(a)(ii) and 4(a)(iii) shall be temporarily null and void,
Company may postpone a final decision on Executive’s resignation
under this Section until conclusion of the investigation, and Executive
shall be entitled to no Bonus Payment or Severance Payment of any
kind until the investigation is resolved, which conclusion shall be
made with reasonable timeliness. At conclusion of the investigation,
should Company find Cause to terminate Executive, Executive’s
resignation shall be treated as a Termination for Cause as described
below. Should the investigation fail to conclude that there was Cause
to terminate the Executive, Executive shall be entitled to payout of the
benefits described in this Section 4(a).
(b)Without Cause by Company. The Company may terminate the Executive’s
employment without Cause (as defined below) subject to the following requirements:
(i)Notice: The Company shall provide the Executive with six months of prior
notice (“Company Prior Notice Period”). The Company may, at its sole
discretion, and at any time during the Company Prior Notice Period, place the
Executive on Garden Leave, and/or, in lieu of placing the Executive on
Garden Leave, pay the Executive an amount equal to his Base Salary for the
remainder of the Company Prior Notice Period (provide a “Company Notice
Buyout”). Whether or not Executive remains employed for the full Company
Prior Notice Period, Executive shall be entitled to receive the following upon
termination of employment:
1.Payout of any accrued but unused vacation time, and
2.Reimbursement for unreimbursed business expenses properly accrued
by the Executive, which shall be subject to and paid in accordance
with the Company’s expense reimbursement policy.
(ii)Bonus Payment: Whether or not Executive remains employed for the full
Company Prior Notice Period, Executive shall receive a pro-rated Target
Bonus, as determined by the Company, which payment shall be made in a
lump sum at the time performance bonuses are regularly paid to similarly
situated employees of the Company. Such pro-rated Target Bonus shall be
determined as a percentage of the calendar year that the Executive was
employed by the Company or would have been employed by the Company if
he had been employed until the end of the Company Prior Notice Period. For
the avoidance of doubt, regardless of the date of notice, in no case shall the
Executive receive both a pro-rated Target Bonus under this Section and a
discretionary performance bonus under 2(b) for the same overlapping time
period.
(iii)Severance Payment: The Company shall provide Executive a Severance
Payment as defined and subject to the terms and conditions in Section
4(a)(iii).
(c)Cause. The Company may terminate the Executive’s employment hereunder for
Cause. For the purpose of this Employment Agreement, the Company shall have
“Cause” to terminate the Executive’s employment if the Executive has engaged in
any of the following: (i) the Executive has breached a material policy, procedure or
rule of the Company, including but not limited to the CRH Americas Code of
Conduct, which may be altered or amended from time to time, and other obligations
under this Employment Agreement, which breach, if deemed curable by the
Company, remains uncured to the reasonable satisfaction of the Company for thirty
(30) calendar days after the Executive receives written notice of the breach from the
Company; (ii) the Executive has committed gross negligence or willful failure to
perform substantially and satisfactorily his duties under this Employment Agreement;
(iii) the Executive has engaged in an act of fraud, dishonesty or fraudulent activity,
misappropriation, embezzlement, theft, bribery, forgery or similar conduct; (iv) the
Executive is indicted for, convicted of or pleads guilty or nolo contendere to a crime
that constitutes a felony (or state law equivalent) or a crime that constitutes a
misdemeanor involving moral turpitude; or (v) the Executive has engaged in any
other act or omission which, if it were known to the public, in the Company’s
reasonable judgment could have a significant adverse impact on the Company or the
Group, and their business or reputation. If the Executive’s employment shall be
terminated by the Company for Cause, such termination shall be effective
immediately, and the Executive shall receive only Base Salary up to and including the
termination date. “Cause” shall not be construed as including conduct described in
Section 9 (b) herein.
(d)Death. The Executive’s employment shall terminate upon his death. If the Executive’s
employment shall be terminated by reason of his death, Executive shall continue to
receive Base Salary through the end of the pay period in which the date of his death
occurred.
