Exhibit - 10.201
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 15th day of August
2002, by and between Meadow Valley Corporation, a Nevada corporation (the
"Employer" or "Company"), and Nicole R. Smith (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 Controller 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 be responsible to the Principal Accounting Officer for all
delegated accounting, cash flow, and financial reporting functions of the
Company.
B) To assist in preparing annual operating plans, capital
improvement programs, budgets and annual updates to strategic plans.
C) To manage and supervise the staff and supervise all
clerical-related functions.
D) To manage accounts with all banking and other financial
institutions.
E) To represent, along with the Principal Accounting Officer, the
Employer in all matters pertaining to the financial or operational audits.
F) To serve as a source of analysis for management and the Board of
Directors.
G) To assist in all administrative functions, as required by the
Principal Accounting Officer or the Chief Administrative Officer, in the
areas of insurance, bonding, legal, etc.
H) To perform or cause to be performed any other reasonable duties
specifically assigned by the CEO, Principal Accounting Officer or Chief
Administrative Officer and consistent with customary professionalism.
I) To provide input and counsel to strategic and business plans for
the entire Company.
K) To assist management in seeing that all Company policies are
enforced and adhered to.
2. TERM. Subject to the provisions of termination provided in paragraph
11, the initial term of this Agreement shall commence on August 15, 2002 and
terminate on August 15, 2005. This Agreement may be extended by the mutual
written agreement of the Employee and the Employer.
3. COMPENSATION. Employee shall receive a base salary of eighty thousand
dollars ($80,000.00) 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 Executive 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, at the
election of the Employee, to the Employee's dependents, a comprehensive major
medical, health, and dental insurance program comparable to the programs
normally provided by other employers in the same industry and marketplace, and
the Employer shall pay the cost of the Employee's portion of the premium.
Insurance coverage may be subject to pre-existing condition limitations. Should,
at any time, the Employee opt to maintain a personal major medical and health
insurance policy for himself and for his dependents and not participate in the
Employer's group plan, then Employer shall reimburse Employee the lesser of the
amount Employee pays for said personal policy, as evidenced by adequate
documentation, or what Employer would otherwise be paying were Employee
participating in the Employer's group plan. Should the Employee opt to maintain
his own coverage, neither he nor his dependents shall be precluded from later
participating in the Employer's group plan so long as they otherwise qualify for
enrollment.
At Employer's cost and subject to verification of insurability, Employer
will maintain a life insurance policy covering Employee, with at least $250,000
of death benefits being payable, in a manner that is free of income tax, to
Employee's estate or other beneficiaries designated by Employee.
Employer agrees to provide Employee with an automobile for
business-related use. In addition to the cost of the vehicle itself, Employer
shall pay, directly or by reimbursement to Employee, for all maintenance, fuel,
repairs, insurance, operating and other costs incidental thereto.
Employer shall pay for, or reimburse Employee for, dues for his membership
in industry related associations perceived as beneficial to Employer and as
approved by the Chief Executive Officer or the Chief Operating Officer.
So long as it is within the guidelines of the respective plan, Employee
shall be given the opportunity to participate in Employer's 401(k).
6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employee is required
to relocate during the term of this Agreement, Employer shall pay for all moving
costs of reasonable and normal household effects, including up to six
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months storage of such household effects, while Employee and his/her spouse
obtain a permanent residence. Employee shall obtain two moving and storage
quotes from reputable movers and Employer shall pay the most competitive rate.
Employer shall provide Employee a subsistence allowance of One Thousand
Dollars ($1,000.00) per month for the lesser of three months from the date of
the new geographical assignment or until such time as the relocation of the
Employee and his/her spouse is complete.
7. HOLIDAYS AND VACATION.
A) Employee shall be paid for the following seven (7) holidays: New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
and the day after Thanksgiving, and Christmas Day and all other holidays
for Employees of the Company as approved by the Chief Executive Officer or
Board of Directors.
B) Employee is entitled to three weeks vacation each year. Unused
vacation in any given year shall accrue to following years up to a maximum
of eight weeks in any one year. All other conditions with respect to
vacations shall be consistent with the Company's vacation and holiday
policy.
