Joseph P. Harper, Sr. Employment Agreement
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STERLING
CONSTRUCTION COMPANY, INC.
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EXHIBIT
10.2
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement
THIS
EMPLOYMENT AGREEMENT (this "Agreement") is made to be
effective as of July 19, 2007 (the "Effective Date") by and
between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (hereinafter referred to as "▇▇. ▇▇▇▇▇▇") and
Sterling Construction Company, Inc. (hereinafter referred to as the "Company.")
Background
▇▇. ▇▇▇▇▇▇
has been an employee of the Company under an employment agreement that expired
at the close of business on July 18, 2007 (the "Prior
Agreement.") ▇▇. ▇▇▇▇▇▇ and the Company wish to enter
into another employment agreement on the terms and conditions set forth
herein.
THEREFORE,
for and in consideration of the mutual covenants contained herein and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
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1.
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Term
&
Transition.
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1.1.
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▇▇. ▇▇▇▇▇▇'▇
employment under this Agreement shall commence on the Effective Date
and
shall expire on the earlier to occur of (a) a termination of his
employment pursuant to Section 8
(Termination by the Company) or Section
9
(Termination by ▇▇. ▇▇▇▇▇▇) below; or (b) 5:00 p.m. Central Time on
December 31, 2010.
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1.2.
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Because
this Agreement will be in effect for only a part of calendar year
2007,
▇▇. ▇▇▇▇▇▇'▇ salary shall be pro rated as provided in Exhibit
A,
below.
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1.3.
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For
calendar year 2007, the provisions of the Prior Agreement relating
to
vacation shall be superseded in their entirety by the provisions
relating
to vacation in this Agreement.
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2.
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Title,
Reporting Relationship,
Responsibilities & Place of Employment.
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2.1.
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So
long as ▇▇. ▇▇▇▇▇▇ is an employee of the Company under this Agreement
—
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2.1.1.
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He
shall be elected to the position or positions set forth on Exhibit
A;
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2.1.2.
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He
shall have the reporting relationship set forth on Exhibit
A;
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2.1.3.
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He
shall devote his full working time to diligently carrying out the
duties
and responsibilities set forth in Exhibit
A to
the best of abilities; and
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2.1.4.
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His
place of employment shall be based in Houston, Texas except for required
travel on the Company's business.
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3.
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Compensation.
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3.1.
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Cash
Compensation. Subject to the transition provisions for
calendar year 2007 set forth in Exhibit
A,
below, so long as ▇▇. ▇▇▇▇▇▇ is an employee of the Company under this
Agreement, he shall be paid the Base Payroll Salary and shall be
eligible
to earn the Base Deferred Salary and the Incentive Bonus set forth
in
Exhibit
A
in accordance with the terms thereof.
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3.1.1.
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Base
Deferred Salary and Incentive Bonus if and to the extent either is
earned
in a given year shall be paid after January 1 and before March 15
of the
calendar year immediately following such year.
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3.1.2.
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All
cash compensation shall be subject to legally-required and any voluntary
withholdings and deductions.
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3.2.
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Benefits. ▇▇. ▇▇▇▇▇▇
shall be entitled to the same health, life insurance, disability
and other
like benefits as are made available to the Company's senior managers
generally, and on the same terms and conditions. He shall also
be entitled to paid vacation time as set forth on Exhibit
A.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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4.
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Business
Expense
Reimbursement. ▇▇. ▇▇▇▇▇▇ shall be reimbursed in
accordance with the Company's business expense reimbursement policy
from
time to time in effect for all reasonable business expenses incurred
by
him in the performance of his duties.
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5.
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Indemnification.
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5.1.
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▇▇. ▇▇▇▇▇▇
shall be indemnified by the Company with respect to claims made against
him as a director, officer and/or employee of the Company and of
any
affiliate of the Company to the fullest extent permitted by the Company's
charter, by-laws and the laws of the State of Delaware.
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5.2.
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The
Company shall ensure that ▇▇. ▇▇▇▇▇▇ is covered by a standard form
directors and officers liability insurance policy obtained and maintained
at no cost to ▇▇. ▇▇▇▇▇▇.
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6.
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Confidential
Information.
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6.1.
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During
his employment by the Company and thereafter, ▇▇. ▇▇▇▇▇▇ shall not
disclose to any person or entity Confidential Information (as defined
below) except in the proper performance of his duties and responsibilities
under this Agreement, or except as may be expressly authorized by
the
Board of Directors of the Company.
