**Exhibit 4.4.1.9**

 

**EMPLOYMENT AGREEMENT**

 

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

 

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

 

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

 

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

 

1.                                       *Term of Employment*.  The Company hereby agrees to continue theExecutive in its employ and the Executive hereby agrees to remain in the employof the Company for a period commencing on April 1, 2003 (the “***Effective Date***”) andending on the third anniversary of such date (the “***Employment Period***”).  The Employment Period will automatically beextended on the first anniversary of the Effective Date (and on eachanniversary thereafter) for an additional one-year period unless either partyto this Agreement gives the other party hereto written notice of its intentionnot to extend the Employment Period at least 180 days prior to the applicableanniversary date.

 

2.                                       *Position and Duties*.  (a) During the Employment Period, theExecutive shall be employed as the Vice President Shared Services (InformationTechnology, Human Resources, Business Services Center) of the Company and shallreport directly to the Chief Executive Officer. As requested by Rinker GroupLimited (“Rinker”), the Executive shall also be seconded to Rinker as isnecessary to perform faithfully and efficiently the duties, obligations andresponsibilities as the Vice President Shared Services of Rinker.  The Executive shall report directly to theChief Executive Officer of Rinker in connection with the Executive’s duties asVice President Shared Services of Rinker. For purposes of this Agreement, theExecutive’s duties, obligations and responsibilities to the Company under thisAgreement shall include the duties, obligations and responsibilities of Executiveto Rinker.  (b) The Executive’s dutiesand responsibilities to the Company shall at all times be consistent with hisposition as an executive officer of the Company.  During the Employment Period, and excluding any periods ofvacation and other leave to which the Executive is entitled, the Executiveagrees to devote all of his time and attention during normal business hours tothe business and affairs of the Company and to use

 

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his reasonable best efforts to perform faithfully and efficiently theduties and responsibilities assigned to him hereunder.  During the Employment Period it shall not bea violation of this Agreement for the Executive to serve on corporate, civic orcharitable boards or committees, deliver lectures, fulfill speaking engagementsor teach at educational institutions and devote reasonable amounts of time tothe management of his and his family’s personal investments and affairs, solong as such activities do not significantly interfere with the performance ofthe Executive’s responsibilities as an employee of the Company in accordancewith this Agreement.  It is expresslyunderstood and agreed that to the extent that any such activities have beenconducted by the Executive prior to the Effective Date, the reinstatement orcontinued conduct of such activities (or the reinstatement or conduct ofactivities similar in nature and scope thereto) subsequent to the EffectiveDate shall not thereafter be deemed to interfere with the performance of theExecutive’s responsibilities to the Company. The Executive’s principal place of employment shall be the executiveoffices of the Company in West Palm Beach, Florida or any location less than 30miles from such location, although the Executive understands and agrees that hemay be required to travel from time to time for business purposes including inconnection with the secondment to Rinker.

 

3.                                       *Compensation During the Employment Period*.  During the Employment Period, the Executiveshall be compensated as follows:

 

(a)                                  *Annual Base Salary*.  The Executive shall be paid a base salary (“***Annual Base Salary***”)at the rate of $260,000 per annum.  TheExecutive’s Annual Base Salary will be paid in accordance with the Company’sregular payroll practices applicable to its executive officers, as establishedfrom time to time.  The rate of AnnualBase Salary shall be reviewed at least annually and may be increased but notdecreased.

 

(b)                                 *Annual Bonus*.  (i) In addition to Annual Base Salary, theExecutive shall be eligible to earn, for each fiscal year ending during theEmployment Period, an annual bonus (the “***Annual Bonus***”) in cash based upon the Companyachieving one or more performance goals and targets set in good faith by theBoard of Directors after reasonable consultation with the Chief ExecutiveOfficer.  The target amount for theAnnual Bonus for each fiscal year (the “***Target Amount***”) shall be 40% of theExecutive’s Annual Base Salary, subject to the achievement of the performancegoals and targets for such year.  TheAnnual Bonus payable to the Executive for a fiscal year may be greater than theTarget Amount based upon performance in excess of the target or targets set bythe Board of Directors for that year, and may be as low as 0% of the TargetAmount in the case of performance below the target or targets for thatyear.  The Annual Bonus paid to theExecutive shall be determined in accordance with criteria set by the Board ofDirectors after reasonable consultation with the Chief Executive Officer.  Each fiscal year during the EmploymentPeriod, the Company will establish an annual bonus plan in which the Executivewill participate (the “***AnnualPlan***”) and that will provide the Executive with a bonusopportunity not less than that described above in this Subsection (b). TheAnnual Bonus for a given fiscal year shall be paid no later than the end of thethird month of the fiscal year next following the fiscal year for which theAnnual Bonus is awarded.