(e)Disability. If, as a result of the Executive’s incapacity due to physical or mental
illness, the Executive shall have been absent from his duties hereunder on a full-time
basis for ninety (90) consecutive calendar days, and within thirty (30) days after
written notice of termination is given (which may occur no earlier than thirty (30)
days before, but at any time after, the end of such ninety (90) day period), the
Executive shall not have returned to the performance of his duties hereunder on a full-time basis,
the Company may terminate this Employment Agreement. This Section 4(e) is subject to the
requirements of the Family and Medical Leave Act, the Americans with Disabilities Act, and all
other applicable law. Therefore, if required by law, the Executive may remain employed by the
Company on an at-will basis even if the Employment Agreement is terminated pursuant to this
Section 4(e).
(f)No Further Obligations after Payment. After all payments, if any, have been made to
the Executive pursuant to any of paragraphs (a) through (e) of this Section 4, the
Company shall have no further obligations to the Executive under this Employment
Agreement other than the provision of any of the Executive benefits required to be
continued under applicable law.
(g)Resignation of All Other Positions. Upon termination of the Executive’s employment
hereunder for any reason, the Executive shall be deemed to have resigned, effective
on the termination date, from all positions that the Executive holds as an officer or
member of the Board (or a committee thereof) of the Company or its affiliates, or any
of their subsidiaries, except as otherwise agreed to by the Parties in writing.
▇.▇▇▇▇▇▇ Leave. For the purpose of this Employment Agreement, “Garden Leave” refers to
that portion of any notice period during which Executive is relieved from Executive’s usual
employment duties but remains an employee of the Company in a consulting role. During
Garden Leave, the Executive shall not attend work, enter the Company’s premises, use
Company’s property, or have business-related contact with the Company’s customers,
suppliers, contractors, or employees of the Company, except as directed by the Company. If
requested by the Company, the Executive shall provide advice and information related to
prior work performed for the Company, report to work during Garden Leave at such time and
place as the Company may require, and cooperate fully with the Company in helping it
transition the Executive’s duties to others and retain valuable business relationships. During
Garden Leave, the Executive will: remain a loyal employee of the Company; avoid conflicts
of interest such as, but not limited to engaging in competition with the Company, assisting a
competitor, or actively pursuing the creation or development of a competitive business
enterprise; remain bound to all Company’s policies and the terms of this Employment
Agreement; and, continue to receive his Base Salary, benefits and other regular compensation
through the termination date, to the extent permitted by the plans and/or applicable law.
6.Section 409A. This Employment Agreement will be construed and administered to preserve
the exemption from Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) of payments that qualify as short-term deferrals pursuant to Treas. Reg.
§1.409A-1(b)(4) or that qualify for the two-times compensation separation pay exemption of
Treas. Reg. §1.409A-1(b)(9)(iii). With respect to other amounts that are subject to Code
Section 409A, it is intended, and this Agreement will be so construed, that any such amounts
payable under this Agreement and the Company’s and the Executive’s exercise of authority
or discretion hereunder shall comply with the provisions of Section 409A of the Code and the
regulations and other guidance promulgated thereunder (“Section 409A”) so as not to subject
Executive to the payment of interest and additional tax that may be imposed under Section
409A. As a result, in the event the Executive is a “specified employee” on the date of the
Executive’s termination of employment, any payment that is subject to Section 409A and that
is payable to the Executive in connection with Executive’s separation from service shall not
be paid until the first business day following the expiration of six months after the
Executive’s separation from service (if the Executive dies after the Executive’s separation
from service but before any payment has been made, such remaining payments that were or
could have been delayed will be paid to the Executive’s estate without regard to such six-
month delay). Solely as necessary to comply with Section 409A, “termination of
employment” or “employment termination” or similar terms shall have the same meaning as
“separation from service” under Section 409A(a)(2)(A)(i) of the Code. Each payment under
this Employment Agreement is a separate payment within the meaning of the final
regulations under Section 409A. Notwithstanding the above, the Executive agrees that the
Company has made no representation as to the tax treatment of the compensation provided
pursuant to this Employment Agreement and that the Executive is solely responsible for all
taxes due with respect to such compensation.
7.Duties Upon Termination. Upon the termination of the Executive’s employment for any
reason whatsoever, the Executive shall promptly return to the Company any Confidential
Information, Trade Secrets, and, whether or not constituting Confidential Information, any
technical data, performance information and reports, sales or marketing plans, documents, or
other records, rolodexes, and any manuals, drawings, tape recordings, computer programs,
disks, and any other physical or electronic representations of any other information relating
to the Company, any of its subsidiaries or affiliates. The Executive hereby acknowledges that
any and all of such documents, items, physical or electronic representations, and information
are, and shall remain, at all times the exclusive property of the Company.
