**Exhibit 4.4.1.8**

 

**EMPLOYMENT AGREEMENT**

 

THIS AGREEMENT (the “***Agreement***”) isentered into as of April 1, 2003 by and between Rinker MaterialsCorporation, a Georgia corporation (the “***Company***”), and Duncan Gage (the “***Executive***”).

 

WHEREAS, the parties wish toprovide for the continued employment of the Executive by the Company on theterms and conditions herein set forth; and

 

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

 

NOW THEREFORE, inconsideration of the foregoing and the mutual covenants and agreements hereincontained, and intending to be legally bound hereby, the parties hereby agreeas follows:

 

1.                                       *Term of Employment*.  TheCompany hereby agrees to continue the Executive in its employ and the Executivehereby agrees to remain in the employ of the Company for a period commencing onJuly 1, 2002 (the “***EffectiveDate***”) and ending 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*. During the Employment Period, the Executive shall be employed as thePresident, Hydro Conduit Division of the Company and shall report directly tothe Chief Executive Officer.  TheExecutive’s duties and responsibilities to the Company shall at all times beconsistent with his position as an executive officer of the Company.  During the Employment Period, and excludingany periods of vacation and other leave to which the Executive is entitled, theExecutive agrees to devote all of his time and attention during normal businesshours to the business and affairs of the Company and to use his reasonable bestefforts to perform faithfully and efficiently the duties and responsibilitiesassigned to him hereunder.  During theEmployment Period it shall not be a violation of this Agreement for the Executiveto serve on corporate, civic or charitable boards or committees, deliverlectures, fulfill speaking engagements or teach at educational institutions anddevote reasonable amounts of time to the management of his and his family’spersonal investments and affairs, so long as such activities do notsignificantly interfere with the performance of the Executive’sresponsibilities as an

 

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employee of the Company inaccordance with this Agreement.  It isexpressly understood and agreed that to the extent that any such activitieshave been conducted by the Executive prior to the Effective Date, thereinstatement or continued conduct of such activities (or the reinstatement orconduct of activities similar in nature and scope thereto) subsequent to theEffective Date shall not thereafter be deemed to interfere with the performanceof the Executive’s responsibilities to the Company.  The Executive’s principal place of employment shall be theexecutive offices of the Company in West Palm Beach, Florida or any locationless than 30 miles from such location, although the Executive understands andagrees that he may be required to travel from time to time for businesspurposes.

 

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

 

(a)                                  *Annual Base Salary*.  TheExecutive shall be paid a base salary (“***Annual Base Salary***”) at the rate of $250,000per annum.  The Executive’s Annual BaseSalary will be paid in accordance with the Company’s regular payroll practicesapplicable to its executive officers, as established from time to time.  The rate of Annual Base Salary shall bereviewed at least annually by the Board of Directors of CSR America, afterconsideration of the recommendations of the Chief Executive Officer, and may beincreased, but not decreased, on the basis of such review.

 

(b)                                 *Annual Bonus*.  Inaddition to Annual Base Salary, the Executive shall be eligible to earn, foreach fiscal year ending during the Employment Period, an annual bonus (the “***Annual Bonus***”) incash based upon the Company achieving one or more performance goals and targetsset in good faith by the Board of Directors of the Company after reasonableconsultation with the Chief Executive Officer. The target amount for the Annual Bonus for each fiscal year (the “***Target Amount***”) shallbe 40% of the Executive’s Annual Base Salary, subject to the achievement of theperformance goals and targets for such year. The Annual Bonus payable to the Executive for a fiscal year may begreater than the Target Amount based upon performance in excess of the targetor targets set by the Board of Directors for that year, and may be equal to 0%of the Target Amount in the case of performance below the target or targets forthat year.  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.

 

The amount of the AnnualBonus for any partial fiscal year during the Employment Period shall beprorated by multiplying the amount of the Annual Bonus that would be paid tothe Executive for the full fiscal year by a fraction, the numerator of whichshall be the number of

 

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days in such fiscal year occurring during the Employment Period, andthe denominator of which shall be 365.

 

(c)                                  *Long Term IncentiveCompensation*.  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 CSR America, Inc. Long TermIncentive Plans as they may be amended from time to time.

