Exhibit 4.4.1.1


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT (the “Agreement”) is entered into as of April 1, 2003 by
and between Rinker Materials Corporation, a Georgia corporation (the “Company”), and David
V. Clarke  (the “Executive”).


 


WHEREAS, the parties wish to provide for the continued employment of
the Executive by the Company on the terms and conditions herein set forth; and


 


WHEREAS, the parties wish to formalize their present understanding of
the terms of employment of the Executive and provide a base upon which any
future amendments to their relationship can be developed;


 


NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree as follows:


 


1.                                       Term of Employment.  The Company hereby agrees to continue the
Executive in its employ and the Executive hereby agrees to remain in the employ
of the Company for a period commencing on April 1, 2003 (the “Effective Date”) and
ending on the third anniversary of such date (the “Employment Period”).  The Employment Period will automatically be
extended on the first anniversary of the Effective Date (and on each
anniversary thereafter) for an additional one-year period unless either party
to this Agreement gives the other party hereto written notice of its intention
not to extend the Employment Period at least 180 days prior to the applicable
anniversary date.


 


2.                                       Position and Duties.  (a) During the Employment Period, the
Executive shall be employed as the President and Chief Executive Officer of the
Company and shall report directly to the Board of Directors.   As requested by Rinker Group Limited
(“Rinker”), the Executive shall also be seconded to Rinker as is necessary to
perform faithfully and efficiently the duties, obligations and responsibilities
as the Managing Director and Chief Executive Officer of Rinker.  The Executive shall report directly to Board
of  Directors of Rinker in
connection  with the Executive’s duties
as Managing Director and Chief Executive Officer of Rinker.  For purposes of this Agreement, the
Executive’s duties, obligations and responsibilities to the Company under this
Agreement shall include the duties, obligations and responsibilities of
Executive to Rinker.  (b)  The Executive’s duties and responsibilities
to the Company shall at all times be consistent with his position as an
executive officer of the Company. 
During the Employment Period, the Executive shall be elected or
appointed as a member of the Board of Directors of Rinker Materials
Corporation.  During the Employment
Period, and excluding any periods of vacation and other leave to which the
Executive is entitled, the Executive agrees to devote all of his time


 


1

















 


and attention during normal
business hours to the business and affairs of the Company and to use his
reasonable best efforts to perform faithfully and efficiently the duties and
responsibilities assigned to him hereunder. 
During the Employment Period it shall not be a violation of this
Agreement for the Executive to serve on corporate, civic or charitable boards
or committees, deliver lectures, fulfill speaking engagements or teach at
educational institutions and devote reasonable amounts of time to the management
of his and his family’s personal investments and affairs, so long as such
activities do not significantly interfere with the performance of the
Executive’s responsibilities as an employee of the Company in accordance with
this Agreement.  It is expressly
understood and agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the reinstatement or
continued conduct of such activities (or the reinstatement or conduct of
activities similar in nature and scope thereto) subsequent to the Effective
Date shall not thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company. 
The Executive’s principal place of employment shall be the executive
offices of the Company in West Palm Beach, Florida or any location less than 30
miles from such location, although the Executive understands and agrees that he
may be required to travel from time to time for business purposes including in
connection with the secondment to Rinker.


 


3.                                       Compensation During the Employment Period.  During the Employment Period, the Executive
shall be compensated as follows:


 


(a)                                  Annual Base Salary.  The Executive shall be paid a base salary (“Annual Base Salary”)
at the rate of $700,000 per annum.  The
Executive’s Annual Base Salary will be paid in accordance with the Company’s
regular payroll practices applicable to its executive officers, as established
from time to time.  The rate of Annual
Base Salary shall be reviewed at least annually and may be increased but not
decreased.