8.Restrictive Covenants.
(a)Protectable Interests / Ancillary Agreement: The restrictions provided for in the other
Sections of this Agreement are not sufficient, standing alone, to protect the legitimate
business interests of the Company. In reliance upon Executive’s covenants in this
Agreement, and particularly those contained in this Section 8 (the “Restrictive
Covenants”), Company will employ Executive in a position of special trust and
confidence where Executive will be provided one or more of the following: (a)
Confidential Information related to Executive’s position, (b) special access to
suppliers, customers and other valuable business relationships of the Company, and/
or (c) specialized training. The Executive agrees that the foregoing will give
Executive an unfair competitive advantage if Executive’s activities are not restricted
as provided for in the Restrictive Covenants below. The Executive acknowledges the
Company would not enter into this Employment Agreement without the execution of
the Restrictive Covenants contained herein. The Executive acknowledges that his
employment with the Company, material advancement, receipt of access to
Confidential Information, and other consideration provided hereunder are sufficient
and valuable consideration for the execution of the restrictive covenants contained
herein.
(b)Definitions:
(i)“Business of the Company” means any line of business that the Company or
the Group is engaged in or preparing to engage in, relating to services and/or
products for the construction industry. Executive stipulates that the scope of
activity covered by this definition of Business of the Company is understood
by him, and that the Executive will be informed of changes in the Business of
the Company as they occur as a natural consequence of Executive’s position.
(ii)“Competitive Business(es)” means any business enterprise (firm, partnership,
joint venture, corporation and/or any other entity and/or person) that competes
with any part of the Business of the Company that the Executive has
involvement with or access to Confidential Information about in the Look
Back Period. It will be presumed that any business enterprise that develops,
manufactures, markets, distributes, provides and/or sells a Conflicting Product
in markets where the Company or the Group do business is a Competitive
Business.
(iii)“Confidential Information” means an item of information or compilation of
information, in any form (tangible or intangible), related to Company’s
business and of value to the Company that Executive first acquires or gains
access to during employment with the Company, that Company has not
authorized public disclosure of, and that is not readily available through
lawful and proper means to the public or persons outside Company who are
under no obligation to keep the information confidential. Confidential
Information includes, but it is not limited to: (1) finances and business plans;
(2) financial projections; (3) sales information relating to the Company’s
product roll-outs, including price, discounts, commissions, margins, targets,
and other related information; (4) customized software, marketing tools, and/
or supplies that the Executive has access to and/or will create; (5) the identity
of the Company’s Customers, and/or Customer Prospects; (6) any list(s) of the
Company’s Customers and/or Customer Prospects; (7) the account terms and
pricing of sales contracts between the Company and its Customers; (8) the
proposed account terms and pricing of sales contracts between the Company
and its Customer Prospects; (9) the techniques, methods, and strategies by
which the Company develops, manufactures, markets, distributes, and/or sells
any of its products; and (10) Trade Secrets. An item of Confidential
Information need not be marked “confidential” or otherwise labeled in a
particular way to qualify as Confidential Information; instead, the definition
provided above will control at all times. Due to its special value and utility as
a compilation, a confidential compilation of information by the Company will
remain protected as Confidential Information even if individual pieces of
information in it are public. Private disclosure of Confidential Information to
parties the Company is doing business with for business purposes shall not
cause the information to lose its protected status under this Agreement.
Confidential Information shall not include any data or information which has
been voluntarily disclosed to the public by the Company (except where such
public disclosure has been made by the Executive without authorization from
the Company) or that has been independently developed and disclosed by
others, or that has otherwise entered the public domain through lawful means.
“Trade Secrets” means Confidential Information which meets the additional
requirements of applicable law.
(iv)“Conflicting Product” means a product or service of another business
enterprise (not the Company or the Group) that is of the type conducted,
authorized, offered, or provided by the Company or the Group in the Look
Back Period and with respect to which Executive had involvement or access
to Confidential Information.
(v)“Covered Customers” means any customer (firm, partnership, corporation
and/or any other entity and/or person) that purchases or seeks to purchase
products or services from the Company or the Group with which Executive
has Material Contact. It will be presumed that Covered Customers includes
active prospective customers as of the date Executive’s employment ends with
whom Executive has Material Contact.