 

(d)                                 *Savings and RetirementPlans*.  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 CSR America, Inc.Supplemental 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 Executive and/or the Executive’sfamily, as the case may be, shall be entitled to participate in and shallreceive all benefits under all welfare benefit plans, practices, policies, andprograms maintained by the Company (including, without limitation, medical, annualexecutive physical, prescription, dental, vision, short-term disability,long-term disability, group life, and accidental death and dismemberment plansand programs) as may be in effect from time to time with respect to other peerexecutives of the Company.

 

(f)                                    *Fringe Benefits*. During the Employment Period, the Executive shall be entitled to allfringe benefits and other perquisites, including, but not limited to, cellulartelephone and related expenses and a lap top computer, commensurate with thoseavailable 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 timeto time.

 

(g)                                 *Car Allowance*. During the Employment Period, the Company will pay to the Executive acar allowance of $1,050 per month during the first year of his employmenthereunder.  The amount of this allowanceshall increase by 4% per year during subsequent years.  Such allowance may be used for the costs andexpenses associated with the leasing, use, maintenance, insurance and repair ofthe Executive’s car.

 

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(h)                                 *Club Membership*. During the Employment Period, the Company will reimburse the Executiveup to an amount equal to 31⁄2% of the Executive’s Annual Base Salary, but not toexceed $8,400, per year for the cost and expenses (including initiation feesand annual dues) of social and/or business clubs. The $8,400 limitation on theamount of this allowance shall increase by 4% per year during subsequent years.

 

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

 

(j)                                     *Office and Support Staff*. During the Employment Period, the Executive shall be entitled to anoffice of a size and with furnishings and other appointments, and tosecretarial and other assistance, as is appropriate to the Executive’sposition, but in no event less than those provided to the Executive by theCompany immediately prior to the Effective Date.

 

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

 

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

 

(a)                                  *Termination or Resignationin 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 cashpayment (calculated on the basis of the Executive’s rate of Annual Base Salarythen in effect) for all unused paid time off which the Executive may haveaccrued as of the Date of Termination. In addition, in the sole discretion of the Board, the Company may paythe Executive a pro rata portion of his Annual Bonus (determined in accordancewith Section 3(b)) for the fiscal year of the Company in which suchtermination or resignation occurs.  SuchSalary and accrued paid time off shall be paid to the Executive within 30 daysfollowing the Date of Termination, and such Annual Bonus, if any, shall be paidat the time contemplated by Section 3(b). (The sum of the amounts described in this Subsection (a) shallhereinafter be referred to as the “***Accrued Obligations***”).

 

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

 

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

 

(A)                              the Accrued Obligations payable to the Executiveunder Section 4(a), except that the portion of the Accrued Obligationsattributable to the Annual Bonus shall be paid at the time described inSection 4(b)(i) notwithstanding the timing of payment set forth inSection 4(a) and assuming for purposes of determining such bonus theachievement of target performance through the Date of Termination; and

 

(B)                                a separate lump sum supplemental retirementbenefit equal to the difference between (1) the aggregate value of the ProfitSharing Contribution Account and Matching Contribution Account (as defined inthe CSR America, Inc. 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 theExecutive would receive if (i) the Executive’s employment continued at thecompensation level provided for in Sections 3(a) and (b) of this Agreement (butassuming that such salary and bonus each increase 4% per annum) for two yearsfollowing the Date of Termination, (ii) the Executive made pre-taxcontributions at the highest permissible rate (disregarding any limitationsimposed by the Code, which may or may not be set forth in the 401(k) Plan) forsuch 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 ProfitSharing Contribution Account, Matching Contribution Account, and CompanyAccount, if any, under the 401(k) Plan and the SERP;

 

(ii)                                  the Company shall pay to the Executive for aperiod of 24 months following the Date of Termination his then Annual BaseSalary and Annual Bonus assuming for purposes of determining such bonus theachievement of the Target Amount. Such Annual Base Salary shall be paid at thetime contemplated by Section 3(a) and such Annual Bonus shall be paid atthe time contemplated by Section 3(b). In the event of the Executive’s death before all amounts due under theSubsection (b)(ii) have been paid to the Executive, the amounts payable tothe Executive under this Subsection (b)(ii) shall be paid to theExecutive’s Beneficiary;

