-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FcSvhICMvpJg4gLec7CH3rZRgIPTShLL8oD7AY9hSrdoeRH/I/FBtvk0gD1+DFx9 uu8awAq/sDVXdBbS5mXQcA== 0000927356-98-000335.txt : 19980318 0000927356-98-000335.hdr.sgml : 19980318 ACCESSION NUMBER: 0000927356-98-000335 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 28 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19980317 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEADOW VALLEY CORP CENTRAL INDEX KEY: 0000934749 STANDARD INDUSTRIAL CLASSIFICATION: WATER, SEWER, PIPELINE, COMM AND POWER LINE CONSTRUCTION [1623] IRS NUMBER: 880328443 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: SEC FILE NUMBER: 000-25428 FILM NUMBER: 98567197 BUSINESS ADDRESS: STREET 1: PO BOX 60726 CITY: PHOENIX STATE: AZ ZIP: 85082 BUSINESS PHONE: 6024375400 MAIL ADDRESS: STREET 1: P O BOX 60726 CITY: PHOENIX STATE: AZ ZIP: 85082 10-K405 1 FORM 10-K405 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark One) X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND - -- EXCHANGE ACT OF 1934 (FEE REQUIRED) For the fiscal year ended December 31, 1997 OR TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND - -- EXCHANGE ACT OF 1934 (NO FEE REQUIRED) Commission file number 0-25428 ------- MEADOW VALLEY CORPORATION - ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Nevada 88-0328443 - ------------------------------------------------------------------------------- (State or other jurisdiction of (I.R.S. Employer Identification Number) incorporation or organization) 4411 South 40th Street, Suite D-11, Phoenix, AZ 85040 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) (602) 437-5400 - ------------------------------------------------------------------------------- (Registrant's telephone number, including area code) SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: Title of each class: Name of exchange on which registered: Common stock, $.001 par value Nasdaq National Market Common stock purchase warrants Nasdaq National Market Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ___ --- Indicated by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K x --- On February 27, 1998, the aggregate market value of the registrant's voting stock held by non-affiliates was $14,654,878 On February 27, 1998, there were 3,601,250 shares of Common Stock outstanding. DOCUMENTS INCORPORATED BY REFERENCE The registrant incorporates by reference into Part III of this Report, information contained in its definitive proxy statement disseminated in connection with its Annual Meeting of Shareholders for the year ended December 31, 1997. 1 PART I ITEM 1. BUSINESS GENERAL The following is a summary of certain information contained in this Report and is qualified in its entirety by the detailed information and financial statements that appear elsewhere herein. Except for the historical information contained herein, the matters set forth in this Report include forward-looking statements within the meaning of the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are subject to risks and uncertainties that may cause actual results to differ materially. These risks and uncertainties are detailed throughout the Report and will be further discussed from time to time in the Company's periodic reports filed with the Commission. The forward-looking statements included in the Report speak only as of the date hereof. Meadow Valley Corporation (the "Company") was incorporated in Nevada on September 15, 1994. On October 1, 1994, the Company purchased all of the outstanding Common Stock of Meadow Valley Contractors, Inc. ("MVC"), for $11.5 million comprised of a $10 million promissory note and $1.5 million paid by the issuance of 500,000 restricted shares of the Company's Common Stock valued at $3.00 per share. MVC was founded in 1980 as a heavy construction contractor and has been engaged in that activity since inception. References to the Company's history include the history of MVC. Operating through MVC, the Company is a heavy construction contractor specializing in structural concrete construction of highway bridges and overpasses and the paving of highways and airport runways. The Company generally serves as the prime contractor for public sector customers (such as federal, state and local governmental authorities) in the states of Nevada, Arizona, Utah and New Mexico. The Company believes that specializing in structural concrete construction has contributed significantly to its revenue growth and provides it with an advantage in the competitive bidding process. However, such specialization limits the types and sizes of projects upon which the Company bids and may be a competitive disadvantage for projects in which the amount of work proposed to be completed by the prime contractor (as compared to the amount of work which will be subcontracted by the prime contractor) is a consideration in the bidding process. The Company primarily seeks public sector customers because public sector projects are less cyclical than private sector projects, payment is more reliable, work required by the project is generally standardized and little marketing expense is incurred in obtaining projects. The Company had a project backlog of approximately $214 million at December 31, 1997, which included a $91.8 million reconstruction of the core of the interchange at I-15 and US 95 in Las Vegas, NV, portions of a $39 million sitework for a new terminal at McCarran International Airport in Las Vegas, NV, portions of the $36 million Squaw Peak Pkwy Shea-Thunderbird Freeway Continuation in Phoenix, AZ, and portions of a $55 million Pima Freeway Continuation, in Phoenix, AZ. The Company's backlog includes approximately $124 million of work that is scheduled for completion during 1998. The Company has acted as the prime contractor on projects funded by a number of governmental authorities, including the Federal Highway Administration, the Arizona Department of Transportation, the Nevada Department of Transportation, the Utah Department of Transportation, the Clark County (Nevada) Department of Public Works, the Salt Lake City (Utah) Airport Authority, the New Mexico Department of Transportation and the City of Phoenix. On October 16, 1995, the Company sold 1,675,000 Units of its securities to the public at $6.00 per Unit (the "Public Offering"). Each Unit consisted of one share of $.001 par value common stock and one common stock purchase warrant. In November 1995, the Company sold an additional 251,250 Units pursuant to its underwriters' overallotment option. In 1996, the Company acquired certain assets of AKR Contracting ("AKR"), an unaffiliated Company in Phoenix, Arizona. AKR specializes in earthwork, grading and paving of residential subdivisions, commercial centers and has become increasingly involved in small publicly funded projects in Arizona and New Mexico. Through AKR, the Company entered into operating leases for a portable hot mix asphalt plant and related paving equipment and a rubberized asphalt plant. The asphalt paving capabilities provide the Company the opportunity to expand its existing geographic market. The Company believes increased competitiveness and revenues will be generated on projects that call for large quantities of asphaltic concrete, recycled asphalt or rubberized asphalt. 2 In 1996, the Company formed Ready Mix, Inc. ("RMI") as a wholly-owned subsidiary. RMI manufactures and distributes ready mix concrete in Las Vegas, NV, and targets markets such as concrete subcontractors, prime contractors, home builders, commercial and industrial property developers, pool builders and homeowners. RMI began operations from its first location in March 1997. Financed with internal funds, a $2 million line of credit, notes payable and operating leases, the Company intends for RMI to operate from two sites using at least 40 mixer trucks. In 1996, the Company formed Prestressed Products Incorporated ("PPI") as a wholly-owned subsidiary. PPI designs, manufactures and erects precast prestressed concrete building components for use on commercial, institutional and public construction projects throughout the Southwest. Product lines include architectural and structural building components and prestressed bridge girders for highway construction. During 1997, PPI began operations with a precast yard and concrete batch plant located on leased property adjacent to the Company's office in Moapa, Nevada. During 1997, financed through internal funds and operating leases, the Company obtained equipment and experienced personnel to enter the concrete or "white" paving market. By performing white paving work, the Company may be able to increase its project revenue and earnings, reduce reliance on white paving subcontractors and improve the likelihood of being awarded projects in which the amount of work proposed to be completed on a project by the prime contractor is a consideration in the competitive