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6.2.
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For
purposes of this Agreement, "Confidential
Information" is defined as any information of the Company or its
affiliates that derives independent economic value from not being
generally known or readily ascertainable by proper means and includes,
but
is not limited to trade secrets, customer names and lists, vendor
names
and lists, business plans, marketing plans, non-public financial
data,
product specifications and designs, inventions, discoveries, processes,
drawings, documents, records, software, or any information of a third
party that is held by the Company or its affiliates under an obligation
of
confidentiality.
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7.
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Non-Compete
Obligations. For purposes of this Section
7 only,
the term "the Company" shall include the Company's
affiliates. ▇▇. ▇▇▇▇▇▇'▇ obligations with respect to
competing with the Company and soliciting its employees shall be
as
follows (the "Non-Compete
Obligations"):
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7.1.
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▇▇. ▇▇▇▇▇▇
shall not render services or advice, whether for compensation or
without
compensation and whether as an employee, officer, director, principal
or
otherwise, to any person or organization with respect to any product
or
service that is competitive with a product or service of the Company
in
which he was actively engaged during his employment by the Company
or of
which he has detailed knowledge; or with any planned business in
which he
had an active part in the planning or of which he has detailed knowledge.
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7.2.
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▇▇. ▇▇▇▇▇▇
shall not either directly or indirectly as agent or otherwise in
any
manner solicit, influence or encourage any customer of the Company
to take
away or to divert or direct its business to himself or to any person
or
entity by or with which he is employed, associated, affiliated or
otherwise related (other than the Company.)
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7.3.
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▇▇. ▇▇▇▇▇▇
shall not recruit or otherwise solicit or induce any employee of
the
Company to terminate his or her employment with or otherwise cease
his or
her relationship with the Company.
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7.4.
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The
Non-Compete Obligations apply to the state of Texas and any other
state in
which the Company and its affiliates taken as a whole receives more
than
10% of its annual revenues.
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7.5.
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▇▇. ▇▇▇▇▇▇'▇
obligations under this Section
7 shall
continue (a) so long as he is an employee of the Company; and (b)
after
his employment terminates (whether by reason of the expiration of
this
Agreement or pursuant to Section
8
(Termination by the Company) or Section 9
(Termination by ▇▇. ▇▇▇▇▇▇)) below, or otherwise) for a period of
twelve months; or for the period, if any, during which he is entitled
to
be paid his Base Payroll Salary, whichever period is longer.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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8.
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Termination
bythe
Company. Prior to the expiration of this Agreement, the
Company may terminate ▇▇. ▇▇▇▇▇▇'▇ employment only pursuant to the
following terms and on the following conditions:
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8.1.
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Without
Cause. The Company may terminate ▇▇. ▇▇▇▇▇▇'▇
employment Without Cause (as defined below) by giving him ninety
days'
prior written notice thereof, in which event —
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8.1.1.
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The
Company shall continue to pay him his Base Payroll Salary then in
effect
through December 31, 2010 or for twelve full calendar months, whichever
period is longer (the "Severance Period;")
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8.1.2.
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During
the Severance Period, the Company shall continue to cover ▇▇. ▇▇▇▇▇▇
under the medical and dental plans sponsored by the Company for its
employees with the same coverage he had immediately prior to the
termination of his employment, provided that ▇▇. ▇▇▇▇▇▇ remits to the
Company on a timely basis an amount equal to the applicable monthly
COBRA
premium (less the COBRA administrative surcharge) for such continued
coverage; and the Company shall reimburse ▇▇. ▇▇▇▇▇▇ for any medical
premium expenses incurred by him hereunder within thirty days after
the
date of his payment thereof. To the extent that any medical or
dental expense or in-kind benefits provided for under this Section 8.1.2
are taxable to ▇▇. ▇▇▇▇▇▇ in a given year, any such expense shall be
reimbursed to ▇▇. ▇▇▇▇▇▇ by the Company within thirty days of such
expense being incurred by him, and any expenses reimbursed or in-kind
benefits provided hereunder shall not affect the expenses eligible
for
reimbursement or in-kind benefits provided in any other year.
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8.1.3.
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The
Company shall pay ▇▇. ▇▇▇▇▇▇ in the manner and at the time set forth
in Exhibit
A, a portion of any Base Deferred Salary and of any Incentive
Bonus
that he would have earned had he remained an employee of the Company
through the end of the calendar year in which his employment terminated,
such portion to be based on the number of days during such year that
he
was an employee of the Company; and
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8.1.4.