 

(iii)                               for the 24 month period following the Date ofTermination or such longer period as any plan, program, practice or policy may provide(the “***BenefitContinuation Period***”), the Company shall continue on the sameterms and conditions the benefits to the Executive and/or the Executive’sfamily provided to them under the plans, programs, practices and policiesdescribed in Section 3(e) as may be in effect from time to time withrespect to other peer executives of the Company and their families; provided,however, that if the Executive becomes re-employed with another employer and iseligible to receive medical or other welfare benefits under another employerprovided plan, the medical and other welfare benefits described herein shallcease on the date the Executive becomes a participant in such other plan; and

 

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(iv)                              the Company shall provide the Executive withup to $10,000 for outplacement services commensurate with those provided toterminated executives of comparable level made available through and at thefacilities of a reputable and experienced vendor.

 

(c)                                  *Termination for Cause orResignation Without Good Reason*.  If, during the EmploymentPeriod, the Company terminates the Executive’s employment for Cause or theExecutive resigns from his employment without Good Reason, this Agreement shallterminate without further obligations of the Company to the Executive otherthan for payment of Accrued Obligations or as may otherwise be required bylaw.  In such case, all AccruedObligations shall be paid to the Executive in cash at the times described inSection 4(a).

 

(d)                                 *Death or Disability*.  Ifthe Executive’s employment is terminated by reason of his death or Disabilityduring the Employment Period, this Agreement shall terminate without furtherobligations of the Company to the Executive or his legal representatives underthis Agreement, other than for payment of Accrued Obligations or as mayotherwise be required by law.  AllAccrued Obligations shall be paid to the Executive (or his Beneficiary in thecase of his death) in cash at the times described in Section 4(a).

 

(e)                                  *Notice and Date ofTermination*.  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 withSection 11(b) of this Agreement (the “***Notice of Termination***”).  The Notice of Termination shall indicate thespecific termination provision in this Agreement relied upon, and to the extentapplicable, set forth in reasonable detail all of the facts and circumstancesclaimed to provide a basis for termination of the Executive’s employment underthe provision so indicated.  The date ofthe Executive’s termination of employment with the Company (the “***Date of Termination***”)shall be determined as follows: (i) if the Executive’s employment is terminatedby the Company other than for Cause or Disability, the date specified in theNotice of Termination, (ii) if the Executive resigns other than for GoodReason, the later of the date specified in the Notice of Termination or tendays following the date such notice is received by the Company, (iii) if theExecutive resigns for Good Reason, ten days following the date the Notice ofTermination is received by the Company, (iv) if the Executive’s employment isterminated by the Company for Cause, the later of the date specified in theNotice of Termination or ten days following the date such notice is received bythe Executive, (v) if the Executive’s employment is terminated as the result ofhis death, the date of death, and (vi) if the Executive’s employment isterminated by reason of Disability, thirty days following the date the Noticeof Termination is received by the Executive, provided that the Executive shallnot have returned to perform his duties in accordance with Section 2during such thirty day period.  In theevent the 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

 

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fact or circumstance at a later date in support of the Executive’s orthe Company’s rights hereunder.

 

(f)                                    *Certain Reduction ofPayments by the Company*.  Notwithstanding anything in thisSection 4 to the contrary, in the event the amounts payable under thepreceding provisions of this Section 4 exceed the maximum amount permittedunder the Australian Corporations Act (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 for in this Agreement, nothing inthis Agreement shall prevent or limit the Executive’s continuing or futureparticipation in any plan, program, policy or practice provided by the Companyfor which the Executive may qualify, nor shall anything herein limit orotherwise affect such rights as the Executive may have under any contract oragreement with the Company.  Amountswhich are vested benefits or which the Executive is otherwise entitled to receiveunder any plan, policy, practice or program of or any contract or agreementwith the Company at or subsequent to the Date of Termination shall be payablein accordance with such plan, policy, practice or program or contract oragreement except as explicitly modified by this Agreement.