bidding process. BUSINESS STRATEGY The Company seeks to generate revenue growth and profitability by pursuing the following business strategy: (i) Expand Construction-related Niche Markets. The Company will continue to explore niche markets which may increase the Company's competitiveness, diversify its revenue base, increase project revenue and improve profitability. (ii) Solidify Market Position. The Company intends to continue to expand its operations in Nevada, Arizona, Utah and New Mexico and consider expansion into other western states. (iii) Seek to Acquire Other Businesses. The Company will seek to acquire other businesses that provide subcontracting services used by the Company in its projects, complement the Company's existing construction expertise or offer construction services similar to the Company in other geographic markets. In certain circumstances, the Company may join with one or more companies combining expertise, financial strength, and/or bonding capacity. Through a joint venture, the Company may be able to pursue projects which might otherwise exceed its staffing or bonding resources, including design-build type projects currently contemplated by governmental entities within the Company's existing market area. (iv) Increase Bonding Capacity. The Company retained a portion of the proceeds of its Public Offering to increase its bonding capacity in order to bid upon more and larger projects. The Company intends to retain a portion of future earnings to further increase its bonding capacity. See "Insurance and Bonding." MARKET OVERVIEW The Company believes that infrastructure construction (primarily highways, bridges, overpasses, tunnels and other transportation projects) in the western United States is substantial and will generate continued federal, state and local government expenditures. In 1997 the U.S. Congress began debate for renewal of the Intermodal Surface Transportation Efficiency Act of 1991 ("ISTEA"). Unable to reach a final agreement before the close of the legislative session, Congress simply extended the existing law through April 30, 1998. Absent action from Congress, states would be prohibited from obligating federal funds after May 1, 1998. However, the U.S. Senate has now begun debate on S. 1173 - the Intermodal Surface Transportation Efficiency Act of 1997 or ("ISTEA II"). There is support for an increase in the amounts to be authorized under this new act which is expected to provide the bulk of infrastructure funding through 2003. The Company believes that Congress will pass ISTEA II, or some form thereof, with an increase over previous obligations in order to meet the growing infrastructure needs of the nation's transportation system. In March, 1998, the U.S. Senate adopted an agreement that will boost federal highway spending by $25.8 billion from $145 billion to approximately $171 billion. Most of the funding increase will be spread over the final years 3 of ISTEA II, providing for a federal highway program funded at an annual average of approximately $29 billion during the years 1999-2003. The collection of federal gas taxes and other user fees has historically exceeded the amounts reinvested into transportation by the government, thereby allowing the "surplus" in the Highway Trust Fund to minimize the overall budget deficit. The actual projected income to the Highway Trust Fund is closer to $31 billion per year as opposed to the expenditure of approximately $21 billion per year, therefore, there is room to increase spending and still remain within the income stream of the trust fund. The growth of the Company's market has been exceptional. The states of Arizona, Nevada and Utah continue to lead the nation in key growth statistics. In particular, the three metropolitan areas of Phoenix, Salt Lake City and Las Vegas are leading growth markets. Nevada led the nation in population growth, with Arizona in second place and Utah was third (tied with Georgia). Nevada, on a percentage basis, was also the leader in employment growth. Maricopa County, Arizona and Clark County, Nevada were #3 and #6, respectively, in actual number of jobs created in 1997. This growth has led to high levels of residential and commercial construction and to increased infrastructure work. It is expected that highway and street spending in the Company's market will increase approximately 7% over 1997. The State Departments of Transportation, counties and municipalities, along with metropolitan planning organizations, are primarily responsible for programming capital improvements in streets, highways, freeways and airports. Most of these organizations are expecting increased spending over 1997 levels. The precise amounts will be greatly affected by the final outcome of ISTEA II. In addition to federal funds administered through the states, there are other funding mechanisms in place to increase infrastructure investment. Maricopa County, Arizona and Clark County, Nevada continue to collect a half-cent sales tax for the specific purpose of constructing multi-billion dollar freeway transportation facilities. Both programs will continue to receive funds through 2015. The airports in Phoenix, Las Vegas and Salt Lake City also have significant capital improvement programs, in excess of $1 billion each. In Salt Lake City, another design-build contract is being discussed to build the new Legacy Freeway valued at approximately $400 million. Depending upon resolution of alignment and environmental issues, this project could go out for proposal during 1998 or 1999. The Company's two newest subsidiaries, RMI and PPI, are affected most by the amount of new residential and commercial construction in the Las Vegas area. Forecasts for 1998 predict that the residential and commercial construction in the Las Vegas area will be somewhat less than 1997's record levels. Large hotel and casino projects built during 1996 and 1997 will not likely repeat in 1998 and will account for the largest drop-off. RMI's primary customers have been residential builders and that market segment is expected to remain strong; however, we expect stiffer competition from those companies previously supplying the major projects. PPI's market appears to have sufficient activity to fill production capacity. The Company believes that the overall health of its existing markets will present many opportunities for improved performance. OPERATIONS In addition to the construction of highways, bridges, overpasses and airport runways, the Company constructs other heavy civil projects. From its Phoenix, Arizona corporate office and area offices in Moapa, Nevada, Salt Lake City, Utah and New Mexico, the Company markets (primarily by responding to solicitations for competitive bids) and manages all of its projects. Project management is also located on-site to provide direct supervision to the operations. In addition to profitability, the Company considers a number of factors when determining whether to bid on a project, including the location of the project, likely competitors and the Company's current and projected workloads. The Company uses a computer-based project estimating system which reflects its bidding and construction experience and which the Company believes best identifies a project's risks and opportunities. The Company develops comprehensive estimates with each project divided into phases and line items for which separate labor, equipment, material, subcontractor and overhead cost estimates are compiled. Once a project begins, the estimate provides the Company with a budget against which ongoing project costs are measured. There can be no assurance that every project will attain its budgeted costs. A number of factors can affect a project's profitability including weather, availability of a quality workforce and actual productivity rates. Each month the project manager updates the job's projected performance at completion by using actual costs-to- date and re-forecasted costs-to-complete for the 4 balance of the work remaining. Regular review of the estimated costs to complete permit project, area and corporate management to be as responsive as possible to cost overruns or other problems that may affect profitability. The Company owns some of the equipment used in its business lines, including cranes, backhoes, scrapers, graders, loaders, trucks, trailers, pavers, rollers and batch plants and related equipment. The net book value of the Company's equipment at December 31, 1997 was approximately $9.1 million. The increase is due primarily to the additional equipment needed for the added construction workload and for the subsidiaries, RMI and PPI, which commenced operations during the year. The Company leases a significant portion of its equipment and attempts to keep the equipment as fully utilized as possible and may rent equipment on a short-term basis to other contractors. The Company's corporate management oversees