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The
Company shall permit him to purchase any insurance maintained by
the
Company for its own benefit on his life at its then cash surrender
value.
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The
foregoing severance benefits are the only benefits and payments to which
▇▇. ▇▇▇▇▇▇ is entitled that arise out of the termination of his employment
under this Section
8.1.
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8.2.
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Definition
of Without
Cause. ▇▇. ▇▇▇▇▇▇'▇ employment shall be deemed to
have been terminated by the Company Without Cause unless termination
is
for one of the reasons set forth in Section
8.5,
below, by reason of his death or pursuant to Section
9.1,
below.
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8.3.
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Termination
for Permanent
Disability. The Company may terminate ▇▇. ▇▇▇▇▇▇'▇
employment if he shall become permanently
disabled. ▇▇. ▇▇▇▇▇▇ shall be considered to have become
permanently disabled if during any consecutive twelve-month period,
because of ill health, or physical or mental disability, he shall
have
been continuously unable to perform his duties under this Agreement,
in
whole or in substantial part, for one hundred eighty consecutive
days. The phrase "substantial part" means the inability of
▇▇. ▇▇▇▇▇▇ to perform and devote at least eight hours per work day to
the performance of his duties and responsibilities.
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8.4.
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Upon
the Death of
▇▇. ▇▇▇▇▇▇. In the event of ▇▇. ▇▇▇▇▇▇'▇ death
during the term of this Agreement, his employment shall thereupon
terminate and the Company shall pay his estate —
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8.4.1.
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His
Base Payroll Salary then in effect through the date of his death
to the
extent not already paid; and
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Page
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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8.4.2.
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In
the manner and at the time provided in Exhibit
A, a
portion of any Base Deferred Salary and any Incentive Bonus that
he would
have earned had he remained an employee through the end of the calendar
year in which his death occurred, such portion to be based on the
number
of days during such year that he was an employee.
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8.5.
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Termination
for
Cause. The Company may terminate ▇▇. ▇▇▇▇▇▇'▇
employment for Cause (as defined below) by giving him written notice
of
termination. In the event of the termination of
▇▇. ▇▇▇▇▇▇'▇ employment for Cause, the Company shall pay him any
accrued but unpaid Base Payroll Salary through the date of termination
and
any other legally-required payments through that date. For the
avoidance of doubt, no Base Deferred Salary and no Incentive Bonus
shall
be payable to him for the year in which his employment is terminated
for
Cause.
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8.5.1.
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Definition
of
Cause. For
purposes of Section
8.5,
"Cause" for
termination of ▇▇. ▇▇▇▇▇▇'▇ employment shall mean any one or more of
the following:
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(a)
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▇▇. ▇▇▇▇▇▇’▇
gross neglect of his duties, gross negligence in the performance
of his
duties, or his refusal to perform his duties.
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(b)
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▇▇. ▇▇▇▇▇▇’▇
unsatisfactory performance of his duties that is not cured within
thirty
working days after written notice is given to him specifically identifying
each reason why ▇▇. ▇▇▇▇▇▇’▇ performance is unsatisfactory and what
he can do to cure such unsatisfactory performance.
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(c)
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Any
act of theft or other dishonesty by ▇▇. ▇▇▇▇▇▇, including, but not
limited to any intentional misapplication of the Company's or its
affiliates' funds or other property.
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(d)
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▇▇. ▇▇▇▇▇▇’▇
conviction of any criminal activity not described in Subsection (c),
above, or participation in an activity involving moral turpitude
that is
or could reasonably be expected to be injurious to the business or
reputation of the Company.
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(e)
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▇▇. ▇▇▇▇▇▇’▇
immoderate use of alcohol and/or the use of non-prescribed narcotics
that
adversely and materially affects the performance of his duties.
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9.
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Termination
by
▇▇. ▇▇▇▇▇▇.
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9.1.
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Voluntary
Resignation. ▇▇. ▇▇▇▇▇▇ may resign his employment
with the Company on ninety days' prior written notice to the Company
(the
"90-Day Notice
Period.") Upon receipt of a notice of resignation, the
Company —
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9.1.1.
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May
accelerate the effective date of ▇▇. ▇▇▇▇▇▇'▇ resignation to any date
within the 90-Day Notice Period; and/or
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9.1.2.