(vi)“Covered Vendors and Suppliers” means any supplier, distributor, broker, or
vendor that the Company or the Group relies upon in the ordinary course of
business and with which Executive has Material Contact.
(vii)“Group” means the Company and its parent companies, subsidiaries and
affiliates in the United States, Ireland or any other country as may be the case
from time to time, with respect to which Executive has some involvement or
access to Confidential Information.
(viii)“Look Back Period” refers to the last two (2) years of the Executive’s
employment with the Company or the Group, or any lesser period of such
employment if not employed for two years, inclusive of employment with a
predecessor entity of the Company or Group; or, if not enforceable, then such
lesser period as would be enforceable.
(ix)“Material Contact” means personal contact or material interaction with a
person or entity, or the supervision of contact or material interaction with a
person or entity, in the Look Back Period. Material interaction is presumed
present if Executive participated in or supervised communications with the
individual or entity, or received commissions, bonuses, or other beneficial
credit or attribution for business done with the person or entity, or was
provided Confidential Information about business done or proposed with the
person or entity, in the Look Back Period.
(x)“Material Individual” means any person who was employed by the Company
or the Group as a director or in a senior managerial position (which shall
generally be considered to be an individual appointed at job level 20 and
above), or any contractor or consultant of the Group of equivalent seniority.
(xi)“Territory” means the geographic territory where Executive is working at the
time of employment termination, which shall be understood to mean the state
Executive resides in and each additional state (and state equivalent) in the
United States and other countries where the Company or the Group market
their products or services or otherwise do business that Executive has some
involvement with or access to Confidential Information about in the Look
Back Period. Executive stipulates that the nature of the Company’s business is
national within the United States and also international in nature. Given the
nature of the Executive’s position with the Company, it will be presumed that
Executive’s involvement and Confidential Information access covers the
entire United States and each additional country where the Company and the
Group do business during the Look Back Period, and continue to do business
as of the date of enforcement. The Executive acknowledges and agrees that
due to the nature of his executive duties and the Confidential Information and/
or Trade Secrets involved in his role, the geographic area covered by the
Territory definition is reasonable.
(c)The Executive agrees his work for the Company brings him into close contact with
many Covered Customers, Covered Vendors and Suppliers, Trade Secrets, and
Confidential Information. The Executive further agrees the covenants in this Section
8 are reasonable as to the time and the scope of activity to be restrained and necessary
to protect the Company’s and the Group’s legitimate business interests and
relationships, Trade Secrets, and Confidential Information.
(d)The Executive further agrees that the harm caused by a violation of the Restrictive
Covenants would not only cause recoverable monetary damages but would also cause
irreparable harm to the Company and/or the Group which cannot be effectively
remedied through monetary damages, and can only be effectively addressed through
injunctive relief and special remedies as provided for in Section 10 below.
(e)Non-Competition. The Executive covenants and agrees that during employment and
for twelve (12) months after the Executive’s employment with the Company ends for
any reason, the Executive will not (as an employee, consultant, director, owner,
partner, or otherwise), directly or indirectly, anywhere in the Territory, on behalf of or
for the benefit of a Competitive Business: (i) perform duties or services that are the
same as, or similar in function or purpose to those Executive performed for the
Company in the Look Back Period, (ii) assist a Competitive Business in producing,
developing or improving a Conflicting Product, or (iii) accept competing business
from a Company customer, or otherwise knowingly interfere with the relationship
between the Company and one of its customers, vendors, or suppliers. If the
Executive is placed on Garden Leave, as provided in Section 5, the months he spends
on Garden Leave shall be offset against this 12-month restriction. Nothing in this
Employment Agreement shall be construed to prevent the Executive from having an
interest of less than one percent (1%) of the outstanding shares of capital stock of any
company which is traded on a nationally recognized stock exchange. The Executive
agrees and acknowledges that: (i) the provisions of this Section 8(e) are reasonable
and necessary for the protection of the Company and the Group; (ii) such provisions
contain reasonable limitations as to the time and the scope of activity to be restrained;
(iii) the consideration provided in this Employment Agreement is sufficient to
compensate the Executive for the restrictions contained in this Section 8(e),
regardless of how his employment is terminated and (iv) the provisions of this Section
8(e) will not unduly limit the Executive in finding or obtaining employment in a
capacity or at a level of compensation similar to that which the Executive has under
this Employment Agreement.