operational and strategic issues and, through the corporate accounting staff, provides administrative support services to area managers, subsidiary presidents and individual project management at the project site. The latter are responsible for planning, scheduling and budgeting operations, equipment maintenance and utilization and customer satisfaction. Subsidiary presidents, area managers and project managers monitor project costs on a daily and weekly basis while corporate management monitors such costs monthly. Raw materials (primarily concrete, aggregate and steel) used in the Company's operations are available from a number of sources. There are a sufficient number of materials suppliers within the Company's market areas to assure the Company of adequate competitive bids for supplying such raw materials. Generally, the Company will obtain several bids from competing concrete, asphalt or aggregate suppliers whose reserves of such materials will normally extend beyond the expected completion date of the project. Costs for raw materials vary depending upon project duration, construction season, or other factors; but, generally, prices quoted to the Company for raw materials are fixed for the project's duration. Increased construction activity in the western United States has created temporary scarcity of key construction materials, primarily cement powder. It is foreseeable that shortages of cement supply might reoccur which could result in unexpected and uncontrollable reductions in sales of ready mix concrete from RMI, the Company's ready mix concrete subsidiary. The Company strives to obtain supply commitments from a number of suppliers, but their supply capacity is occasionally exceeded by spot demands. The Company has not yet been impacted by any cement shortages on its construction projects, as it normally obtains guaranteed commitments for supply of cement powder for the duration of the contracts and any damages incurred by lack of supply could be assessed back to the supplier. PROJECTS AND CUSTOMERS The Company specializes in public sector construction projects and its principal customers are the state departments of transportation in Nevada, Arizona, Utah and New Mexico and bureaus and departments of municipal and county governments in those states. For the year ended December 31, 1997, revenue generated from six projects in Nevada, Arizona and Utah represented 56% of the Company's revenue. The discontinuance of any projects, a general economic downturn or a reduction in the number of projects let out for bid in any of the states in which the Company operates, could have an adverse effect on the Company's results of operations. In each of the three years ended December 31, 1995,1996 and 1997 Clark County General Services and the Arizona Department of Transportation each accounted for over 10% of the Company's consolidated revenue. Additionally, the Utah Department of Transportation accounted for over 10% of the Company's consolidated revenue during the year ended December 31, 1997. The following table describes all projects substantially completed by the Company in each of the three years ended December 31, 1995, 1996 and 1997. Contract amounts include agreed upon change orders, if any, and represent the total dollar value of the contract to the Company.
CONTRACT COMPLETION CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT DATE - --------------------------------------------------------------------------------------------------------------- City of Phoenix Grand Canal Phoenix, AZ $ 43,845 January 1995
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CONTRACT COMPLETION CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT DATE - --------------------------------------------------------------------------------------------------------------- Arizona Department of Transportation Squaw Peak Parkway Phoenix, AZ $ 25,733,328 May 1995 Arizona Department of Transportation Casa Grande Highway Phoenix, AZ 27,052,138 May 1995 Clark County Nevada General Services Flamingo Winnick Las Vegas, NV 2,687,309 May 1995 Clark County Nevada General Services Airport North Portal Las Vegas, NV 15,068,853 May 1995 Arizona Department of Transportation Red Mountain Freeway Phoenix, AZ 12,684,836 May 1995 Salt Lake City, Utah Airport Authority 40/th/ Street Relocation Salt Lake City, UT 2,293,088 May 1995 Clark County Nevada General Services Van Buskirk Las Vegas, NV 3,175,206 May 1995 Continental Insurance Gila River Phoenix, AZ 3,594,017 May 1995 City of Mesquite, Nevada Mesquite Mesquite, NV 316,244 October 1995 Lincoln County, Nevada Panaca, NV Panaca, NV 243,903 October 1995 Colorado River Commission River Mountain Las Vegas, NV 1,300,901 November 1995 City of Mesquite, Nevada Summer Ridge Mesquite, NV 63,323 December 1995 City of Mesquite, Nevada Hillside Storm Drain Mesquite, NV 162,103 December 1995 City of Henderson, Nevada C-1 Channel Henderson, NV 1,086,497 October 1995 Arizona Department of Transportation Highway at Heber Heber, AZ 5,535,662 April 1996 Arizona Department of Transportation I-17 Widening Phoenix, AZ 8,832,295 October 1996 DG Fenn Baptist Retirement Phoenix, AZ 78,468 October 1996 Salt Lake City Airport Authority South Cargo Salt Lake City, UT 1,517,428 October 1996 Intermountain Roadbuilders Davis Monthan - Streets Tucson, AZ 344,418 April 1996 Town of Youngtown Youngtown Streets Youngtown, AZ 77,423 February 1996
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CONTRACT COMPLETION CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT DATE - --------------------------------------------------------------------------------------------------------------- Arizona Department of Transportation Pima Freeway Phoenix, AZ $ 7,546,838 May 1996 Salt Lake City Salt Lake Airport Authority Salt Lake City Airport City, UT 27,364,636 January 1996 Clark County Nevada General Services South Beltway Las Vegas, NV 16,175,964 January 1996 Arizona Department of Transportation Dunlap Phoenix, AZ 8,198,181 January 1996 VFL Technology Corporation Chevron Cell Construction Salt Lake City, UT 1,362,974 June 1996 Arizona Department of Transportation Chandler Boulevard Phoenix, AZ 2,209,435 May 1996 Utah Department of Transportation Snow Canyon Southern, UT 4,138,290 January 1996 Arizona Department of Transportation Navajo Papermill Road Phoenix, AZ 641,061 January 1996 Intermountain Roadbuilders Intermountain Roadbuilders Phoenix, AZ 264,845 January 1996 Arizona Department of Transportation Goodyear Urban Goodyear, AZ 463,665 August 1996 Crescent Run LLP Crescent Run Mesa, AZ 262,261 April 1996 Wespac Lost Canyon II Scottsdale, AZ 152,778 October 1996 City of Winslow City of Winslow Winslow, AZ 1,402,868 September 1996 Clark County Dept. of Aviation Searchlight Searchlight, NV 707,977 January 1996 Arizona Department of Transportation Nogales Connection Nogales, AZ 11,327,515 October 1996 Clark County Dept. of Aviation Jean Airport Jean, NV 3,897,065 March 1997 Clark County Dept. of Aviation McCarran Garage Infrastructure Las Vegas, NV 6,203,284 November 1997 Intermountain Roadbuilders Davis Monthan - Taxiway Tucson, AZ 162,677 March 1997 City of Henderson Equestrian Detention Henderson, NV 5,436,067 March 1997
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CONTRACT COMPLETION CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT DATE - --------------------------------------------------------------------------------------------------------------- Homes by Dave Brown Country Estates Gilbert, AZ $ 215,770 July 1997 Chanen Midwestern University II Glendale, AZ 230,579 January 1997 Moapa Water District Moapa Water District Moapa, NV 903,919 January 1997 City of Phoenix Collector Street Overlay Phoenix, AZ 1,820,288 January 1997 Triton Builders AT&T Expansion Mesa, AZ 246,080 January 1997 City of Phoenix Skunk Creek Landfill Phoenix, AZ 2,845,955 January 1997 City of Las Vegas Detention Facility Las Vegas, NV 430,700 February 1997 Robert Ewing Lone Butte 3 & 4 Maricopa County 201,979 February 1997 Frehner Construction Precast Las Vegas, NV 89,924 January 1997 City of Gilbert Municipal Parking Expansion Gilbert, AZ 154,492 January 1997 Kay Rogers/ADA Construction Legacy II Phoenix, AZ 194,023 August 1997 United States Dept. of Agriculture Tonto Forest Arizona 99,515 July 1997 Mayo Clinic/Ryan Cos. Mayo Arrowhead Glendale, AZ 155,165 October 1997 Robert Ewing Lone Butte Industrial Maricopa County 225,000 February 1997 Nevada Department of Transportation Eastern State Highway System Las Vegas, NV 2,260,492 October 1997 City of Bisbee Bisbee Municipal Airport Bisbee, AZ 295,712 January 1997 Clark County General Services CCPW Bridge Repair Las Vegas, NV 42,214 December 1997
The following table describes all projects of the Company in progress as of December 31, 1997. Current contract amounts include agreed upon change orders, if any, and represent the dollar value of the contract to the Company.