 

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

 

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

 

(d)                                 *Savings and Retirement Plans*.  During the Employment Period, the Executiveshall be entitled to participate in all savings and retirement plans,practices, policies, and programs maintained by the Company as may be in effectfrom time to time with respect to other peer executives of the Company.  In addition, subject to the Company’s rightto terminate such plan, during the Employment Period the Rinker MaterialsSupplemental Executive Profit Sharing 401(k) Plan (the “***SERP***”) shall remainin full force and effect and the Executive shall continue to accrue additionalbenefits during the Employment Period under the SERP in accordance with theterms and conditions thereof. At all times during the Employment Term unlessthe SERP is otherwise terminated, the terms and provisions of the SERP shall beno less favorable to the Executive than the terms and provisions of the SERP ineffect immediately prior to the Effective Date.

 

(e)                                  *Welfare Benefit Plans*.  During the Employment Period, the Executiveand/or the Executive’s family, as the case may be, shall be entitled toparticipate in and shall receive all benefits under all welfare benefit plans,practices, policies, and programs maintained by the Company (including, withoutlimitation, medical, annual executive physical, prescription, dental, vision,short-term disability, long-term disability, group life, and accidental deathand dismemberment plans and programs) as may be in effect from time to timewith respect to other peer executives of the Company.

 

(f)                                    *Fringe Benefits*.  During the Employment Period, the Executiveshall be entitled to all fringe benefits and other perquisites, including, butnot limited to, cellular telephone and related expenses and a lap top computer,commensurate with those available to other peer executives of the Company inaccordance with the plans, practices, programs, and policies of the Company asmay be in effect from time to time.

 

(g)                                 *Car Allowance*.  During the Employment Period, the Companywill pay to the Executive a car allowance of $1,092 per month during the firstyear of his employment hereunder.  Theamount of this allowance shall increase by 4% per year during subsequent years.

 

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

 

(h)                                 *Club Membership*.  During the Employment Period, the Companywill reimburse the Executive up to an amount equal to 31⁄2% of the Executive’sAnnual Base Salary, but not to exceed $9,086, per year for the cost andexpenses (including initiation fees and annual dues) of social and/or businessclubs. The $9,086 limitation on the amount of this allowance shall increase by4% per year during subsequent years.

 

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

 

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

 

(k)                                  *Vacation*.  During the Employment Period, the Executive shall be entitled topaid vacation in accordance with the policies of the Company as in effect fromtime 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 mayresign from his employment for any lawful reason or for no stated reason.

 

(a)                                  *Termination or Resignation in General*.   If, during the Employment Period, theCompany terminates the Executive’s employment or the Executive resigns from hisemployment, the Company shall pay the Executive the full amount of theExecutive’s Annual Base Salary through the Date of Termination (as defined inSection 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 ineffect) for all unused paid time off which the Executive may have accrued as ofthe 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)) for the fiscal year of theCompany during which such termination or resignation occurs.  Such Salary and accrued paid time off shallbe paid to the Executive within 30 days following the Date of Termination, andsuch Annual Bonus, if any, shall be paid at the time contemplated by Section3(b)(i).  (The sum of the amountsdescribed in this Subsection (a) shall hereinafter be referred to as the “***Accrued Obligations***”).

 

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(b)                                 *Termination Without Cause or Resignation for GoodReason*.  If, during theEmployment Period, the Company terminates the Executive’s employment other thanfor Cause or Disability or the Executive resigns from his employment for GoodReason:

 

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

 

(A)                              theAccrued Obligations payable to the Executive under Section 4(a), except thatthe portion of the Accrued Obligations attributable to the Annual Bonus shallnot be in the discretion of the Board of Directors and shall be paid at thetime described in Section 4(b)(i) notwithstanding the timing of payment setforth in Section 4(a) and assuming for purposes of determining such bonus theachievement of target performance through the Date of Termination; and

 

(B)                                aseparate lump sum supplemental retirement benefit equal to the differencebetween (1) the aggregate value of the Profit Sharing Contribution Account andMatching Contribution Account (as defined in the Rinker Materials ProfitSharing 401(k) Plan or any successor plan thereto (the “***401(k) Plan***”)) andthe Company Account (as defined in the SERP) under the SERP that the Executivewould receive if (i) the Executive’s employment continued at the compensationlevel provided for in Sections 3(a) and (b) of this Agreement (but assumingthat such salary and bonus each increase 4% per annum) for two years followingthe Date of Termination, (ii) the Executive made pre-tax contributions at thehighest 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 ContributionAccount, and Company Account were fully vested, and (2) the actual aggregatevalue of the vested portions of the Executive’s Profit Sharing ContributionAccount, Matching Contribution Account, and Company Account, if any, under the401(k) Plan and the SERP;