 


(b)                                 Annual Bonus.  (i) In addition to Annual Base Salary, the
Executive shall be eligible to earn, for each fiscal year ending during the
Employment Period, an annual bonus (the “Annual Bonus”) in cash based upon the Company
achieving one or more performance goals and targets set in good faith by the
Board of Directors.  The target amount
for the Annual Bonus for each fiscal year (the “Target Amount”) shall be 65% of the
Executive’s Annual Base Salary, subject to the achievement of the performance
goals and targets for such year.  The
Annual Bonus payable to the Executive for a fiscal year may be greater than the
Target Amount based upon performance in excess of the target or targets set by
the Board of Directors for that year, and may be as low as 0% of the Target
Amount in the case of performance below the target or targets for that
year.  The Annual Bonus paid to the
Executive shall be determined in accordance with criteria set by the Board of
Directors.  Each fiscal year during the
Employment Period, the Company will establish an annual bonus plan in which the
Executive will participate (the “Annual Plan”) and that will provide the
Executive with a bonus opportunity not less than that described above in this
Subsection (b). The Annual Bonus for a given fiscal year shall be paid no
later than the end of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded.


 


2

















 


(ii) The amount of the Annual Bonus for any partial fiscal year that
ends during the Employment Period shall be prorated by multiplying the amount
of the Annual Bonus that would be paid to the Executive for the full fiscal
year by a fraction, the numerator of which shall be the number of days in such
fiscal year occurring during the Employment Period, and the denominator of
which shall be 365.


 


(c)                                  Long Term Incentive Compensation.  During the Employment Period, the Executive
shall be entitled to participate in all incentive compensation plans,
practices, policies, and programs maintained by the Company for its senior
executives at a participation level reflecting the Executive’s position and on
terms and conditions no less favorable than those available to any other peer
executive, including, but not limited to, the Rinker Materials Long Term
Incentive Plans as they may be amended from time to time.


 


(d)                                 Savings and Retirement Plans.  During the Employment Period, the Executive
shall be entitled to participate in all savings and retirement plans,
practices, policies, and programs maintained by the Company as may be in effect
from time to time with respect to other peer executives of the Company.  In addition, subject to the Company’s right
to terminate such plan, during the Employment Period the Rinker Materials
Supplemental Executive Profit Sharing 401(k) Plan (the “SERP”) shall remain
in full force and effect and the Executive shall continue to accrue additional
benefits during the Employment Period under the SERP in accordance with the
terms and conditions thereof. At all times during the Employment Term unless
the SERP is otherwise terminated, the terms and provisions of the SERP shall be
no less favorable to the Executive than the terms and provisions of the SERP in
effect immediately prior to the Effective Date.


 


(e)                                  Welfare Benefit Plans.  During the Employment Period, the Executive
and/or the Executive’s family, as the case may be, shall be entitled to
participate in and shall receive all benefits under all welfare benefit plans,
practices, policies, and programs maintained by the Company (including, without
limitation, medical, annual executive physical, prescription, dental, vision,
short-term disability, long-term disability, group life, and accidental death
and dismemberment plans and programs) as may be in effect from time to time
with respect to other peer executives of the Company.


 


(f)                                    Fringe Benefits.  During the Employment Period, the Executive
shall be entitled to all fringe benefits and other perquisites, including, but
not limited to, cellular telephone and related expenses and a lap top computer,
commensurate with those available to other peer executives of the Company in
accordance with the plans, practices, programs, and policies of the Company as
may be in effect from time to time.


 


(g)                                 Car Allowance.  During the Employment Period, the Company
will pay to the Executive a car allowance of $1,456 per month during the first
year of his employment hereunder.  The
amount of this allowance shall increase by 4% per year during subsequent years.


 


3

















 


Such allowance may be used for
the costs and expenses associated with the leasing, ownership, use,
maintenance, insurance and repair of the Executive’s car.


 


(h)                                 Club Membership.  During the Employment Period, the Company
will reimburse the Executive up to  an
amount equal to 3/1⁄2% of the
Executive’s Annual Base Salary, but not to exceed $9,086 per year for the cost
and expenses (including initiation fees and annual dues) of social and/or
business clubs. The $9,086 limitation on the amount of this allowance shall
increase by 4% per year during subsequent years.


 


(i)                                     Expenses.  During the Employment Period, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the policies, practices, and procedures of the
Company as may be in effect from time to time with respect to other peer
executives of the Company.