CURRENT AWARD DATE/ CONTRACT ESTIMATED CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT COMPLETION DATE - -------------------------------------------------------------------------------------------------------------- Clark County, Nevada McCarran Airport Parking January 1995/ General Services Garage Las Vegas, NV $ 60,290,797 March 1998 Clark County Department August 1995/ of Public Works LV Beltway Las Vegas, NV 29,169,402 March 1998
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CURRENT AWARD DATE/ CONTRACT ESTIMATED CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT COMPLETION DATE - -------------------------------------------------------------------------------------------------------------- Arizona Department of Phoenix - Casa Grande (Joint November 1995/ Transportation Venture) Phoenix, AZ $ 20,930,123 March 1998 Clark County Department March 1996/ of Aviation Runway Extension Las Vegas, NV 11,142,129 March 1998 Clark County Department June 1996/ of Aviation Ticketing Facility Las Vegas, NV 8,282,903 March 1998 Clark County Department June 1996/ of Aviation Union Pacific R.R.Relocation Las Vegas, NV 2,019,620 March 1998 Clark County Department August 1996/ of Aviation Terminal D Sitework Las Vegas, NV 39,444,911 April 1998 Dept. of United States June 1996/ Army White Sands Missile Range New Mexico 1,956,670 July 1999 Dept. of Transportation July 1996/ Hwy. Administration Wiggins Crossing Arizona 794,611 March 1998 Clark County Department October 1996/ of Aviation McCarran Air Cargo Expansion Las Vegas, NV 2,543,872 March 1998 New Mexico Department August 1996/ of Transportation I-25/Socorro New Mexico 3,319,865 June 1998 Arizona Department of Squaw Peak Shea-TBird October 1996/ Transportation Continuation Phoenix, AZ 36,494,376 February 1999 United States Forest Roosevelt Lake, October 1996/ Service School House Campground AZ 4,774,604 April 1998 October 1996/ Jackson Properties Country Meadows Maricopa County 929,815 February 1998 Utah Department of October 1996/ Transportation I-15/Woods Crossing Salt Lake, UT 17,205,605 June 1998 United States Marine October 1996/ Corp. Yuma Taxiway Repair Yuma, AZ 705,793 March 1998 Arizona Department of November 1996/ Transportation Douglas Rodeo Highway Douglas, AZ 1,435,326 March 1998 December 1996/ City of Mesa City of Mesa Sealcoat Mesa, AZ 84,013 March 1998 Arizona Department of February 1997/ Transportation Payson Show-Low Payson, AZ 3,764,594 March 1998
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CURRENT AWARD DATE/ CONTRACT ESTIMATED CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT COMPLETION DATE - -------------------------------------------------------------------------------------------------------------- Clark County General March 1997/ Services Sloan Channel Las Vegas, NV $ 1,296,493 March 1998 Nevada Department of April 1997/ Transportation NDOT Bike Path Las Vegas, NV 1,654,113 March 1998 Clark County General May 1997/ Services Channel Repair Las Vegas, NV 198,882 May 1998 Clark County General August 1997/ Services Russell Road Las Vegas, NV 4,742,339 March 1998 Arizona Department of April 1997/ Transportation White River Arizona 673,213 March 1998 October 1997/ City of Phoenix City of Phoenix Overlay II Phoenix, AZ 2,207,621 February 1998 Arizona Department of Coconino County, June 1997/ Transportation Blueridge-Forest AZ 2,247,621 March 1998 Fann Coconino County, September 1997/ Construction Clint's Well AZ 685,266 March 1998 Clark County General September 1997/ Services McCarran Mobil Home Park Las Vegas, NV 7,680,542 April 1998 Arizona Department of June 1997/ Transportation Pima Freeway Phoenix, AZ 55,104,378 September 1999 Utah Department of Salt Lake City, August 1997/ Transportation Bangerter Highway UT 17,887,071 January 1999 Dept. of United States August 1997/ Army White Sands MissileRange New Mexico 2,000,000 August 1999 Salt Lake City Airport Salt Lake City, August 1997/ Authority Utah Taxiway UT 9,000,204 June 1998 Arizona Department of August 1997/ Transportation Ashfork Devildog Williams, AZ 3,612,303 August 1998 Maricopa County Dept. Maricopa County, September 1997/ of Parks & Recreation Lake Pleasant AZ 1,628,582 March 1998 September 1997/ Victory Valley Land Lake Mead Henderson, NV 2,767,886 February 1998 September 1997/ City of Showlow City of Showlow Showlow, AZ 2,389,478 October 1998
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CURRENT AWARD DATE/ CONTRACT ESTIMATED CUSTOMER PROJECT DESIGNATION LOCATION AMOUNT COMPLETION DATE - -------------------------------------------------------------------------------------------------------------- New Mexico Department Donna Ana County, December 1997/ of Transportation I-15/Hatch NM $ 3,914,175 August 1998 New Mexico Department December 1997/ of Transportation NM Ruidoso Ruidoso, NM 8,399,870 November 1998 Arizona Department of Coconino County, December 1997/ Transportation SR87-Blueridge AZ 2,249,619 July 1998 Nevada Department of December 1997/ Transportation Spaghetti Bowl Las Vegas, NV 91,813,884 November 2000
BACKLOG The Company's backlog (anticipated revenue from the uncompleted portions of awarded projects) was approximately $214 million at December 31, 1997, compared to approximately $130 million at December 31, 1996. At December 31, 1997, the Company's backlog included approximately $124 million of work that is scheduled for completion during 1998. The Company includes a construction project in its backlog at such time as a contract is awarded or a firm letter of commitment is obtained. The Company believes that its backlog figures are firm, subject to provisions contained in its contracts which allow customers to modify or cancel the contracts at any time upon payment of a relatively small cancellation fee. The Company has not been materially adversely affected by contract cancellations or modifications in the past. A portion of the Company's anticipated revenue in any year is not reflected in its backlog at the start of the year because some projects are initiated and completed in the same year. COMPETITION The Company believes that the primary competitive factors as a prime contractor in the construction industry are price, reputation for quality work, financial strength, knowledge of local market conditions and estimating abilities. The Company believes that it competes favorably with respect to each of the foregoing factors. Most of the Company's projects involve public sector work for which contractors are first pre-qualified to bid and then are chosen by a competitive bidding process, primarily on the basis of price. Because the Company's bids are often determined by the cost to it of subcontractor services and materials, the Company believes it is often able to lower its overall construction bids due to its prompt payments to, consistent workloads for, and good relationships with its subcontractors and suppliers. The Company competes with a large number of small owner/operator contractors that tend to dominate smaller (under $4 million) projects. When bidding on larger infrastructure projects, the Company also competes with larger, well capitalized regional and national contractors (including Granite Construction Incorporated, Peter Kiewit Sons', Inc. and Sundt Corp., Inc.), many of whom have larger net worths, bonding capacities and construction personnel than the Company. Due to currently favorable