 

6.                                       *Full Settlement*.  TheCompany’s obligation to make the payments provided for in this Agreement andotherwise to perform its obligations hereunder shall not be affected by anyset-off, counterclaim, recoupment, defense or other claim, right or actionwhich the Company may have against 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 the amountspayable to the Executive under any of the provisions of this Agreement and,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*.  Forso long as the Executive is employed by the Company and continuing for twoyears after the Date of Termination (such period being referred to hereinafteras the “***RestrictedPeriod***”), the Executive shall not, directly or indirectly, ownan interest in, manage, operate, join, control, lend money or render financialor other assistance to or participate in or be connected with (irrespective ofwhether or not you receive remuneration for such activity), as an officer,employee, partner, stockholder, consultant or otherwise, any individual,partnership, firm, corporation or other business organization or entity thatcompetes with the Company, its parent or any of their subsidiaries(collectively, the “***Group***”).

 

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(b)                                 *No Solicitation*. During the Restricted Period, the Executive shall not, whether for hisown 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 otherwiseinterfere with the relationship of the Group with, any person who is employedby or otherwise engaged to perform services for the Group or any person orentity who is, or was within the then most recent twelve-month period, acustomer, client or supplier of the Group.

 

(c)                                  *Confidentiality*.  TheExecutive recognizes that the services to be performed by him hereunder arespecial, unique and extraordinary in that, by reason of his employmenthereunder, the Executive may acquire Confidential Information and trade secretsconcerning the operation of the Group, the use or disclosure of which couldcause the Group substantial losses and damages which could not be readilycalculated and for which no remedy at law would be adequate.  Accordingly, the Executive covenants andagrees that he will not at any time, except in performance of his obligationsto the Company hereunder or with the prior written consent of the Company, directlyor indirectly disclose to any person any secret or Confidential Informationthat the Executive may learn or have learned by reason of his association withthe Group.

 

(d)                                 *Exclusive Property*.  TheExecutive confirms that all Confidential Information is and shall remain theexclusive property of the Group.  Allbusiness records, papers and documents (including electronic media or data)kept or made by Executive relating to the business of the Group shall be andremain the property of the Group.  Uponthe termination of Executive’s employment with the Company or upon the requestof the Company at any time, the Executive shall promptly deliver to theCompany, and shall not without the consent of the Company retain copies of, anywritten materials (including electronic media or data) not previously madeavailable to the public, or records or documents (including electronic media ordata) made by the Executive or coming into Executive’s possession concerningthe business or affairs of the Group.

 

(e)                                  *No Disparagement*. During Executive’s employment with the Company and for a period of 24months following the Date of Termination, neither the Executive nor the Companyand its directors, officers, agents and affiliates shall make any statement orcommunicate any information (whether oral or written) that disparages orreflects negatively on the other.  TheCompany also agrees that it shall not interfere with Executive’s efforts toobtain subsequent employment.  Nothingherein shall preclude Executive or the Company from complying with a subpoenaor other lawful process.

 

(f)                                    *Injunctive Relief*. Without intending to limit the remedies available to the Company, theExecutive acknowledges that a breach of any of the covenants contained in thisSection 7 will result in material irreparable injury to the Group forwhich there is no adequate

 

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remedy at law, that it will not be possible to measure damages for suchinjuries 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 apreliminary or permanent injunction restraining the Executive from engaging inactivities prohibited by this Section 7 or such other relief as may berequired to specifically enforce any of the protective covenants in thisSection 7.

 

(g)                                 *Duration*.  Theterms of the protective covenants in this Section 7 shall survive theexpiration of this Agreement.

 

8.                                       *Indemnification*.  TheCompany will, to the fullest extent permitted by law, indemnify and hold theExecutive harmless from any and all liability arising from the Executive’sservice as an employee, officer or director of the Company.  The terms of this indemnification provisionshall survive the expiration of this Agreement.

 

9.                                       *Successors*.

 

(a)                                  This Agreement is personal to the Executiveand without the prior written consent of the Company shall not be assignable bythe Executive otherwise than by will or the laws of descent anddistribution.  This Agreement shallinure to the benefit of and be enforceable by the Executive’s legalrepresentatives.

 

(b)                                 This Agreement shall inure to the benefit ofand 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/orassets of the Company to assume expressly and agree to perform this Agreementin the same manner and to the same extent that the Company would be required toperform if no such succession had taken place; provided, however, that no suchassumption shall relieve the Company of its obligations hereunder.  As used in this Agreement, “***Company***” shall meanthe Company as hereinbefore defined and any successor to its business and/orassets as aforesaid which assumes and agrees to perform this Agreement byoperation of law or otherwise.