 


(j)                                     Office and Support Staff.  During the Employment Period, the Executive
shall be entitled to an office of a size and with furnishings and other
appointments, and to secretarial and other assistance, as is appropriate to the
Executive’s position, but in no event less than those provided to the Executive
by the Company immediately prior to the Effective Date.


 


(k)                                  Vacation.  During the Employment Period, the Executive shall be entitled to
paid vacation in accordance with the policies of the Company as in effect from
time to time with respect to other peer executives of the Company.


 


(l)                                     Tax Preparation.  During the Employment Period, the Company
shall reimburse the Executive for the cost of preparing tax returns filed in
either the United States of America or Australia.  See Section 3(m) for the continuation of this benefit in the
event the Executive relocates to Australia.


 


(m)                               Relocation to Australia.  In the event the Executive relocates his
primary residence to Australia during the one year period commencing on the
Date of Termination (as defined in Section 4(e)) and ending on the first
anniversary thereof (the “Relocation Period”), the Company shall reimburse the
Executive for all reasonable relocation expenses incurred as a result of such
relocation that are customarily provided by the Company to transferred
executives, including, without limitation, (i) two first class airfares from
the United States to Perth, Australia, (ii) the costs incurred in connection
with the sale of the Executive’s primary residence in Florida, including any brokerage
fees for the sale of such residence, (iii) the loss of economic value resulting
from the sale of the Executive’s primary residence, such loss shall not be less
than the difference, if any, between (x) the average of the fair market values
of such residence as determined by three qualified, independent appraisers, and
(y) the amount realized from the sale of such residence (as determined in
accordance with Code section 1001(b)), (iv) the costs of packing and
transporting personal, family and household goods by suitable service
providers, and (v) the cost of replacement electrical equipment (not in excess
of $20,000).   All such amounts shall be
grossed-up for the impact of any taxes levied against the Executive on account
of such 


 


4

















 


reimbursements.  In addition to the foregoing, the Company
shall continue to reimburse the Executive for the cost of tax preparation
services described in Subsection (l) incurred during the Relocation
Period.  The $20,000 limitation on the
amount of the electrical equipment allowance shall be increased by 4% per year
with the base period being the calendar quarter beginning October 1, 2003.


 


4.                                       Termination of Employment.  Subject to the provisions of this
Section 4, the Company may terminate the Executive’s employment and the
Executive may resign from his employment for any lawful reason or for no stated
reason.


 


(a)                                  Termination or Resignation in General.   If, during the Employment Period, the
Company terminates the Executive’s employment or the Executive resigns from his
employment, the Company shall pay the Executive the full amount of the
Executive’s Annual Base Salary through the Date of Termination (as defined in
Section 4(e) below) to the extent accrued but not paid, plus a cash
payment (calculated on the basis of the Executive’s rate of Annual Base Salary
then in effect) for all unused paid time off which the Executive may have
accrued as of the Date of Termination. 
In addition, in the sole discretion of the Board of Directors, the
Executive may be paid a pro rata portion of his Annual Bonus (calculated in the
manner described in Section 3(b) (i)) for the fiscal year of the Company
during which such termination or resignation occurs.  Such Salary and accrued paid time off shall be paid to the
Executive within 30 days following the Date of Termination, and such Annual
Bonus, if any, shall be paid at the time contemplated by
Section 3(b)(i).  (The sum of the
amounts described in this Subsection (a) shall hereinafter be referred to
as the “Accrued
Obligations”).


 


(b)                                 Termination Without Cause or Resignation for Good
Reason.  If, during the
Employment Period, the Company terminates the Executive’s employment other than
for Cause or Disability or the Executive resigns from his employment for Good
Reason:


 


(i)                                     the
Company shall pay to the Executive in a lump sum in cash within 30 days
following the Date of Termination the aggregate of the following amounts:


 


(A)                              the
Accrued Obligations payable to the Executive under Section 4(a), except
that the portion of the Accrued Obligations attributable to the Annual Bonus
shall not be in the discretion of the Board of Directors and shall be paid at
the time described in Section 4(b)(i) notwithstanding the timing of
payment set forth in Section 4(a) and assuming for purposes of determining
such bonus the achievement of target performance through the Date of
Termination; and