market conditions in Nevada, Arizona, Utah and New Mexico, which have resulted in an increase in heavy construction projects in these states, additional competition for projects may be expected. Such additional competition could reduce the Company's profit margins on certain projects. The Company has received single project bond approval up to $100 million and aggregate program bonds totaling up to $240 million. Larger competitors have unlimited bonding capacity and, therefore, may be able to bid on more work than the Company. Except for bonding capacity, the Company does not believe it is at a competitive disadvantage in relation to its larger competitors. With respect to its smaller competitors, the Company believes that its larger bonding capacity, longer relationships with subcontractors and suppliers and the perceived stability of having been in business since 1980 may be competitive advantages. The Company does not believe that the competitive environment is materially different in other western states in which 11 the Company may expand. Initially, the Company will be at a competitive disadvantage in new markets until it obtains information on those markets and develops relationships with local subcontractors. THE CONTRACT PROCESS The Company's projects are obtained primarily through competitive bidding and negotiations in response to advertisements by federal, state and local government agencies and solicitations by private parties. The Company submits bids after a detailed review of the project specifications, an internal review of the Company's capabilities and equipment availability and an assessment of whether the project is likely to attain targeted profit margins. The Company owns, leases, or is readily able to rent, any equipment necessary to complete the projects upon which it bids. After computing estimated costs of the project to be bid, the Company adds its desired profit margin before submitting its bid. The Company believes that success in the competitive bidding process involves (i) being selective on projects bid upon in order to conserve resources, (ii) identifying projects which require the Company's specific expertise, (iii) becoming familiar with all aspects of the project to avoid costly bidding errors and (iv) analyzing the local market to determine the availability and cost of labor and the degree of competition. Since 1987, the Company has been awarded contracts for approximately 18% of the projects upon which it has bid. A substantial portion of the Company's revenue is derived from projects that involve ''fixed unit price'' contracts under which the Company is committed to provide materials or services at fixed unit prices (such as dollars per cubic yard of earth or concrete, or linear feet of pipe). The unit price is determined by a number of factors including haul distance between the construction site and the warehouses or supply facilities of local material suppliers and to or from disposal sites, site characteristics and the type of equipment to be used. While the fixed unit price contract generally shifts the risk of estimating the quantity of units for a particular project to the customer, any increase in the Company's unit cost over its unit bid price, whether due to inefficiency, faulty estimates, weather, inflation or other factors, must be borne by the Company. Most government contracts provide for termination of the contract at the election of the customer. In such event the Company is generally entitled to receive a small cancellation fee in addition to reimbursement for all costs it incurred on the project. Many of the Company's contracts are subject to completion requirements with liquidated damages assessed against the Company if schedules are not met. The Company has not been materially adversely affected by these provisions in the past. Contracts often involve work periods in excess of one year. Revenue on uncompleted fixed price contracts is recorded under the percentage of completion method of accounting. The Company begins to recognize revenue on its contracts when it first accrues direct costs. Pursuant to construction industry practice, a portion of billings, generally not exceeding 10%, may be retained by the customer until the project is completed and all obligations of the contractor are paid. The Company has not been subject to a loss in connection with any such retention. The Company acts as prime contractor on most of its construction projects and subcontracts certain jobs such as electrical, mechanical and some white paving work to others. As prime contractor, the Company bills the customer for work performed and pays the subcontractors from funds received from the customer. Occasionally the Company provides its services as a subcontractor to another prime contractor. As a subcontractor, the Company will generally receive the same or similar profit margin as it would as a prime contractor, although revenue to the Company will be smaller because the Company only contracts a part of the project. As prime contractor, the Company is responsible for the performance of the entire contract, including work assigned to subcontractors. Accordingly, the Company is subject to liability associated with the failure of subcontractors to perform as required under the contract. The Company occasionally requires its subcontractors to furnish bonds guaranteeing their performance, although affirmative action regulations require the Company to use its best efforts to hire minority subcontractors for a portion of the project and some of these subcontractors may not be able to obtain surety bonds. On average, the Company has required performance bonds for less than 10% of the dollar amount of its subcontracted work. However, the Company is generally aware of the skill levels and financial condition of its subcontractors through its direct inquiry of the subcontractors and contract partners of the subcontractors, as well as its review of financial information provided by the subcontractors and third party reporting services including credit reporting agencies and bonding companies. The Company has experienced subcontractor related losses of less than .5 of 1% of total revenue over the last five fiscal years including a loss of .8 of 1% of total revenue for the year ended December 31, 1993. As the Company expands into new geographic areas, it expects to obtain references and examine the financial condition of prospective subcontractors before entering into contracts 12 with them, requiring bonding as deemed appropriate. In connection with public sector contracts, the Company is required to provide various types of surety bonds guaranteeing its own performance. The Company's ability to obtain surety bonds depends upon its net worth, working capital, past performance, management expertise and other factors. Surety companies consider such factors in light of the amount of the Company's surety bonds then outstanding and the surety companies' current underwriting standards, which may change from time to time. See ''Insurance and Bonding''. INSURANCE AND BONDING The Company maintains general liability and excess liability insurance covering its owned and leased construction equipment and workers' compensation insurance in amounts it believes are consistent with its risks of loss and in compliance with specific insurance coverages required by