(f)Non-Solicitation of Employees. The Executive covenants and agrees that for twelve
(12) months after Executive’s employment with the Company ends for any reason he
will not, directly or indirectly, on behalf of (or for the benefit of) a Competitive
Business: (i) recruit, solicit, or induce, or attempt to recruit, solicit, or induce, any
Material Individual, to terminate their relationship with the Company or the Group, or
(ii) assist in hiring a Material Individual. If the Executive is placed on Garden Leave,
the months he spends on Garden Leave shall be offset against this 12-month
restriction.
(g)Non-Solicitation of Customers or Customer Prospects. The Executive covenants and
agrees that for twelve (12) months after the Executive’s employment with the
Company ends for any reason he will not, directly or indirectly, on behalf of (or for
the benefit of) a Competitive Business: (i) solicit or induce, or attempt to solicit or
induce, any Covered Customer for any business purpose that involves providing
products or services that are competitive with those provided by the Company or the
Group, or (ii) solicit a Covered Customer to terminate an existing or prospective
business relationship with the Company or the Group, or otherwise change such a
relationship to the detriment of the Company or the Group. If the Executive is placed
on Garden Leave, the months he spends on Garden Leave shall be offset against this
12-month restriction.
(h)Non-Solicitation of Vendors or Suppliers. The Executive covenants and agrees that
for twelve (12) months after the Executive’s employment with the Company ends for
any reason he will not, directly or indirectly, knowingly solicit or induce, or attempt
to solicit or induce, any Covered Vendor or Supplier to terminate their relationship
with the Company or the Group or change such relationship to the detriment of the
Company or the Group. If the Executive is placed on Garden Leave, the months he
spends on Garden Leave shall be offset against this 12-month restriction.
(i)Solicitation Understandings and Effect of Presumptions. For purposes of the non-
solicitation restrictions (Sections 8(f), (g), and (h)), it shall be presumed that “to
solicit” means to knowingly interact with a person or entity with the intent, purpose or
foreseeable result being to cause a particular responsive action, irrespective of which
party first initiates contact. The non-solicitation restrictions are understood to be
reasonably limited by geography to those locations and/or places of business where
the Material Individual, Covered Customer, and Covered Vendors and Suppliers are
located and available for solicitation. However, if any of the non-solicitation
restrictions require a different form of geographic limitation under applicable law to
be enforceable then such restriction shall be deemed limited to the Territory. The non-
solicitation restrictions are not intended to cover or prohibit general advertising that is
not targeted at the customers or employees of Company such as advertisements
directed to the general public or “help wanted” ads. A presumption provided for in
this Agreement may only be overcome through clear and convincing evidence, and
will not be applicable where it would make a provision of this Agreement to which it
applies unenforceable.
(j)Intellectual Property Rights.
For the purposes of this clause, “Intellectual Property” means patents, trademarks,
service marks, registered designs (including applications for and rights to apply for any of them),
inventions, innovations, improvements, developments, methods, ideas, concepts, unregistered design
rights, logos, trade or business names, copyrights, database rights, confidential information, know
how and any similar rights.