 


(B)                                a
separate lump sum supplemental retirement benefit equal to the difference
between (1) the aggregate value of the Profit Sharing Contribution Account and
Matching Contribution Account (as defined in the Rinker Materials  Profit Sharing 401(k) Plan or any successor
plan thereto (the “401(k)
Plan”)) and the Company Account (as defined in the SERP) under
the SERP that the Executive would receive if (i) the Executive’s employment


 


5

















 


continued at the compensation
level provided for in Sections 3(a) and (b) of this Agreement (but assuming
that such salary and bonus each increase 4% per annum) for two years following
the Date of Termination, (ii) the Executive made pre-tax contributions at the
highest permissible rate (disregarding any limitations imposed by the Code,
which may or may not be set forth in the 401(k) Plan) for such two year period,
and (iii) the Profit Sharing Contribution Account, Matching Contribution
Account, and Company Account were fully vested, and (2) the actual aggregate
value of the vested portions of the Executive’s Profit Sharing Contribution
Account, Matching Contribution Account, and Company Account, if any, under the
401(k) Plan and the SERP;


 


(ii)                                  without
duplication of any amounts described in Section 4(b)(i)(A), the Company
shall pay to the Executive for a period of 24 months following the Date of Termination
his then Annual Base Salary and Annual Bonus assuming for purposes of
determining such bonus the achievement of the Target Amount. Such Annual Base
Salary shall be paid at the times contemplated by Section 3(a) and such
Annual Bonus shall be paid at the time contemplated by Section 3(b).  In the event of the Executive’s death before
all amounts due under this Subsection (b)(ii) have been paid to the
Executive, the amounts payable to the Executive under this
Subsection (b)(ii) shall be paid to the Executive’s Beneficiary;


 


(iii)                               for
the 24 month period following the Date of Termination or such longer period as
any plan, program, practice or policy may provide (the “Benefit Continuation Period”),
the Company shall continue on the same terms and conditions the benefits to the
Executive and/or the Executive’s family provided to them under the plans,
programs, practices and policies described in Section 3(e) as may be in
effect from time to time with respect to other peer executives of the Company
and their families; provided, however, that if the Executive becomes
re-employed with another employer and is eligible to receive medical or other
welfare benefits under another employer provided plan, the medical and other
welfare benefits described herein shall cease on the date the Executive becomes
a participant in such other plan; and


 


(iv)                              the
Company shall provide the Executive with up to $15,000 for outplacement
services commensurate with those provided to terminated executives of
comparable level made available through and at the facilities of a reputable
and experienced vendor.


 


(c)                                  Termination for Cause or Resignation Without Good
Reason.  If, during the
Employment Period, the Company terminates the Executive’s employment for Cause
or the Executive resigns from his employment without Good Reason, this
Agreement shall terminate without further obligations of the Company to the
Executive other than for payment of Accrued Obligations or as may otherwise be
required by law.  In such case, all
Accrued Obligations shall be paid to the Executive in cash at the times
described in Section 4(a).


 


(d)                                 Death or Disability.  If the Executive’s employment is terminated
by reason of his death or Disability during the Employment Period, this
Agreement shall terminate


 


6

















 


without further obligations of
the Company to the Executive or his legal representatives under this Agreement,
other than for payment of Accrued Obligations or as may otherwise be required
by law.  All Accrued Obligations shall
be paid to the Executive (or his Beneficiary in the case of his death) in cash
at the times described in Section 4(a).