its customers as a part of the bidding process. The Company carries liability insurance of $17 million per occurrence, which management believes is adequate for its current operations and consistent with the requirements of projects currently under construction by the Company. The Company is required to provide a surety bond on most of its projects. The Company's ability to obtain bonding, and the amount of bonding required, is primarily determined by the Company's management experience, net worth, liquid working capital (consisting of cash and accounts receivable in excess of accounts payable and accrued liabilities), the Company's performance history and the number and size of projects under construction. The larger the project and/or the more projects in which the Company is engaged, the greater the Company's bonding, net worth and liquid working capital requirements. Bonding requirements vary depending upon the nature of the project to be performed. The Company generally pays a fee to bonding companies of 1/2% to 1% of the amount of the contract to be performed. Because these fees are generally payable at the beginning of a project, the Company must maintain sufficient working capital to satisfy the fee prior to receiving revenue from the project. The Company has received single project bonding approval up to $100 million and aggregate program bonds totaling up to $250 million. MARKETING The Company obtains its projects primarily through the process of competitive bidding. Accordingly, the Company's marketing efforts are limited to subscribing to bid reporting services and monitoring trade journals and other industry sources for bid solicitations by various government authorities. In response to a bid request, the Company submits a proposal detailing its qualifications, the services to be provided and the cost of the services to the soliciting entity which then, based on its evaluation of the proposals submitted, awards the contract to the successful bidder. Generally, the contract for a project is awarded to the lowest bidder, although other factors may be taken into consideration such as the bidder's track record for compliance with bid specifications and procedures and its construction experience. In the precast and ready mix market, which the Company pursues through its PPI and RMI subsidiaries, a more focused effort is required. Certification of plants and facilities must be obtained and maintained in order to comply with certain project requirements. Membership and participation in selected industry associations help to increase the Company's exposure to potential clients and are two means by which the Company stays informed as to industry developments and future prospects within the marketplace. Customer care and service are important marketing tools for PPI and RMI which focus much more on private owners than public works. Building and maintaining customer relations and reputation for quality work are essential elements to the marketing efforts of these businesses. GOVERNMENT REGULATION The Company's operations are subject to compliance with regulatory requirements of federal, state and municipal authorities, including regulations covering labor relations, safety standards, affirmative action and the protection of the environment including requirements in connection with water discharge, air emissions and hazardous and toxic substance discharge. Under the Federal Clean Air Act and Clean Water Act, the Company must apply water or chemicals to reduce dust 13 on road construction projects and to contain water contaminants in run-off water at construction sites. The Company may also be required to hire subcontractors to dispose of hazardous wastes encountered on a project. The Company believes that it is in substantial compliance with all applicable laws and regulations. However, amendments to current laws or regulations imposing more stringent requirements could have a material adverse effect on the Company. EMPLOYEES On December 31, 1997, the Company employed approximately 97 salaried employees (including its management personnel and executive officers) and approximately 443 hourly employees. The number of hourly employees varies depending upon the amount of construction in progress. For the year ended December 31, 1997, the number of hourly employees ranged from approximately 173 to approximately 443 and averaged approximately 322. At December 31, 1997, the Company's employees did not belong to a labor union and the Company believes its relations with its employees are satisfactory. ITEM 2. PROPERTIES The following properties were leased by the Company at December 31, 1997: (1) 6,200 square feet of executive office space at 4411 South 40th Street, Suites D-10 and D-11, Phoenix, Arizona, 85040, expires in December 2000, at a monthly rental rate of $5,219 per month. (2) 1,800 square feet of office space at 1598 North 400 West, Suite C, Layton, Utah 84041, which expires in February 1998, at a monthly rental rate of $1,050 per month. (3) 2,000 square feet of office space for the Company's ready mix operations, at 3430 E. Flamingo , Suite 100, Las Vegas, Nevada, on a month-to-month basis, at a rental rate of $2,400 . (4) 2,000 square feet of office space at 1501 Highway 168, Moapa, Nevada 89025, on a month-to-month basis, at a rental rate of $800 per month, from a Company controlled by a principal stockholder. The Company believes that its rental rates are fair, reasonable and consistent with rates charged by unaffiliated third parties in the same market area. (5) 17,500 square feet of property at 1501 Highway 168, Moapa, Nevada 89025, on a month-to-month basis, at a rental rate of $2,500 per month, from a Company controlled by a principal stockholder. The Company uses the property for its manufacturing of prestressed concrete products. The Company believes that its rental rates are fair, reasonable and consistent with rates charged by unaffiliated third parties in the same market area. The Company owns approximately five acres of land at 109 W. Delhi, North Las Vegas, NV 89030, which is used for the manufacturing of ready mix concrete. The Company owns approximately 24.5 acres of property in Moapa, Nevada, which is currently being readied for its intended use. The Company has determined that the above properties are suitable and adequate for their intended use. ITEM 3. LEGAL PROCEEDINGS The Company is a party to legal proceedings in the ordinary course of its business. The Company believes that the nature of these proceedings (which generally relate to disputes between the Company and its subcontractors, material suppliers or customers regarding payment for work performed or materials supplied) are typical for a construction firm of its size and scope, and that none of these proceedings are material to its financial condition. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS There were no matters submitted to a vote of security holders, through the solicitation of proxies or otherwise, during the fourth quarter of the fiscal year ended December 31, 1997. 14 PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS The Company's Common Stock has been listed on the Nasdaq National Market since October 1995 and is traded under the symbol "MVCO". The following table represents the high and low closing prices for the Company's common stock on the Nasdaq National Market.