The Executive acknowledges that (i) it has been part of his normal duties to develop the
products and services of the Group; and (ii) because of the nature of his position he has a special
obligation to further the interests of the Group. All Intellectual Property which the Employee
develops or produces, alone or with others, in the course of his employment duties or outside such
duties but relating to the business of the Group in any manner whatsoever, either prior or after he
signs this Agreement, will be considered a "work made for hire" and shall be the sole and exclusive
property of the Company. If for any reason the results and proceeds of Executive’s services to the
Company are determined at any time not to be a "work made for hire," Executive hereby irrevocably
assigns, transfers and sets over, all of his right, title and interest in such Intellectual Property to the
Company, and the Company shall be entitled to obtain and hold in its own name all patents,
copyrights or other intellectual property rights with respect to such Intellectual Property. The
Executive appoints the Company, or its designee, as the Executive’s attorney- in-fact for purposes of
obtaining patents and copyrights which result from my work during his employment with the
Company and to perfect ownership in the Company or its assigns and successors in interest. The
Company will consider each disclosure submitted by the Executive. The election of whether or not
to file a patent application or a copyright registration application on such disclosure and the manner
of preparation and prosecution of any patent or copyright application or applications filed in the
United States of America or in foreign countries shall be wholly within the discretion of the
Company, and at its expense. The Executive shall disclose in writing to Company (or persons
designated by it) the existence and nature of any Intellectual Property and shall, during and after the
period of employment with the Company, and without further consideration from the Company, (i)
execute all documents requested by the Company for vesting in the Company and the entire right,
title and interest in and to the same, (ii) cooperate with the Company and execute all documents
requested by the Company for the filing of such applications for and the procuring of such patents,
trademarks, service marks or copyrights as the Company, in its sole discretion, may desire to
prosecute, and (iii) give the Company all assistance and cooperation it may reasonably require in
order to obtain, maintain, defend, enforce, and protect the Company's right therein and thereto
anywhere in the world. The Employee also hereby waives all moral rights in all Intellectual Property
of the Company or the Group, and to obtain protection and enforce the Company’s rights anywhere
in the world. The Executive also hereby waives all moral rights in all Intellectual Property which is
owned by the Company, or will be owned by the Company, further to this clause. The Executive will
not copy, disclose, or make use of any Intellectual Property belonging to the Company (whether or
not subject to this clause) except to the extent necessary for the proper performance of his duties.
Rights and obligations under this clause will continue after the termination of this Agreement in
respect of all intellectual Property arising during the employment. Any and all such Intellectual
Property, reduced to written, graphic, or other tangible form and any and all copies and
reproductions thereof shall be furnished to the Company upon request, and in any case, shall be
returned to the Company upon termination of the Executive’s employment with the Company.
Executive may not sell, reproduce, distribute, modify, display, publicly perform, or prepare
derivative works based on any content used by or created for the Company, by the Executive or any
other third party, in any way for public or commercial purposes without the Company’s prior written
consent.
The Executive warrants and agrees that all inventions, innovations, improvements,
developments, methods, designs, analyses, ideas, concepts, reports, software, and all similar or
related information which he made, invented, or conceived prior to entering the employ of the
Company, to which the Executive now claims title, and which are to be specifically excluded from
this Agreement, are completely described in Exhibit A attached.
▇.▇▇▇▇▇▇▇▇▇▇ of Confidential Information
(a)No Unauthorized Use or Disclosure. The Executive agrees not to engage in any use,
disclosure, copying or transfer of Confidential Information that is not authorized as
part of the Executive’s employment duties and undertaken in careful compliance with
all Company policies and directives for the handling of such information. The
Executive understands and accepts the duty to use reasonable care in maintaining the
confidentiality of Confidential Information, and agrees to report to the Company any
unauthorized use or disclosure that the Executive becomes aware of and to cooperate
with the Company in taking all reasonable and necessary steps to recover any
misappropriated Confidential Information. When the Executive’s employment ends,
Executive will return all records of Confidential Information to the Company without
retaining any copies thereof that he is not expressly authorized to retain in writing.
The Executive will not use his knowledge of Confidential Information to recreate
records of Confidential Information or otherwise reproduce Confidential Information
entrusted to him in confidence after his employment ends without Company
authorization. The foregoing obligations regarding Confidential Information will
apply to the Executive while employed with the Company or the Group and for as
▇▇▇▇ thereafter as the information at issue continues to qualify as Confidential
Information under the definition applied in this Agreement; provided, however, that if
a post-employment time limit on the use of Confidential Information is required in
order for this restriction to be enforceable, and only in such event, the restrictions on
use of Confidential Information that does not qualify as a Trade Secret shall expire
three (3) years after the Executive’s employment ends and all records of Confidential
Information in Executive’s possession and control have been returned to the
Company. No such time limitation will apply to Trade Secrets. A permitted disclosure
of Confidential Information under Section 9(b) below will not be considered an
unauthorized use or disclosure of Confidential Information for purposes of the
foregoing restrictions or any other section of this Agreement.