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May
deem his notice of resignation a resignation by him of (i) any one
or more
of the offices then held by him in the Company; and (ii) any one
or more
of the directorships and offices then held by him in the Company's
affiliates, in each case to be effective on any date or dates within
the
90-Day Notice Period.
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9.2.
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In
the event ▇▇. ▇▇▇▇▇▇'▇ resignation becomes effective before the end
of a calendar year, a portion of any Base Deferred Salary that he
would
have earned had he remained an employee through the end of such calendar
year shall be paid to him in the manner and at the time set forth
in Exhibit
A, such
portion to be based on the number of days during such year that he
was an
employee, but no Incentive Bonus shall be payable to him for such
year.
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9.3.
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In
the event that ▇▇. ▇▇▇▇▇▇'▇ resignation becomes effective at or after
the end of the calendar year in which he gave notice of his resignation,
he shall be entitled to Base Deferred Salary and Incentive Bonus
for the
year in which he gave notice of his resignation to the same extent
as if
he had not given notice of his resignation.
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Page
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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9.4.
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No
Incentive Bonus shall be payable to ▇▇. ▇▇▇▇▇▇ with respect to the
calendar year following the calendar year in which he gives notice
of his
resignation.
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9.5.
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Constructive
Termination. ▇▇. ▇▇▇▇▇▇ may terminate his
employment if (a) the Company commits a Breach (as defined below)
of this
Agreement; (b) ▇▇. ▇▇▇▇▇▇ gives the Company detailed written notice
of the Breach within thirty days after the occurrence thereof; and
(c) the
Company shall fail to cure the Breach within thirty days after the
receipt
of such notice or, if the nature of the Breach is such that it cannot
practicably be cured in thirty days, if the Company shall fail to
diligently and in good faith commence a cure of the Breach within
such
thirty-day period.
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9.6.
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In
the event of the termination by ▇▇. ▇▇▇▇▇▇ of his employment by
reason of a Breach by the Company, the termination shall be deemed
for
purposes of this Agreement to be a termination by the Company Without
Cause, and the Company shall be required to perform all of its obligations
described in Section
8.1,
above.
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9.7.
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For
purposes of Section
9.5,
above, "Breach"
shall mean a material breach by the Company of any one or more of
the
material terms or conditions of this Agreement.
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10.
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Notices. All
notices required or permitted under this Agreement shall be in writing
and
shall be deemed given by a party when hand delivered to the other
party
against a receipt therefor or when deposited with a delivery service
that
provides next-business-day delivery and proof of delivery, in either
case
addressed to the other party as follows:
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If
tothe Company
at:
Sterling
Construction Company, Inc.
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: Board
of Directors
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With
a copy to:
▇▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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If
to ▇▇. ▇▇▇▇▇▇,
at his most recent home address as shown in the Company's employment
records.
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or
to
such other persons or addresses as may be designated in writing by the party
to
receive such notice.
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11.
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Severability. If
any provision or part of a provision of this Agreement is finally
declared
to be invalid by any tribunal of competent jurisdiction, such part
shall
be deemed automatically adjusted, if possible, to conform to the
requirements for validity, but, if such adjustment is not possible,
it
shall be deemed deleted from this Agreement as though it had never
been
included herein. In either case, the balance of any such
provision and of this Agreement shall remain in full force and
effect. Notwithstanding the foregoing, however, no provision
shall be deleted if it is clearly apparent under the circumstances
that
either or both of the parties would not have entered into this Agreement
without such provision.
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12.
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Survival. Notwithstanding
the expiration or earlier termination of this Agreement or of
▇▇. ▇▇▇▇▇▇'▇ employment for any reason, the terms and conditions of
Section 6
(Confidential Information) and Section 7
(Non-Compete Obligations) above, and any other obligation of a party
that
by its terms is to be performed or is to have continued effect after
such
termination shall survive such expiration or termination.
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13.
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Proration. Any
amount payable to ▇▇. ▇▇▇▇▇▇ hereunder for a period shorter than the
period for which it is provided herein shall be pro-rated on a daily
basis
using a 365-day year.
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Page
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9
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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14.
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Miscellaneous.
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14.1.
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Entire
Agreement. This Agreement together with Exhibit
A
contains the entire understanding of the parties on the subject matter
hereof; shall not be amended, except by written agreement of the
parties
signed by each of them; shall be binding upon, and inure to the benefit
of, the parties and their successors, personal representatives and
permitted assigns; and shall not be assignable by either party without
the
prior written consent of the other party, except that the Company
may
assign this Agreement to any entity acquiring all of the stock, business
or assets of the Company, provided that the acquiror assumes all
of the
Company 's obligations hereunder.