 

10.                                 *Definitions*.  Forpurposes of this Agreement, the following capitalized words shall have themeanings set forth below:

 

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

 

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(b)                                 “***Board***” shall mean the Board of Directors ofthe Company.

 

(c)                                  “***Cause***” shall mean (i) material violations bythe Executive of the Executive’s obligations under Section 2 of thisAgreement (other than as a result of incapacity due to physical or mentalillness) which are willful on the Executive’s part, and which are not remediedin a reasonable period of time after receipt of written notice from the Companyspecifying such violations, (ii) willful or reckless conduct by the Executivewhich the Board in good faith reasonably determines could be expected to have amaterial adverse effect on the business, assets, properties, results ofoperations, financial condition or prospects of the Company, (iii) commissionby the Executive of an act or acts involving fraud, embezzlement,misappropriation, theft, breach of fiduciary duty or dishonesty against theproperty or personnel of the Company or in violation of the Company’s code ofethics, or (iv) the conviction of the Executive of a felony involving an act ofdishonesty.  Notwithstanding the foregoing,the Executive shall not be deemed to have been terminated for Cause unless anduntil there shall have been delivered to the Executive a copy of a resolutionduly adopted by the Board at a meeting of the Board called and held for suchpurpose, finding that in the good faith opinion of the Board the Executive wasguilty of conduct set forth above and specifying the particulars thereof inreasonable detail.

 

(d)                                 “***Code***” shall mean the Internal Revenue Code of1986, as amended from time to time. References to any provision of the Code shall be deemed to includesuccessor provisions thereto and regulations thereunder.

 

(e)                                  “***Confidential Information***” shall mean allproprietary or confidential information of the Group (as defined inSection 7(a)) including, but not limited to, information concerning suchGroup’s products, facilities, processes, trade secrets, know-how, systems,suppliers, customers, financial information, and business plans, prospects oropportunities, other than information that is generally available to the publicother than as a result of disclosure by the Executive in violation of theconfidentiality covenant contained in Section 7(c).

 

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

 

(g)                                 “***Good Reason***” shall mean the occurrence of anyof the following events:

 

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

 

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(A)                              are reasonable and appropriate in connectionwith a business restructuring which reduces, in less than in a substantialmanner, the assets, net worth, cash flow or earnings of the Company or

 

(B)                                result in a position, authority, duties orresponsibilities that are, in the aggregate, generally equivalent to thosecontemplated by Section 2,

 

which in either case do notresult in a change in any manner in the Executive’s compensation or benefits asset forth in Section 3,

 

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

 

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

 

11.                                 *Miscellaneous*.

 

(a)                                  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Florida, withoutreference to principles of conflict of laws. The captions of this Agreement are not part of the provisions hereof andshall have no force or effect.  ThisAgreement may not be amended or modified otherwise than by a written agreementexecuted by the parties hereto or their respective successors and legalrepresentatives.

 

(b)                                 All notices and other communicationshereunder shall be in writing and shall be given by hand delivery to the otherparty or by registered or certified mail, return receipt requested, postageprepaid, addressed as follows:

 

If to the Executive:

Duncan Gage

1181 Coral Way

Singer Island, Florida 33404

 

If to the Company:

Rinker Materials Corporation

1501 Belvedere Road

West Palm Beach, Florida33406

Attention:  Chief Executive Officer

 

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or such other address aseither party shall have furnished to the other in writing in accordanceherewith.  Notice and communicationsshall be effective when actually received by the addressee.

 

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

 

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

 

(e)                                  The Executive’s or the Company’s failure toinsist upon strict compliance with any provision hereof or any other provisionof this Agreement or the failure to assert any right the Executive or theCompany may have hereunder, including, without limitation, the right of theExecutive 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 orright or any other provision or right of this Agreement.

 

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

 

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

 

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

 

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IN WITNESS WHEREOF, theExecutive has hereunto set his hand and, pursuant to the authorization from theBoard of Directors, the Company has caused these presents to be executed in itsname on its behalf, all as of the day and year first above written.

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

 

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