8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such reasonable
time as is necessary or is deemed reasonably necessary by the Employer to carry
out all required duties and will devote full time to the Employer during normal
business hours. The Employee shall at all times faithfully, with diligence and
to the Employee's best good faith ability, experience and talents, perform all
the duties that may be required pursuant to the express terms hereof to the
reasonable satisfaction of the Employer, in accordance with customary
professional standards.
9. WORKING FACILITIES. The Employee shall be furnished with all facilities
and services suitable to Employee's position and adequate for the performance of
Employee's duties.
10. EXPENSES. The Employee is authorized to incur reasonable expenses for
promoting business of the Employer, including expenses for entertainment, travel
and similar items. The Employer shall reimburse the Employee for all such
expenses on the presentation by the Employee of itemized and adequately
documented accounts of such expenditures.
11. TERMINATION. This Employment Agreement may be terminated under the
following circumstances:
A) WITHOUT CAUSE. Employer may terminate this Agreement at any time
upon thirty (30) days written notice to Employee, but Employer shall be
obligated to pay to Employee compensation in the amount of one year's
salary 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)
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days written notice to Employer and Employer shall be obligated, in that
event, to pay Employee compensation up to the date of the termination
only. All accrued but unpaid compensation shall be paid in cash within 30
days of termination, unless Employee agrees to other payment terms.
C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may
terminate this Agreement for reasonable cause upon thirty (30) days
written notice to the Employee and Employer shall be obligated, in that
event, to pay Employee compensation up to the date of termination only.
For purposes hereof, "cause" shall be defined as meaning (i) such conduct
by the Employee which constitutes material breach of this Agreement which
is not cured within ninety (90) days of written notice to the Employee of
said alleged breach or (ii) a material failure to competently perform
Employee's duties as stated in paragraph 1 in accordance with applicable
professional standards as stated in paragraphs 1 and 8 hereof provided
that Employer has previously given Employee written notice and a
reasonable opportunity to remedy such failure and such failure has a
materially adverse effect on the business or financial condition of
Employer or (iii) material breach of Employee's fiduciary duty and such
breach has a material adverse effect on the business or financial
condition of Employer or (iv) egregiously improper or illegal conduct of
the Employee which, in the Employer's sole discretion, has a material
adverse affect on Employer.
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.
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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
P.O. Box 60726
Phoenix, AZ 85082-0726
If to Employee:
Nicole R. Smith
26834 North 41st Street
Cave Creek, Arizona 85331
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.
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.
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17. SEVERABILITY. If any provision of this Agreement shall be held,
declared or pronounced void, voidable, invalid, unenforceable or inoperative for
any reason by any court of competent jurisdiction, governmental authority or
otherwise, such holding, declaration or pronouncement shall not affect adversely
any other provision of this Agreement, which shall otherwise remain in full
force and effect and be enforced in accordance with its terms, and the effect of
such holding, declaration or pronouncement shall be limited to the territory of
jurisdiction in which made.
18. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the exercise
of any right or remedy arising from a breach of this Agreement shall operate as
a waiver of any subsequent right or remedy arising from a subsequent breach of
this Agreement. The consent of any party where required hereunder to any act or
occurrence shall not be deemed to be a consent to any other act or occurrence.
19. GENERAL PROVISIONS. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the state of Arizona. Except as
otherwise expressly stated herein, time is of the essence in performing under
this Agreement. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter of this Agreement as it relates to the parties'
duties and obligations from and after July 22, 2002, and this Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. The headings of this Agreement are
for convenience in reference only and shall not limit or otherwise affect the
meaning thereof. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute one and the same instrument.
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20. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term
of this Agreement, if the Employer or the Parent is involved in a merger,
consolidation or other business combination in which the Employer is not the
surviving and controlling entity and the Employee is required to relocate
outside out of the State in which the Employee resides at the time of the
merger, consolidation or other business combination in a manner not mutually
acceptable to Employee and Employer, then Employee shall have the following
rights:
A) To terminate this Agreement with 30 days prior notice, in which event
Employer shall pay Employee an amount equal to one year's salary at the
Employee's current rate and
B) All options granted shall, to the extent not specifically prohibited by
the stock option plan then in effect, vest immediately and be exercisable within
one year of the termination notice provided in A above.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
Meadow Valley Corporation
/s/ Nicole R. Smith By /s/ Bradley E. Larson
- ------------------- ------------------------
Employee President/CEO
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