(b)Permitted Disclosure. Nothing herein shall be construed to prevent disclosure of
Confidential Information, Trade Secrets or Intellectual Property as may be required or
permitted by applicable law or regulation, or pursuant to the valid order of a court of
competent jurisdiction or an authorized government agency, provided that the
disclosure does not exceed the extent of disclosure required by such law, regulation or
order. The provisions in this Employment Agreement do not prohibit the Executive
from communicating with any governmental authority or making a report in good
faith and with a reasonable belief of any violations of law or regulation to a
governmental authority, or disclosing Confidential Information, including providing
documents, which the Executive has acquired through lawful means in the course of
employment to such governmental authority in connection with such communications
or report, or from filing, testifying or participating in a legal proceeding relating to
such violations, including making other disclosures protected or required by any
whistleblower law or regulation to the Securities and Exchange Commission, the
Department of Labor, or any other appropriate government authority; provided
expressly that to the extent that the Executive discloses any Confidential Information,
the Employee will honor the other confidentiality obligations in this Employment
Agreement and will only share such Confidential Information in accordance with this
section. The Executive is hereby notified that under the Defend Trade Secrets Act
(DTSA), (1) no individual will be held criminally or civilly liable under Federal or
State trade secret law for disclosure of a trade secret (as defined in the Economic
Espionage Act) that is: (A) made in confidence to a Federal, State, or local
government official, either directly or indirectly, or to an attorney, and made solely
for the purpose of reporting or investigating a suspected violation of law; or, (B)
made in a complaint or other document filed in a lawsuit or other proceeding, if such
filing is made under seal so that it is not made public; and, (2) an individual who
pursues a lawsuit for retaliation by an employer for reporting a suspected violation of
the law may disclose the trade secret to the attorney of the individual and use the
trade secret information in the court proceeding, if the individual files any document
containing the trade secret under seal, and does not disclose the trade secret, except as
permitted by court order.
10.Reliefs and Survival.
(a)Injunctive Relief. The Executive acknowledges that his breach of any covenant
contained in Sections 8 and 9 will result in irreparable injury to the Company and that
the remedy at law of such parties for such a breach will be inadequate. Accordingly,
the Executive agrees and consents that the Company, in addition to all other remedies
available to it at law and in equity, shall be entitled to seek and receive both
preliminary and permanent injunctions to prevent and/or halt a breach or threatened
breach by the Executive of any provision contained in Sections 8 and 9 with One
Thousand Dollars ($1,000.00) being the agreed-upon amount of bond (if any) that
need be posted to secure such relief. The Company shall be deemed the prevailing
party if it recovers any relief requested in a legal action to enforce this Agreement
irrespective of whether some of the relief requested is also denied or the contract must
be reformed to be enforced. In the event Executive violates the Material Individual
non-solicitation obligation (Section 8(f)) which causes (in whole or in part) the
Company or the Group to lose the services of a Material Individual before injunctive
relief to prevent such loss can be secured, Executive shall owe Company a sum equal
to one third of the Material Individual’s annual total compensation at his or her last
rate of pay with Company or the Group as liquidated damages. This sum shall be in
addition to, and not in lieu of injunctive relief to prevent further violations with
respect to other Material Individuals.
(b)Severability and Judicial Modification. Except where otherwise expressly provided,
the terms of this Agreement are severable. The covenants contained in Sections 8 and
9 shall be presumed to be reasonable and enforceable, and any reading causing
unenforceability shall yield to a construction permitting enforcement. In the event an
arbitrator or court of competent jurisdiction should determine not to enforce a
covenant as written due to overbreadth, the parties specifically agree that said
covenant shall be modified and enforced to the extent reasonable, whether said
modifications are in time, territory, or scope of prohibited activities. If any single
covenant or clause in this Employment Agreement shall be found unenforceable and
not subject to modification to allow enforceability, it shall be severed and the
remaining covenants and clauses enforced in accordance with the tenor of the
Employment Agreement.
(c)Survival. The covenants and agreements made by the Executive in Sections 8 and 9
will survive the termination of the Executive’s employment and the termination of
this Employment Agreement, a change in Executive’s position or terms and
conditions of employment, and any claim asserted by Executive against the Company
arising from this Agreement or otherwise.
11.Indemnification and Insurance. The Company agrees that during the course of Executive’s
employment, it will maintain Directors and Officers insurance or appropriate self-insurance
covering Executive for decisions made and actions taken by Executive that are consistent
with Company policy and taken in the course of Executive’s employment. The Company
shall provide to Executive such coverage and limits as are generally provided by FTSE 100
companies of similar size and geographic presence to their non-Board of Director executives.