 


(e)                                  Notice and Date of Termination.  Any termination by the Company or by the
Executive during the Employment Period shall be communicated by a notice of
termination to the other party hereto given in accordance with
Section 11(b) of this Agreement (the “Notice of Termination”).  The Notice of Termination shall indicate the
specific termination provision in this Agreement relied upon, and to the extent
applicable, set forth in reasonable detail all of the facts and circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated.  The date of
the Executive’s termination of employment with the Company (the “Date of Termination”)
shall be determined as follows: (i) if the Executive’s employment is terminated
by the Company other than for Cause or Disability, the date specified in the
Notice of Termination, (ii) if the Executive resigns other than for Good
Reason, the later of the date specified in the Notice of Termination or ten
days following the date such notice is received by the Company, (iii) if the
Executive resigns for Good Reason, ten days following the date the Notice of
Termination is received by the Company, (iv) if the Executive’s employment is
terminated by the Company for Cause, the later of the date specified in the
Notice of Termination or ten days following the date such notice is received by
the Executive, (v) if the Executive’s employment is terminated as the result of
his death, the date of death, and (vi) if the Executive’s employment is
terminated by reason of Disability, thirty days following the date the Notice
of Termination is received by the Executive, provided that the Executive shall
not have returned to perform his duties in accordance with Section 2
during such thirty day period.  In the
event the Executive or the Company fails to set forth in the Notice of
Termination any fact or circumstance which could provide or support a basis for
termination, the Executive or the Company, as the case may be, shall have
waived all of its rights hereunder and be precluded from asserting such fact or
circumstance at a later date in support of the Executive’s or the Company’s
rights hereunder.


 


(f)                                    Certain Reduction of Payments by the Company.  Notwithstanding anything in this
Section 4 to the contrary, in the event the amounts payable under the
preceding provisions of this Section 4 exceed the maximum amount permitted
under the Australian Corporations Act of 2001 (the “Maximum Amount”),
then the aggregate of amounts payable to or for the benefit of the Executive
pursuant to this Agreement shall be reduced to the Maximum Amount. This
paragraph only applies if the Company is required to comply with the Australian
Corporations Act at the time of termination.


 


5.                                       Non-exclusivity of Rights.  Except as otherwise expressly provided for
in this Agreement, nothing in this Agreement shall prevent or limit the Executive’s
continuing or future participation in any plan, program, policy or practice
provided by the Company for which the Executive may qualify, nor shall anything
herein limit or otherwise affect such rights as the Executive may have under
any contract or agreement with the Company. 
Amounts which are


 


7

















 


vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly referenced
and modified by this Agreement.


 


6.                                       Full Settlement.  The Company’s obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and, except as otherwise expressly provided for in this Agreement, such amounts
shall not be reduced whether or not the Executive obtains other employment.


 


7.                                       Protective Covenants.


 


(a)                                  No Competing Employment.  For so long as the Executive is employed by
the Company and continuing for two years after the Date of Termination (such
period being referred to hereinafter as the “Restricted Period”), the Executive shall
not, directly or indirectly, own an interest in, manage, operate, join,
control, lend money or render financial or other assistance to or participate
in or be connected with (irrespective of whether or not the Executive receives
remuneration for such activity), as an officer, employee, partner, stockholder,
consultant or otherwise, any individual, partnership, firm, corporation or other
business organization or entity that competes with the Company, its parent or
any of their subsidiaries (collectively, the “Group”).


 


(b)                                 No Solicitation.  During the Restricted Period, the Executive
shall not, whether for his own account or for the account of any other
individual, partnership, firm, corporation or other business organization
(other than the Group), intentionally solicit, endeavor to entice away from the
Group, or otherwise interfere with the relationship of the Group with, any
person who is employed by or otherwise engaged to perform services for the
Group or any person or entity who is, or was within the then most recent
twelve-month period, a customer, client or supplier of the Group.


 


(c)                                  Confidentiality.  The Executive recognizes that the services
to be performed by the Executive hereunder are special, unique and
extraordinary in that, by reason of  the
employment of the Executive hereunder, the Executive may acquire Confidential
Information and trade secrets concerning the operation of the Group, the use or
disclosure of which could cause the Group substantial losses and damages which
could not be readily calculated and for which no remedy at law would be
adequate.  Accordingly, the Executive
covenants and agrees that the Executive  will not at any time, except in performance of Executive’s
obligations to the Company hereunder or with the prior written consent of the
Company, directly or indirectly


 


8

















 


disclose to any person any
secret or Confidential Information that the Executive may learn or have learned
by reason of the association of the Executive with the Group.