 

(ii)                                  withoutduplication of any amounts described in Section 4(b)(i)(A), the Company shallpay to the Executive for a period of 24 months following the Date ofTermination his then Annual Base Salary and Annual Bonus assuming for purposesof determining such bonus the achievement of the Target Amount.  Such Annual Base Salary shall be paid at thetimes contemplated by Section 3(a) and such Annual Bonus shall be paid at thetime contemplated by Section 3(b).  Inthe 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 Executiveunder this Subsection (b)(ii) shall be paid to the Executive’s Beneficiary;

 

(iii)                               forthe 24 month period following the Date of Termination or such longer period asany plan, program, practice or policy may provide (the “***Benefit Continuation Period***”),the Company shall continue on the same terms and conditions the benefits to theExecutive 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 effectfrom time to time with respect to other

 

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peer executives of the Company and their families; provided, however,that if the Executive becomes re-employed with another employer and is eligibleto receive medical or other welfare benefits under another employer providedplan, the medical and other welfare benefits described herein shall cease onthe date the Executive becomes a participant in such other plan; and

 

(iv)                              theCompany shall provide the Executive with up to $10,000 for outplacementservices commensurate with those provided to terminated executives ofcomparable level made available through and at the facilities of a reputableand experienced vendor.

 

(c)                                  *Termination for Cause or Resignation Without GoodReason*.  If, during theEmployment Period, the Company terminates the Executive’s employment for Causeor the Executive resigns from his employment without Good Reason, thisAgreement shall terminate without further obligations of the Company to theExecutive other than for payment of Accrued Obligations or as may otherwise berequired by law.  In such case, allAccrued Obligations shall be paid to the Executive in cash at the times describedin Section 4(a).

 

(d)                                 *Death or Disability*.  If the Executive’s employment is terminatedby reason of his death or Disability during the Employment Period, thisAgreement shall terminate without further obligations of the Company to theExecutive or his legal representatives under this Agreement, other than forpayment of Accrued Obligations or as may otherwise be required by law.  All Accrued Obligations shall be paid to theExecutive (or his Beneficiary in the case of his death) in cash at the times describedin Section 4(a).

 

(e)                                  *Notice and Date of Termination*.  Any termination by the Company or by theExecutive during the Employment Period shall be communicated by a notice oftermination to the other party hereto given in accordance with Section 11(b) ofthis Agreement (the “***Noticeof Termination***”).  TheNotice of Termination shall indicate the specific termination provision in thisAgreement relied upon, and to the extent applicable, set forth in reasonabledetail all of the facts and circumstances claimed to provide a basis fortermination of the Executive’s employment under the provision soindicated.  The date of the Executive’stermination of employment with the Company (the “***Date of Termination***”) shall bedetermined as follows: (i) if the Executive’s employment is terminated by theCompany other than for Cause or Disability, the date specified in the Notice ofTermination, (ii) if the Executive resigns other than for Good Reason, thelater of the date specified in the Notice of Termination or ten days followingthe date such notice is received by the Company, (iii) if the Executive resignsfor Good Reason, ten days following the date the Notice of Termination isreceived by the Company, (iv) if the Executive’s employment is terminated bythe Company for Cause, the later of the date specified in the Notice ofTermination or ten days following the date such notice is received by theExecutive, (v) if the Executive’s employment is terminated as the result of hisdeath, the date of death, and (vi) if the Executive’s employment is terminatedby reason of Disability, thirty days following the date the Notice ofTermination is received by the Executive, provided that the Executive shall nothave returned to perform his duties in accordance with Section 2 during suchthirty day period.  In the event the

 

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Executive or the Company fails to set forth in the Notice ofTermination any fact or circumstance which could provide or support a basis fortermination, the Executive or the Company, as the case may be, shall havewaived all of its rights hereunder and be precluded from asserting such fact orcircumstance at a later date in support of the Executive’s or the Company’srights hereunder.

 

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

 

 

5.                                       *Non-exclusivity of Rights*.  Except as otherwise expressly provided forin this Agreement, nothing in this Agreement shall prevent or limit theExecutive’s continuing or future participation in any plan, program, policy orpractice provided by the Company for which the Executive may qualify, nor shallanything herein limit or otherwise affect such rights as the Executive may haveunder any contract or agreement with the Company.  Amounts which are vested benefits or which the Executive isotherwise entitled to receive under any plan, policy, practice or program of orany contract or agreement with the Company at or subsequent to the Date ofTermination shall be payable in accordance with such plan, policy, practice orprogram or contract or agreement except as explicitly referenced and modifiedby this Agreement.