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14.2.
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Construction.
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14.2.1.
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Each
party has read and understood this Agreement and each party has had
an
opportunity to review this agreement with its or his counsel. Accordingly,
each provision of this Agreement shall be interpreted and enforced
without
the aid of any canon, custom or rule of law requiring or suggesting
construction against the party drafting or causing the drafting of
such
provision.
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14.2.2.
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The
words "herein," "hereof," "hereunder," "hereby," "herewith" and words
of
similar import when used in this Agreement shall be construed to
refer to
this Agreement as a whole.
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14.2.3.
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An
"affiliate" of the Company is any entity controlling, controlled
by, or
under common control with the Company.
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14.3.
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Prior
Agreements. No representation, affirmation of fact,
course of prior dealings, promise or condition in connection herewith
or
usage of the trade not expressly incorporated herein shall be binding
on
the parties.
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14.4.
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Waiver. The
failure to insist upon strict compliance with any term, covenant
or
condition contained herein shall not be deemed a waiver of such term,
nor
shall any waiver or relinquishment of any right at any one or more
times
be deemed a waiver or relinquishment of such right at any other time
or
times. No term or condition hereof shall be waived unless in
writing by the party to be bound by such waiver;
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14.5.
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Captions. The
captions of the paragraphs herein are for convenience only and shall
not
be used to construe or interpret this Agreement.
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14.6.
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Counterparts
&
Execution. This Agreement may be executed in multiple
counterparts, each of which may be considered an original, but all
of
which together shall constitute but one and the same
instrument. This Agreement when signed by a party may be
delivered by telecopier or other facsimile transmission with the
same
force and effect as if the same were an executed and delivered original
manually-signed counterpart.
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15.
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Governing
Law. This Agreement shall be governed by, and construed
in accordance with, the domestic laws of the State of Texas without
giving
effect to any choice of law or conflict of law provision or rule
(whether
of the State of Texas or of any other jurisdiction) that would cause
the
application hereto of the laws of any jurisdiction other than the
State of
Texas.
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16.
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Compliance
with Section 409A of
the Code.
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16.1.
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To
the extent that any payment to ▇▇. ▇▇▇▇▇▇ under this Agreement is
deemed to be deferred compensation subject to the requirements of
Section
409A of the Internal Revenue Code of 1986 (the "Code") this
Agreement
shall be operated in compliance with the applicable requirements
of
Section 409A of the Code ("Section 409A") and
its
corresponding regulations and related guidance with respect to the
payment
in question. Notwithstanding anything in this Agreement to the
contrary, any payment under this Agreement that is subject to the
requirements of Section 409A may only be made in a manner and upon
an
event permitted by Section 409A. To the extent that any
provision of this Agreement would cause a conflict with the requirements
of Section 409A, or would cause the administration of this Agreement
to
fail to satisfy the requirements of Section 409A, such provision
shall be deemed null and void to the extent permitted by applicable
law,
and the Company may modify this Agreement in such a manner as to
comply
with such requirements without ▇▇. ▇▇▇▇▇▇'▇ consent.
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Page
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9
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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16.2.
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If
▇▇. ▇▇▇▇▇▇ is a key employee (as defined in Section 416(i) of the
Code (without regard to paragraph 5 thereof)) except to the extent
permitted under Section 409A, no benefit or payment that is subject
to
Section 409A (after taking into account all applicable exceptions
to
Section 409A, including but not limited to the exceptions for short-term
deferrals and for separation pay only upon an involuntary separation
from
service) shall be made under this Agreement on account of
▇▇. ▇▇▇▇▇▇'▇ separation from service (as defined in Section 409A)
with the Company until the later of —
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16.2.1.
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The
date prescribed for payment in this Agreement; and
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16.2.2.
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The
first day of the seventh calendar month that begins after the date
of
▇▇. ▇▇▇▇▇▇'▇ separation from service (or, if earlier, the date of his
death.)
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16.3.
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All
payments that were delayed by reason of the application of the date
prescribed by Section
16.2.2,
above (the "Section
16.2.2 Date") shall be aggregated and paid to ▇▇. ▇▇▇▇▇▇ on
the Section 16.2.2 Date in a lump sum together with interest computed
from
the date each such payment would have first been paid to him absent
the
application of the Section 16.2.2 Date until paid using the Non-LIBOR
rate
of interest the Company would have paid had it borrowed the amount
of the
payment under its revolving line of credit. After the Section
16.2.2 Date, the Company shall pay any other amounts provided for
herein
to the extent and in the manner provided in this Agreement.