1995 1996 1997 - ----------------------------------------------------------------- HIGH LOW HIGH LOW HIGH LOW ------------------------------------------------- First Quarter... 6 5/8 5 5 5/8 3 9/16 Second Quarter.. 6 5/8 5 5 7/8 3 1/2 Third Quarter... 7 3/8 4 7/8 6 1/4 5 5/16 Fourth Quarter.. 7 5 1/8 5 1/2 3 5/8 6 9/16 5 1/2
HOLDERS OF RECORD As of February 27, 1998 there were more than 900 record and beneficial owners of the Company's Common Stock. ITEM 6. SELECTED FINANCIAL DATA
YEARS ENDED DECEMBER 31, PROFORMA - ------------------------------------------ COMBINED (1) 1993 1994 1995 1996 1997 --------------------------------------------------------------------------- Income Statement Data: Revenues.................................. $ 60,474,750 $ 80,220,521 $ 90,048,523 $ 133,723,645 $ 149,979,395 Gross Profit.............................. 3,461,503 5,472,878 4,354,455 2,810,585 7,434,944 Income (loss) from Operations............. (230,934) 4,704,425 2,364,676 (331,525) 1,867,958 Interest Expense.......................... 3,727 500,000 1,116,464 611,828 624,048 Income (loss) before income taxes (2)..... 60,501 4,565,398 1,608,997 (106,863) 1,930,986 Net income (loss)......................... 37,511 2,824,776 1,059,347 (85,228) 1,211,615 Basic net income (loss) per common share.. $0.02 $0.84 $0.65 $(0.02) $0.34 Diluted net income (loss) per common share.................................... $0.02 $0.84 $0.65 $(.02) $0.33 Basic weighted average shares outstanding (3).......................... 1,675,000 3,350,000 1,641,663 3,601,250 3,601,250 Diluted weighted average shares outstanding.............................. 1,675,000 3,350,000 1,641,663 3,601,250 3,651,360 Financial Position Data: 1993 1994 1995 1996 1997 --------------------------------------------------------------------------- Working capital (deficiency).............. $ 5,617,286 $ (3,348,451) $ 11,319,107 $ 8,738,820 $ 6,847,137 Total assets.............................. 19,664,666 22,375,168 28,909,786 42,121,334 49,063,197 Long-term debt............................ - - 3,689,055 4,631,377 5,847,659 Stockholders' equity (deficit)............ 6,809,481 (232,770) 11,761,997 11,676,769 12,888,384
15 (1) Effective October 1, 1994, the Company acquired all the outstanding shares of Meadow Valley Contractors, Inc. ("MVC") in a transaction accounted for by the purchase method of accounting whereby the basis of certain assets was revalued for accounting purposes. To arrive at this proforma presentation, the MVC financial statements for the 1994 period prior to October 1, 1994 have been combined with the Company's financial statements for the period ending December 31, 1994. See Note 2 to the Company's Consolidated Financial Statements. (2) Includes the effect of proforma income tax adjustments reflecting additional income taxes that would have been reported had MVC been subject to federal and state income taxes for the periods presented through September 30, 1994. Prior to October 1, 1994, MVC was a S Corporation and, therefore, did not pay income taxes. (3) The average shares outstanding and net income (loss) per share are computed upon the number of shares of the Company's Common Stock outstanding as of December 31, 1994, including the assumed issuance of 500,000 shares of restricted Common Stock in the MVC acquisition, which were issued during October 1995. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS GENERAL The following is a summary of certain information contained in this Report and is qualified in its entirety by the detailed information and financial statements that appear elsewhere herein. Except for the historical information contained herein, the matters set forth in this Report include forward-looking statements within the meaning of the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements are subject to risks and uncertainties that may cause actual results to differ materially. These risks and uncertainties are detailed throughout the Report and will be further discussed from time to time in the Company's periodic reports filed with the Commission. The forward-looking statements included in the Report speak only as of the date hereof. The Company was incorporated in Nevada on September 15, 1994. On October 1, 1994, the Company purchased all of the outstanding Common Stock of Meadow Valley Contractors, Inc. ("MVC"), for $11.5 million comprised of a $10 million promissory note and $1.5 million paid by the issuance of 500,000 restricted shares of the Company's Common Stock valued at $3.00 per share. MVC was founded in 1980 as a heavy construction contractor and has been engaged in that activity since inception. References to the Company's history include the history of MVC. The Company is a heavy construction contractor specializing since 1980 in structural concrete construction of highway bridges and overpasses and the paving of highways and airport runways. The Company generally serves as the prime contractor for public sector customers (such as federal, state and local governmental authorities) in the states of Nevada, Arizona, Utah and New Mexico. The Company believes that specializing in structural concrete construction has contributed significantly to its revenue growth and provides it with an advantage in the competitive bidding process. However, such specialization limits the types and sizes of projects upon which the Company bids and may be a competitive disadvantage for projects in which the amount of work proposed to be completed by the prime contractor (as compared to the amount of work which will be subcontracted by the prime contractor) is a consideration in the bidding process. The Company primarily seeks public sector customers because public sector projects are less cyclical than private sector projects, payment is more reliable, work required by the project is generally standardized and little marketing expense is incurred in obtaining projects. In 1996, the Company acquired certain assets of AKR Contracting ("AKR"), an unaffiliated Company in Phoenix, Arizona. AKR specializes in earthwork, grading and paving of residential subdivisions, commercial centers and has become increasingly involved in small publicly funded projects in Arizona and New Mexico. Through AKR, the Company entered into operating leases for a portable hot mix asphalt plant and related paving equipment and a rubberized asphalt plant. The asphalt paving capabilities provide the Company the opportunity to expand its existing geographic market. The Company believes increased competitiveness and revenues will be generated on projects that call for large quantities of asphaltic concrete, recycled asphalt or rubberized asphalt. 16 In 1996, the Company formed Ready Mix, Inc. ("RMI") as a wholly-owned subsidiary. RMI manufactures and distributes ready-mix concrete in Las Vegas, NV, and targets markets such as concrete subcontractors, prime contractors, home builders, commercial and industrial property developers, pool builders and homeowners. RMI began operations from its first location in March 1997. Financed with internal funds, a $2 million line of credit, notes payable and operating leases, the Company intends for RMI to operate from two sites using at least 40 mixer trucks. In 1996, the Company formed Prestressed Products Incorporated ("PPI") as a wholly-owned subsidiary. PPI designs, manufactures and erects precast prestressed concrete building components for use on commercial, institutional and public construction projects throughout the Southwest. Product lines include architectural and structural building components and prestressed bridge girders for highway construction. During 1997, PPI began operations with a precast yard and concrete batch plant located on leased property adjacent to the Company's office in Moapa, Nevada. During 1997, financed through internal funds and operating leases, the Company obtained equipment and experienced personnel to enter the concrete or "white" paving market. By performing white paving work, the Company may be able to increase its project revenue and earnings, reduce reliance on white paving subcontractors and improve the likelihood of being awarded projects in which the amount of work proposed to be completed on a project by the prime contractor is a consideration in the competitive bidding process. The Company has historically relied upon a small number of projects to generate a significant portion of its revenue. For instance, revenue generated from six projects represented 56% of the Company's revenue for the year ended December 31, 1997. Results for any one calender quarter may fluctuate widely depending upon the stage of completion of the Company's active projects. RESULTS OF OPERATIONS The following table sets forth statement of operations data expressed as a percentage of revenues for the periods indicated:
YEARS ENDED DECEMBER 31, --------------------------- 1995 1996 1997 ---- ---- ---- Revenues.............................. 100.00% 100.00% 100.00% Cost of contract revenues............. 95.16 97.90 95.04 Gross profit.......................... 4.84 2.10 4.96 General and administrative expenses... 2.21 2.35 3.71 Income (loss) from operations......... 2.63 (.25) 1.25 Interest income....................... .52 .56 .44 Interest expense...................... (1.24) (.46) (.42) Other income.......................... .07 .07 .01 Prior offering costs.................. (.19) - - Income (loss) before income taxes..... 1.79 (.08) 1.29 Net income (loss) after income taxes.. 1.18 (.06) .81