 

6.                                       *Full Settlement*.  The Company’s obligation to make thepayments provided for in this Agreement and otherwise to perform itsobligations hereunder shall not be affected by any set-off, counterclaim,recoupment, defense or other claim, right or action which the Company may haveagainst the Executive or others. In no event shall the Executive be obligatedto seek other employment or take any other action by way of mitigation of theamounts payable to the Executive under any of the provisions of this Agreementand, except as otherwise expressly provided for in this Agreement, such amountsshall 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 bythe Company and continuing for two years after the Date of Termination (suchperiod being referred to hereinafter as the “***Restricted Period***”), the Executive shallnot, directly or indirectly, own an interest in, manage, operate, join,control, lend money or render financial or other assistance to or participatein or be connected with (irrespective of whether or not Executive receivesremuneration for such activity), as an officer, employee, partner, stockholder,consultant or otherwise, any individual, partnership, firm, corporation orother business organization or

 

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entity that competes with the Company, its parent or any of theirsubsidiaries (collectively, the “***Group***”).

 

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

 

(c)                                  *Confidentiality*.  The Executive recognizes that the servicesto be performed by the Executive hereunder are special, unique andextraordinary in that, by reason of the employment of the Executive hereunder,the Executive may acquire Confidential Information and trade secrets concerningthe operation of the Group, the use or disclosure of which could cause the Groupsubstantial losses and damages which could not be readily calculated and forwhich no remedy at law would be adequate. Accordingly, the Executive covenants and agrees that the Executive willnot at any time, except in performance of Executive’s obligations to theCompany hereunder or with the prior written consent of the Company, directly orindirectly disclose to any person any secret or Confidential Information thatthe Executive may learn or have learned by reason of the association of theExecutive with the Group.

 

(d)                                 *Exclusive Property*.  The Executive confirms that all ConfidentialInformation 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 thebusiness of the Group shall be and remain the property of the Group.  Upon the termination of Executive’semployment with the Company or upon the request of the Company at any time, theExecutive shall promptly deliver to the Company, and shall not without theconsent of the Company retain copies of, any written materials (includingelectronic media or data) not previously made available to the public, orrecords or documents (including electronic media or data) made by the Executiveor coming into Executive’s possession concerning the business or affairs of theGroup.

 

(e)                                  *No Disparagement*.  During Executive’s employment with theCompany 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 theother.  The Company also agrees that itshall not interfere with Executive’s efforts to obtain subsequentemployment.  Nothing herein shallpreclude Executive or the Group from complying with a subpoena or other lawfulprocess or from instituting or responding to a legal proceeding and making goodfaith claims in any such proceeding.

 

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(f)                                    *Injunctive Relief*.  Without intending to limit the remediesavailable to the Company, the Executive acknowledges that a breach of any ofthe covenants contained in this Section 7 will result in material irreparableinjury to the Group for which there is no adequate remedy at law, that it willnot be possible to measure damages for such injuries precisely and that, in theevent of such a breach or threat thereof, the Company shall be entitled toobtain a temporary restraining order and/or a preliminary or permanentinjunction restraining the Executive from engaging in activities prohibited bythis Section 7 or such other relief as may be required to specifically enforceany of the protective covenants in this Section 7.

 

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

 

8.                                       *Indemnification*.  The Company will, to the fullest extentpermitted by law, indemnify and hold the Executive harmless from any and allliability arising from the Executive’s service as an employee, officer ordirector of the Company or any entity in the Group.  The terms of this indemnification provision shall survive theexpiration of this Agreement.

 

9.                                       *Successors*.

 

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

 

(b)                                 ThisAgreement shall inure to the benefit of and be binding upon the Company and itssuccessors and assigns.

 

(c)                                  TheCompany shall require any successor (whether direct or indirect, by purchase,merger, statutory share exchange, consolidation or otherwise) to all orsubstantially all of the business and/or assets of the Company to assumeexpressly and agree to perform this Agreement in the same manner and to thesame extent that the Company would be required to perform if no such successionhad taken place; provided, however, that no such assumption shall relieve theCompany of its obligations hereunder. As used in this Agreement, “***Company***” shall mean the Company as hereinbeforedefined and any successor to its business and/or assets as aforesaid whichassumes and agrees to perform this Agreement by operation of law or otherwise.

 

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

 

(a)                                  “***Beneficiary***” shallmean the person or persons designated by the Executive in writing to receiveany benefits payable to the Executive hereunder in the event of the Executive’sdeath or, if no such person is so designated, the Executive’s estate.  No

 

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beneficiary designation shallbe effective unless it is received by the Company prior to the date of theExecutive’s death.