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In
Witness Whereof, the parties hereto have executed this Agreement as of the
day
and year first above written.
Sterling
Construction Company, Inc.
| By: | |||
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇.
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Chairman
& Chief Executive Officer
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Page
7 of
9
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
EXHIBIT
A
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For
purposes of this Exhibit
A,
"SCC" means the Company.
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Title
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▇▇. ▇▇▇▇▇▇
shall be elected annually President and Chief Operating Officer of
the
Company.
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Duties
and Responsibilities
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▇▇. ▇▇▇▇▇▇
shall carry out the customary duties and responsibilities of a president
and chief operating officer of a publicly-traded company.
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Reporting
Relationship
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In
carrying out those duties and responsibilities, ▇▇. ▇▇▇▇▇▇ shall
report to SCC's Board of Directors.
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Base
Payroll Salary
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▇▇. ▇▇▇▇▇▇'▇
annualized Base Payroll Salary shall be $365,000, which shall be
paid to
him commencing as of July 19, 2007 in bi-weekly installments at the
same
time and in the same manner as other senior managers of the Company
are
paid their Base Payroll Salaries.
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Base
Deferred Salary
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▇▇. ▇▇▇▇▇▇'▇
annualized Base Deferred Salary shall be $162,500 and shall be paid
to him
if in a given calendar year SCC achieves seventy-five percent of
the
EBITDA budgeted for such year provided that the budget was approved
by the
Board of Directors of SCC.
However,
if 75% of budgeted EBITDA is achieved in 2007 —
For
the period January 1 through and including July 18, 2007, ▇▇. ▇▇▇▇▇▇
shall be paid an amount equal to 54.25% of his "bonus" under the
Prior
Agreement; and
For
the period from and including the Effective Date through and including
December 31, 2007, ▇▇. ▇▇▇▇▇▇ shall be paid an amount equal to 45.75%
of his Base Deferred Salary set forth above.
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Incentive
Bonus
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Each
calendar year including calendar year 2007, ▇▇. ▇▇▇▇▇▇ shall be
eligible to earn an Incentive Bonus of up to $162,500.
Of
that amount —
·
Sixty percent
shall be paid to ▇▇. ▇▇▇▇▇▇ if SCC achieves the fully-diluted
earnings per share budgeted for such year provided that the budget
was
approved by the Board of Directors of SCC ("Budgeted EPS");
and
·
Forty percent
will be based upon the extent to which, if at all, ▇▇. ▇▇▇▇▇▇ has
achieved the personal goals and objectives established for him for
such
year , provided
however, that for calendar year 2007, the forty percent portion of
the Incentive bonus shall be awarded, if at all, in the sole discretion
of
the Compensation Committee.
The
foregoing is in lieu of any "Additional Bonus" that might otherwise
be
payable under the Prior Agreement.
In
determining whether Budgeted EPS has been achieved in a given year,
any
shares of common stock of SCC issued during such year otherwise than
out
of a reserve therefor that had been established at or before the
approval
of the budget shall be ignored.
▇▇. ▇▇▇▇▇▇'▇
personal goals and objectives for a given year shall be established
in
consultation with, shall be subject to final approval by, and the
extent
of their achievement shall be determined by SCC's Board of Directors
and
SCC's Compensation Committee.
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8 of
9
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Employment Agreement — continued
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EBITDA
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For
purposes of this Agreement, EBITDA means the net income of SCC on
a
consolidated basis determined in accordance with generally accepted
accounting principles for a given calendar year —
Plus
Interest expense for the period;
Plus
Depreciation and amortization expense for the period;
Plus
Federal and state income tax expense incurred for the period;
Plus
Extraordinary Items (to the extent negative) if any, for the
period;
Minus
Extraordinary Items (to the extent positive) if any;
Minus
Interest income for the period;
Minus
Any fees paid to non-employee directors; and
in
calculating EBITDA for a given year, appropriate and equitable adjustment
shall be made for any material changes in the Company’s business that
occur during such year, such as an acquisition of a business or the
sale
of a part of the business.
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Vacation
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▇▇. ▇▇▇▇▇▇
shall be eligible to take so many days vacation per year as he believes
is
appropriate in light of the needs of the business.
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