Exhibit 10.157
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 15th day of September
2001, by and between Meadow Valley Corporation, a Nevada corporation (the
"Employer"), and Xxxxxx 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 Area Manager - Utah Area for the
Employer. Employee shall perform all duties as outlined herein and as may be
assigned by the Employer and shall devote full time, attention and loyalty to
the affairs of the Employer. The duties of the Employee shall specifically be:
A) Complete responsibility for the operational and financial aspects of
the Utah Area, including profit and loss responsibility.
B) To select, hire and maintain qualified management personnel and to
administer and review annually the performance of each person within his
direct supervision and adjust compensation in accordance with Company
guidelines and subject to the prior approval of the Corporate Chief
Operating Officer.
C) To oversee the selection, preparation and submission of construction
contract estimates and materials sales quotes and proposals and to
determine margins in order to maximize Company profitability.
D) To oversee the preparation of annual or periodic revisions of
project and material plant budgets for submissions to the Corporate Chief
Operating Officer for approval, to insure that cost controls are in place
and utilized to accurately track production and delivery costs, to monitor
customer and project schedules to insure timely and accurate delivery of
products and to provide decision-making and problem-solving assistance in
all aspects of the Utah Area. To oversee the negotiation, preparation and
execution of all subcontracts, purchase agreements, credit policies and
other agreements within the Utah Area and as may be required by the
Corporate Chief Administrative Officer.
E) To maintain and promote relationships with customers and owners with
whom the Company contracts.
F) To insure that periodic reporting such as monthly production
reports, project Fcosts and ECAC's and other cost and revenue reports as
required by management are prepared and submitted correctly and on a timely
basis.
G) Prepares annual operating budgets and capital expenditure budgets
and periodic forecasts as required.
H) Resolve complaints and/or claims relating to the Utah Area, or to
provide assistance in preparing for and presenting the Company's position
in claims hearings.
I) To provide input and counsel to strategic and business plans for the
entire Company.
J) To assist in any other projects or duties as may be assigned by the
Chief Operating Officer.
K) To see that all Company policies are enforced and adhered to.
2. TERM. Subject to the provisions of termination provided in paragraph 11,
the initial term of this Agreement shall commence on September 15, ------- 2001
and terminate on September 15, 2006. This Agreement may be extended by the
mutual written agreement of the Employee and the Employer.
3. COMPENSATION. Employee shall receive a base salary of Ninety-four
thousand dollars ($94,000.00) per year, payable in accordance with the regular
payroll practices of Employer, and subject to applicable deductions of
withholding taxes and other customary employment taxes. The Chief Operating
Officer shall review Employee's salary at a minimum annually and may adjust
Employee's salary upward to recognize improvement, achievement or expansion of
Employee's responsibilities subject to approval of the Board Compensation
Committee. Employee shall participate in cash incentive plans as currently
existing or as amended or adopted in the future by the Compensation Committee of
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 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 Employee's
dependents, a comprehensive major medical, health, and dental insurance program
comparable to the programs normally provided by other employers in the same
industry and marketplace, and the Employer shall pay the cost of the Employee's
portion of the premium. Insurance coverage may be subject to pre-existing
condition limitations. Should, at any time, the Employee opt to maintain a
personal major medical and health insurance policy for himself and for his
dependents and not participate in the Employer's group plan, then Employer shall
reimburse Employee the lesser of the amount Employee pays for said personal
policy, as evidenced by adequate documentation, or what Employer would otherwise
be paying were Employee participating in the Employer's group plan. Should the
Employee opt to maintain his own coverage, neither he nor his dependents shall
be precluded from later participating in the Employer's group plan so long as
they otherwise qualify for enrollment.
At Employer's cost and subject to verification of insurability, Employer
will maintain a life insurance policy covering Employee, with at least $250,000
of death benefits being payable, in a manner that is free of income tax, to
Employee's estate or other beneficiaries designated by Employee.
Employer agrees to provide Employee with an automobile for business-related
use. In additional to the cost of the vehicle itself, Employer shall pay,
directly or by
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reimbursement to Employee, for all maintenance, fuel, repairs, insurance,
operating and other costs incidental thereto.
Employer shall pay for, or reimburse Employee for, dues for his membership
in industry related associations perceived as beneficial to Employer and as
approved by the Chief Executive Officer of the Chief Operating Officer.
So long as it is within the guidelines of the respective plan, Employee
shall be given the opportunity to participate in the Employer's 401(k).
6. MOVING EXPENSES AND SUBSISTENCE. Employer shall pay for all moving costs
of reasonable and normal household effects from Las Vegas to a single location
in Utah as designated by the Employee, including up to six months storage of
such household effects in Las Vegas or Utah, whichever is more economical and
practical, while Employee and his spouse obtain a permanent residence in Utah.
Employee shall obtain two moving and storage quotes from reputable movers and
Employer shall pay the most competitive rate.
Employer shall provide Employee a subsistence allowance of One Thousand
Dollars ($1,000.00) per month for the lesser of three months from September 1,
2001 or until such time as the relocation of the Employee and his spouse to Utah
is complete.
7. HOLIDAYS AND VACATION.
A) Employee shall be paid for the following seven (7) holidays: New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
the day after Thanksgiving, and Christmas Day and all other holidays for
Employees of the Company as approved by the Chief Executive Officer or
Board of Directors.
B) Employee is entitled to three weeks vacation 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. All other conditions with respect to vacations shall be
consistent with the Company's vacation and holiday policy.