 


(d)                                 Exclusive Property.  The Executive confirms that all Confidential
Information is and shall remain the exclusive property of the Group.  All business records, papers and documents
(including electronic media or data) kept or made by Executive relating to the
business of the Group shall be and remain the property of the Group.  Upon the termination of Executive’s employment
with the Company or upon the request of the Company at any time, the Executive
shall promptly deliver to the Company, and shall not without the consent of the
Company retain copies of, any written materials (including electronic media or
data) not previously made available to the public, or records or documents
(including electronic media or data) made by the Executive or coming into
Executive’s possession concerning the business or affairs of the Group.


 


(e)                                  No Disparagement.  During Executive’s employment with the
Company and for a period of 24 months following the Date of Termination,
neither the Executive nor the Group and their respective directors, officers,
agents and affiliates shall make any statement or communicate any information
(whether oral or written) that disparages or reflects negatively on the
other.  The Company also agrees that it
shall not interfere with Executive’s efforts to obtain subsequent
employment.  Nothing herein shall
preclude Executive or the Group from complying with a subpoena or other lawful
process or from instituting or responding to a legal proceeding and making good
faith claims in any such proceeding.


 


(f)                                    Injunctive Relief.  Without intending to limit the remedies
available to the Company, the Executive acknowledges that a breach of any of
the covenants contained in this Section 7 will result in material
irreparable injury to the Group for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of such a breach or threat thereof, the Company shall be
entitled to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in activities
prohibited by this Section 7 or such other relief as may be required to
specifically enforce any of the protective covenants in this Section 7.


 


(g)                                 Duration.  The terms of the protective covenants in this Section 7
shall survive the expiration of this Agreement.


 


8.                                       Indemnification.  The Company will, to the fullest extent
permitted by law, indemnify and hold the Executive harmless from any and all
liability arising from the Executive’s service as an employee, officer or
director of the Company or any entity in the Group.  The terms of this indemnification provision shall survive the
expiration of this Agreement.


 


9

















 


9.                                       Successors.


 


(a)                                  This
Agreement is personal to the Executive and without the prior written consent of
the Company shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution. 
This Agreement shall inure to the benefit of and be enforceable by the
Executive’s legal representatives.


 


(b)                                 This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.


 


(c)                                  The
Company shall require any successor (whether direct or indirect, by purchase,
merger, statutory share exchange, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform if no such succession
had taken place; provided, however, that no such assumption shall relieve the
Company of its obligations hereunder. 
As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law or otherwise.


 


10.                                 Definitions.  For purposes of this Agreement, the following capitalized words
shall have the meanings set forth below:


 


(a)                                  “Beneficiary” shall
mean the person or persons designated by the Executive in writing to receive
any benefits payable to the Executive hereunder in the event of the Executive’s
death or, if no such person is so designated, the Executive’s estate.  No beneficiary designation shall be
effective unless it is received by the Company prior to the date of the Executive’s
death.


 


(b)                                 “Cause” shall mean
(i) material violations by the Executive of the Executive’s obligations
under Section 2 of this Agreement (other than as a result of incapacity
due to physical or mental illness) which are willful on the Executive’s part,
and which are not remedied in a reasonable period of time after receipt of
written notice from the Company specifying such violations, (ii) willful or
reckless conduct by the Executive which a good faith determination has been
made that such conduct could be expected to have a material adverse effect on
the business, assets, properties, results of operations, financial condition or
prospects of the  Group, (iii)
commission by the Executive of an act or acts involving fraud, embezzlement,
misappropriation, theft, breach of fiduciary duty or dishonesty against the
property or personnel of the Group or in violation of the Group’s  code of ethics, or (iv) the conviction of
the Executive of a felony involving an act of dishonesty.


 


10

















 


(c)                                  “Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time.  References to any provision of the Code
shall be deemed to include successor provisions thereto and regulations
thereunder.