12.Entire Agreement; Modification; Waiver. This Employment Agreement constitutes the
entire agreement between the parties pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and understandings of
the parties concerning its subject matter. No supplement, modification, or amendment of this
Employment Agreement shall be binding unless executed in writing by all parties hereto. No
waiver of any of the provisions of this Employment Agreement will be deemed, or will
constitute, a waiver of any other provision, whether or not similar, nor will any waiver
constitute a continuing waiver. No waiver will be binding unless executed in writing by the
party making the waiver.
13.Successors and Assigns; Assignment. This Employment Agreement shall be binding on, and
inure to the benefit of, the parties hereto and their respective heirs, executors, legal
representatives, successors, and assigns; provided, however, that this Employment Agreement is
intended to be personal to the Executive and the rights and obligations of the Executive
hereunder may not be assigned or transferred by him/her. It is expressly understood that CRH,
plc shall be a beneficiary of this Agreement, and entitled to enforce it as needed to protect the
interests of itself and its subsidiaries and affiliates. Executive understands and agrees that this
Agreement may be assigned by the Company, and that the assignee shall be entitled to enforce it
against Executive. Should the Company assign this Employment Agreement to any affiliate or
other entity associated with the Company, this Employment Agreement shall be binding on such
assignee and any references in this Employment Agreement to the “Company” shall be
deemed to be a reference to such assignee.
14.Notice. Any notice or other communication required or permitted under this Employment
Agreement by either party hereto to the other shall be in writing, and shall be deemed
effective upon (a) personal delivery, if delivered by hand, (b) three days after the date of
deposit in the mails, postage prepaid, if mailed by certified or registered mail, or (c) the next
business day, if sent by a prepaid overnight courier service, and in each case addressed as
follows:
If to the Executive: ▇▇▇▇▇▇ ▇▇▇▇▇▇
[*****]
[*****]
If to the Company: CRH Americas, Inc.
ATTN: General Counsel
[*****]
[*****]
[*****]
Either party may change the address or addresses to which notices are to be sent by giving notice of
such change of address in the manner provided by this section.
15.Counterparts. This Employment Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the
same document. This Employment Agreement may be executed by facsimile signature and a
facsimile signature shall constitute an original signature for all purposes. Each undersigned
further agrees that electronic signatures, whether digital or encrypted, of the parties hereto are
intended to have the same force and effect as manual signatures. As used in the previous
sentence, the term “electronic signatures” means any electronic sound, symbol or process
attached to or logically associated with this Agreement and executed and adopted by a party
with the intent to sign such Agreement, including, but not limited to, e- mail electronic
signatures executed through DocuSign®.
16.Severability of Provisions. The invalidity or unenforceability of any particular provision of
this Employment Agreement shall not affect the other provisions hereof, and this
Employment Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
17.Governing Law and Jurisdiction. This Employment Agreement is executed and delivered
in, and shall be governed by, enforced and interpreted in accordance with the laws of the
State of Texas, without regard to its conflict of laws principles. Any dispute, claim or cause
of action arising out of, or related to, this Agreement shall be commenced only in a federal or
state court in the State of Georgia, County of Dekalb, and the parties hereby submit to the
exclusive jurisdiction of such courts and waive any claim of an inconvenient forum.
18.Waiver of Jury Trial. The Parties agree to waive any right to a trial by jury regarding any
dispute, claim or cause of action arising out of, concerning, or related to, the Executive’s
employment, his separation from employment, or this Employment Agreement.
▇▇.▇▇▇▇▇▇▇▇▇▇▇▇. In construing this Employment Agreement, whenever appropriate, the
singular tense shall also be deemed to mean the plural, and vice versa, and the captions
contained in this Employment Agreement shall be ignored.
20.Legally Binding Obligation; Legal Counsel. The Executive acknowledges that he has had
an opportunity to read this Employment Agreement, raise questions about its terms, and seek
advice of legal counsel if desired. The Executive understands that this Employment
Agreement is a legally binding contractual obligation, which includes restrictive covenants,
and enters into it willingly, knowingly and voluntarily.
IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
effective as of the Effective Date stated above.
CRH AMERICAS, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT A
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
[Intentionally Omitted]
EXHIBIT B
SEPARATION AGREEMENT, RELEASE AND WAIVER
[Intentionally Omitted]