 

(b)                                 “***Cause***” shall mean(i) material violations by the Executive of the Executive’s obligationsunder Section 2 of this Agreement (other than as a result of incapacity due tophysical or mental illness) which are willful on the Executive’s part, andwhich are not remedied in a reasonable period of time after receipt of writtennotice from the Company specifying such violations, (ii) willful or recklessconduct by the Executive which a good faith determination has been made thatsuch conduct could be expected to have a material adverse effect on thebusiness, assets, properties, results of operations, financial condition orprospects of the Group, (iii) commission by the Executive of an act or actsinvolving fraud, embezzlement, misappropriation, theft, breach of fiduciaryduty or dishonesty against the property or personnel of the Group or inviolation of the Group’s code of ethics, or (iv) the conviction of theExecutive of a felony involving an act of dishonesty.

 

(d)                                 “***Code***” shall mean theInternal Revenue Code of 1986, as amended from time to time.  References to any provision of the Codeshall be deemed to include successor provisions thereto and regulationsthereunder.

 

(e)                                  “***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, financialinformation, and business plans, prospects or opportunities, other thaninformation that is generally available to the public other than as a result ofdisclosure by the Executive in violation of the confidentiality covenantcontained in Section 7(c).

 

(f)                                    “***Disability***” shallmean the absence of the Executive from his duties with the Company for 180consecutive business days as a result of incapacity due to mental or physicalillness which is determined to be total and permanent by a physician selectedby the Company or its insurers and acceptable to the Executive or theExecutive’s legal representative (such agreement as to acceptability not to bewithheld unreasonably).

 

(g)                                 “***Good Reason***” shallmean the occurrence of any of the following events:

 

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

 

(A)                              arereasonable and appropriate in connection with a business restructuring whichreduces, in less than in a substantial manner, the assets, net worth, cash flowor earnings of the Company or the Group, or

 

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

 

which in either case do not result in a change in any manner in theExecutive’s compensation or benefits as set forth in Section 3,

 

(ii)  any material failure bythe Company to comply with any of the provisions of this Agreement that is notremedied by the Company promptly after receipt of notice thereof given by theExecutive, or

 

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

 

11.                                 *Miscellaneous*.

 

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

 

(b)                                 Allnotices and other communications hereunder shall be in writing and shall begiven 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:

Ira Fialkow

15591 Cedar Grove Lane

Wellington, Florida 33414

 

If to the Company:

Rinker Materials Corporation

1501 Belvedere Road

West Palm Beach, Florida 33406

Attention:  Chief ExecutiveOfficer

 

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

 

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(c)                                  Theinvalidity or unenforceability of any provision of this Agreement shall notaffect the validity or enforceability of any other provision of this Agreement,which shall remain in full force and effect.

 

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

 

(e)                                  TheExecutive’s or the Company’s failure to insist upon strict compliance with anyprovision hereof or any other provision of this Agreement or the failure toassert any right the Executive or the Company may have hereunder, including,without limitation, the right of the Executive to terminate employment for GoodReason pursuant to Section 4(b) of this Agreement, shall not be deemed to be awaiver of such provision or right or any other provision or right of thisAgreement.

 

(f)                                    Noagreements or representations, oral or otherwise, express or implied, withrespect to the subject matter hereof have been made by either party which arenot expressly set forth in this Agreement and this Agreement shall supersedeall prior agreements, negotiations, correspondence, undertakings andcommunications of the parties, oral or written, with respect to the subjectmatter hereof.

 

(g)                                 Inany litigation arising out of this Agreement, including appeals, the prevailingparty shall be entitled to recover all costs incurred, including reasonableattorneys’ fees.

 

(h)                                 TheExecutive and the Company acknowledge that, except as may otherwise be providedunder any other written agreement between the Executive and the Company, theemployment of the Executive by the Company is “at will” and may be terminatedby either the Executive or the Company at any time.

 

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IN WITNESSWHEREOF, the Executive has hereunto set his hand and the Company has causedthese presents to be executed in its name on its behalf, all as of the day andyear first above written.

 

 
|   | /s/ Ira Fialkow                  |                                     |
|--------|----------------------------------|------------------------------------------|
|   |                             | Ira Fialkow                              |
|   |                             |
|   | **Rinker Materials Corporation** |
|   |                             |
|   |                             |
|   | By:                              | /s/ David V. Clarke                      |   |
|   |                             | David V. Clarke, Chief Executive Officer |
|        |                                  |                                          |  |  |  |

 

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