Exhibit
4.4.1.6


 


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
Berger (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 a Vice President of the Company and shall report
directly to the Chief Executive Officer. 
As requested by Rinker Group Limited (“Rinker”), the Executive shall
also be seconded to Rinker for such periods as are necessary to perform
faithfully and efficiently the duties, obligations and responsibilities as the
Vice President Strategy and Development of Rinker.  The Executive shall report directly to the Chief Executive
Officer of Rinker in connection with the Executive’s duties as Vice President
Strategy and Development 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, and excluding
any periods of vacation and other leave to which the Executive is entitled, the
Executive agrees to devote all of his time and attention during normal business
hours to the 


 


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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 $285,000 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 after reasonable consultation with the Chief Executive Officer.  The target amount for the Annual Bonus for
each fiscal year (the “Target
Amount”) shall be 40% 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 after reasonable consultation with
the Chief Executive Officer.  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 


 


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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.


 


(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.


 


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(g)                                 Car Allowance.  During the Employment Period, the Company
will pay to the Executive a car allowance of $1,092 per month during the first
year of his employment hereunder.  The
amount of this allowance shall increase by 4% per year during subsequent
years.  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 31⁄2% 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.


 


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, 


 


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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 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
time 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 the
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;


 


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(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 $10,000 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 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 


 


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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 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.


 


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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 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 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 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 


 


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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.                                       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 


 


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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.


 


(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).


 


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(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 either case do 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.                                 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 Berger


17123 Gulf Pine Drive


Wellington, Florida 33414


 


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If to the Company:


 


Rinker Materials Corporation


1501 Belvedere Road


West Palm Beach, Florida 33406


Attention:  Chief Executive
Officer


 


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.


 


(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.


 


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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 Berger

  	
   

  
	
   

  	
  David Berger

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Rinker Materials Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ira Fialkow

  	
   

  
	
   

  	
  Name:

  	
   Ira Fialkow

  	
   

  
	
   

  	
  Title:

  	
  V.P. Human Resources

  	
   

  
						



 


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