8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such reasonable
time as is necessary or is deemed reasonably necessary by the Employer to carry
out all required duties and will devote full time to the Employer during normal
business hours. The Employee shall at all times faithfully, with diligence and
to the Employee's best good faith ability, experience and talents, perform all
the duties that may be required pursuant to the express terms hereof to the
reasonable satisfaction of the Employer, in accordance with customary
professional standards.
9. WORKING FACILITIES. The Employee shall be furnished with all facilities
and services suitable to Employee's position and adequate for the performance of
Employee's duties.
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10. EXPENSES. The Employee is authorized to incur reasonable expenses for
promoting business of the Employer, including expenses for entertainment,
travel, and similar items. The Employer shall reimburse the Employee for all
such expenses on the presentation by the Employee of itemized and adequately
documented accounts of such expenditures.
11. TERMINATION. This Employment Agreement may be terminated under the
following circumstances:
A) WITHOUT CAUSE. Employer may terminate this Agreement at any time
upon thirty (30) days written notice to Employee, but Employer shall be
obligated to pay to Employee compensation in a lump sum for the balance of
the term of this Agreement within 30 days of termination, unless Employee
agrees to other payment terms.
B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may
terminate this Agreement at any time upon thirty (30) days written notice
to Employer and Employer shall be obligated, in that event, to pay Employee
compensation up to the date of the termination only. All accrued but unpaid
compensation shall be paid in cash within 30 days of termination, unless
Employee agrees to other payment terms.
C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may
terminate this Agreement for reasonable cause upon thirty (30) days written
notice to the Employee and Employer shall be obligated, in that event, to
pay Employee compensation up to the date of termination only. For purposes
hereof, "cause" shall be defined as meaning (i) such conduct by the
Employee which constitutes material breach of this Agreement which is not
cured within ninety (90) days of written notice to the Employee of said
alleged breach or (ii) a material failure to competently perform Employee's
duties as stated in paragraph 1 in accordance with applicable professional
standards as stated in paragraphs 1 and 8 hereof provided that Employer has
previously given Employee written notice and a reasonable opportunity to
remedy such failure and such failure has materially adverse effect on the
business or financial condition of Employer or (iii) material breach of
Employee's fiduciary duty and such breach has a material adverse effect on
the business or financial condition of Employer or (iv) egregiously
improper or illegal conduct of the Employee which, in the Employer' sole
discretion, has a material adverse effect on Employer.
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D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may terminate
this Agreement for cause. In such event, Employer shall be obligated to pay
Employee compensation in lump sum for the balance of the term of this
Agreement within 30 days of termination or as Employee shall agree, plus
damages suffered and expenses incurred by reason thereof. For this purpose
"cause" shall mean (i) a material breach of this Agreement by Employer or
(ii) failure of Employer to pay any amount owed Employee hereunder at the
time and in the amount due or (iii) failure of Employer to follow
applicable law or (iv) egregiously improper conduct with respect to dealing
with Employee or in a manner which brings discredit to Employee.
12. CONFIDENTIALITY. Employee agrees not to disclose any confidential,
proprietary competitively sensitive information to persons who are not
employees, directors, lenders, bonding agents, insurance companies or advisors
of the Employer, except as required by law, without prior consent of the
Employer; provided however, any disclosure involving this paragraph shall not
result in a breach of this Agreement unless the disclosure has a materially
adverse effect on the Employer.
13. NOTICES. All notices, demands, and communications given under this
Agreement ("Notice") shall be in writing and delivered personally or sent by
registered or certified mail, return receipt requested, in the United States
mail, postage prepaid, addressed as follows:
If to Employer:
Meadow Valley Corporation
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
If to Employee:
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or at such other address as a party may from time to time designate by Notice
hereunder. Notice shall be effective upon delivery in person, or if mailed, at
midnight on the third business day after the date of mailing.
14. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise transfer
this Agreement or any of its rights or obligations hereunder without the prior
written consent to such assignment or transfer by the other party hereto; and
all the provisions of this Agreement shall be binding upon the respective
employees, successors, heirs and assigns of the parties; provided, however, the
benefits payable to Employee hereunder in the event of disability or death or
incapacity are payable to Employee's spouse or personal representative.
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15. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement
and the representations, warranties, covenants and other agreements (however
characterized or described) by both parties and contained herein or made
pursuant to the provisions hereof shall survive the execution and delivery of
this Agreement.
16. FURTHER INSTRUMENTS. The parties shall execute and deliver any and all
such other instruments in reasonable mutually acceptable form and substance and
shall take any and all such other actions as may be reasonably necessary to
carry the intent of the Agreement into full force and effect.
17. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, governmental authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory of
jurisdiction in which made.
18. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
19. GENERAL PROVISIONS. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the state of Arizona. Except as
otherwise expressly stated herein, time is of the essence in performing under
this Agreement. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter of this Agreement as it relates to the parties'
duties and obligations from and after September 15, 2001, and this Agreement may
not be modified or amended or any term or provision hereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. The headings of this Agreement are
for convenience in reference only and shall not limit or otherwise affect the
meaning thereof. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
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20. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term
of this Agreement, if the Employer is involved in a merger, consolidation or
other business combination in which the Employer is not the surviving and
controlling entity and the Employee is required to relocate outside the State of
Utah in a manner not mutually acceptable to Employee and Employer, then Employee
shall have the following rights:
A) To terminate this Agreement with 30 days prior notice, in which
event Employer shall pay Employee an amount equal to one year's salary at
the Employee's current rate and
B) All options granted shall, to the extent not specifically prohibited
by the stock option plan then in effect, vest immediately and be
exercisable within one year of the termination notice provided in A above.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Meadow Valley Corporation
/s/ XXXXXX X. XXXXXX By /s/ XXXXXXX X. XXXXXX
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Employee President/CEO
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