 


(d)                                 “Confidential Information”
shall mean all proprietary or confidential information of the Group  including, but not limited to, information
concerning the Group’s products, facilities, processes, trade secrets,
know-how, systems, suppliers, customers, financial information, and business
plans, prospects or opportunities, other than information that is generally
available to the public other than as a result of disclosure by the Executive
in violation of the confidentiality covenant contained in Section 7(c).


 


(e)                                  “Disability” shall
mean the absence of the Executive from his duties with the Company for 180
consecutive business days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected
by the Company or its insurers and acceptable to the Executive or the
Executive’s legal representative (such agreement as to acceptability not to be
withheld unreasonably).


 


(f)                                    “Good Reason” shall
mean the occurrence of any of the following events:


 


(i)  an adverse and material
change of the Executive’s duties inconsistent in any respect with the
Executive’s position (including, without limitation, status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2, other than any changes in the Executive’s
position, authority, duties or responsibilities that;


 


(A)                              are
reasonable and appropriate in connection with a business restructuring which
reduces, in less than in a substantial manner, the assets, net worth, cash flow
or earnings of the Company or the Group or


 


(B)                                result
in a position, authority, duties or responsibilities that are, in the
aggregate, generally equivalent to those contemplated by Section 2,


 


which in the case of (A) or (B) above 
does not result in a change in any manner in the Executive’s
compensation or benefits as set forth in Section 3,


 


(ii)  any material failure by
the Company to comply with any of the provisions of this Agreement that is not
remedied by the Company promptly after receipt of notice thereof given by the
Executive, or


 


(iii)  the Company requiring the
Executive to be based at any office or location other than that described in
Section 2 hereof without the Executive’s prior written consent.


 


11

















 


The parties do understand  that
from time to time there may be significant re-structuring to add or delete
assets to or from the Company or the Group as determined by the Board to best
enhance shareholder value, the result of which shall not be to diminish the
duties and responsibilities of the Executive as Managing Director and Chief
Executive as set forth in Section 2 of this Agreement.


 


11.                                 Miscellaneous.


 


(a)                                  This
Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, without reference to principles of conflict of laws.  The captions of this Agreement are not part
of the provisions hereof and shall have no force or effect.  This Agreement may not be amended or
modified otherwise than by a written agreement executed by the parties hereto
or their respective successors and legal representatives.


 


(b)                                 All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:


 


If to the Executive:


 


David V. Clarke


383 Thatch Pine Drive


Boca Raton, Florida 33432


 


If to the Company:


 


Rinker Materials Corporation


1501 Belvedere Road


West Palm Beach, Florida 33406


Attention:  Corporate Secretary


 


or such other address as either party shall have furnished to the other
in writing in accordance herewith. 
Notice and communications shall be effective when actually received by
the addressee. To be effective hereunder, notice of termination for Cause must
be accompanied by a duly adopted board resolution that specifies the
particulars thereof in reasonable detail.


 


(c)                                  The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.


 


(d)                                 The
Company may withhold from any amounts payable under this Agreement such
Federal, state or local taxes as shall be required to be withheld pursuant to
any applicable law or regulation.


 


12

















 


(e)                                  The
Executive’s or the Company’s failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(b) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.


 


(f)                                    No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement and this Agreement shall supersede
all prior agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, with respect to the subject
matter hereof.


 


(g)                                 In
any litigation arising out of this Agreement, including appeals, the prevailing
party shall be entitled to recover all costs incurred, including reasonable
attorneys’ fees.


 


(h)                                 The
Executive and the Company acknowledge that, except as may otherwise be provided
under any other written agreement between the Executive and the Company, the
employment of the Executive by the Company is “at will” and may be terminated
by either the Executive or the Company at any time.


 


13

















 


IN WITNESS
WHEREOF, the Executive has hereunto set his hand and the Company has caused
these presents to be executed in its name on its behalf, all as of the day and
year first above written.


 


 


	
   

  	
  /s/ David V. Clarke

  	
   

  
	
   

  	
  David V. Clarke

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Rinker Materials Corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ira Fialkow

  	
   

  
	
   

  	
  Name:

  	
  Ira Fialkow

  	
   

  
	
   

  	
  Title:

  	
  V.P. Human Resources