YEAR ENDED DECEMBER 31, 1997 COMPARED TO YEAR ENDED DECEMBER 31, 1996 Revenue and Backlog. Revenue increased 12% to $150.0 million for the year ended December 31, 1997, from $133.7 million for the year ended December 31, 1996. The increase results primarily from a $12.0 million increase in revenue generated from construction materials production and manufacturing sold to non- affiliates. 17 Gross Profit. As a percentage of revenue, gross profit increased from 2.10% in 1996 to 4.96% in 1997. The increase results primarily from an increase in MVCI and RMI combined gross profit margins from 2.10% in 1996 to 5.38% in 1997 or an increase of 156%, offset by a gross loss of 11.5% related to the precast operations of PPI. The gross loss related to the precast operations of PPI were he result of (i) sales, marketing, estimating, administrative and organizational costs preliminary to revenue generation (ii) staffing and training production crews and related loss of productivity (iii) non-compensable differences between preliminary (pre-bid) and final designs of PPI (iv) a compressed completion schedule creating extraordinary increases in the number of personnel, compounded by poor productivity of inexperienced crews requiring an inordinate amount of overtime. Gross profit margins can be affected by construction delays and difficulties due to weather conditions, availability of materials, the timing of work performed by other subcontractors and the physical and geological condition of the construction site. General and Administrative Expenses. General and administrative expenses increased from $3,142,110 for 1996 to $5,566,986 for 1997. The increase results, in part, from the costs associated with the Company's wholly-owned ready-mix concrete and precast/prestressed products subsidiaries, the Company's continued expansion in the Utah market and expansion into the white paving market. The additional costs associated with the Company's wholly-owned ready-mix concrete and precast/prestressed products subsidiaries and the continued expansion in the Utah market and expansion into the white paving market amounted to approximately $1,684,000. The remainder of the increase was $365,948 in corporate labor and a variety of costs including costs in excess of $79,000 related to enhancements in the safety plan, $75,000 related to non-recurring consulting studies and $53,000 related to corporate travel. Interest Income and Expense. Interest income decreased in 1997 to $666,397 from $741,270 due to a decrease in cash reserves resulting primarily from the expansion into the production and manufacturing of construction materials and the purchase of equipment. Interest expense increased slightly in 1997 to $624,048 from $611,828, due primarily to financing certain of the property and equipment additions. Net Income (Loss) After Income Taxes. Net income after taxes for 1997 was $1,211,615 compared to a net loss after income taxes for 1996 of $(85,228). The increase primarily resulted from the increase in revenue and gross profit margin offset, in part, by higher general and administrative expenses as discussed above. YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995 Revenue and Backlog. Revenue increased 48.5% to $133.7 million for the year ended December 31, 1996, from $90.0 million for the year December 31, 1995. The increase results primarily from a $30.0 million increase in backlog at December 31, 1995 over the prior year and the award of approximately $100 million of projects during the first nine months of 1996, compared to approximately $58 million during the same period in 1995. In addition, the Company's expansion into earthwork, grading and paving of residential subdivisions, commercial centers and in small public works, through the acquisition of certain assets of AKR, contributed approximately $11.2 million to the Company's overall revenue growth. Revenue is impacted in any one period by the backlog at that beginning of that period. Gross Profit. As a percentage of revenue, gross profit decreased from 4.84% in 1995 to 2.10% in 1996. The decrease results primarily from cost overruns attributable to (i) omission of costs from bid estimates (ii) difficulty in assembling an adequate skilled labor force due to physical location of a construction site (iii) erroneous assumptions at bid time regarding the Company's construction productivity (iv) cost related plan or specification errors and (v) inadequate field and corporate supervision, offset by a 2.2% increase in gross profit margins due to the settlement of a claim which is related to a project completed during 1995. Gross profit margins can be affected by construction delays and difficulties due to weather conditions, availability of materials, the timing of work performed by other subcontractors and the physical and geological condition of the construction site. General and Administrative Expenses. General and administrative expenses increased from $1,989,779 for 1995 to $3,142,110 for 1996. The increase results, in part, from the start-up costs associated with the Company's development stage subsidiaries, the Company's expansion in the Utah market and, through AKR, expansion into earthwork, grading and paving of residential subdivisions, commercial centers and small publicly funded projects. The additional costs associated with the development stage companies, expansion in the Utah market and AKR amounted to $719,572, consisting primarily of salaries and office set up costs. In addition to the start-up costs, the Company sustained increased general and administrative expenses due to the 48.5% growth in revenue.Interest Income and Expense. Interest income increased in 1996 to $741,270 from $470,150 18 due to invested proceeds from the Public Offering and increased funds held in retention. Interest expense decreased in 1996 to $611,828 due to the November 1995 repayment of $6.5 million of loans issued in connection with the acquisition of Meadow Valley Contractors, Inc. Net Income (Loss) After Income Taxes. Net loss after income taxes for 1996 was $(85,228) compared to net income of $1,059,347 for 1995. The decrease resulted primarily from the lower gross profit and higher general and administrative expenses discussed above. LIQUIDITY AND CAPITAL RESOURCES The Company's primary need for capital has been to finance growth in its core business as a heavy construction contractor and its expansion into the other construction and construction related businesses heretofore discussed. Annual revenue has grown from approximately $90.0 million in 1995 to $150.0 million in 1997. Growth has resulted in the need for additional capital to finance increased receivables, retentions and capital expenditures, and to address fluctuations in the work-in-process billing cycle. The following table sets forth, for the periods presented, certain items from the Statements of Cash Flows of the Company.
YEARS ENDED DECEMBER 31, ----------------------------------------- 1995 1996 1997 ---- ---- ---- Cash Provided By (Used in) Operating Activities........ $(1,789,928) $(3,085,632) 5,967,880 Cash Used in Investing Activities...................... (527,120) (584,470) (2,816,474) Cash Provided By (Used in) Financing Activities........ 2,935,528 (247,283) (1,738,860)
Although the Company may experience increased profitability as operations increase, cash may be reduced to finance receivables and for customer cash retention required under contracts subject to completion. Management continually monitors the Company's cash requirements to maintain adequate cash reserves, and the Company believes that its cash balances were and, together with the operating lines of credit described below, are sufficient. Cash used in operating activities during 1995amounted to $1.8 million, primarily the result of an increase in accounts receivable and net costs in excess of billings of $5.5 million, offset by net income of $1.0 million, depreciation and amortization of $.4 million and an increase in accounts payable $2.2 million. Cash used in operating activities during 1996 amounted to $3.1 million, primarily the result of an increase in accounts receivable and prepaid expenses of $14.1 million, offset by an increase in accounts payable of $8.6 million along with an increase in net billings in excess of costs of $1.6 million and depreciation and amortization of $.8 million. Cash provided by operating activities during 1997 amounted to $6.0 million, primarily the result of net income of $1.2 million, depreciation and amortization of $1.4 million, a decrease in accounts receivable of $.7 million, an increase in net billings in excess of costs $2.3 million and a $.4 million decrease in deferred income tax payable. Cash used in investing activities during 1995 included the purchase of property and equipment of $1.4 million offset by a decrease in restricted cash of $.3 million and repayment of $.6 million of loans to related parties. Cash used in investing activities during 1996 amounted to $.6 million, primarily the result of the purchase of property and equipment of $1.9 million offset by a decrease in restricted cash of $1.2 million and proceeds from the sale of property and equipment of $.1 million. The decrease in restricted cash during 1995 and 1996 is a result of the partial release of funds held in escrow accounts pending the completion of three large volume projects. Cash used in investing activities during 1997 amounted to $2.8 million related primarily to equipment purchases. 19 Cash provided by financing activities during 1995 amounted to approximately $3.0 million and included proceeds from the initial public offering of the Company's securities in the amount of $9.5 million, net of offering costs, offset by repayment of $6.5 million of loans from a related party issued in connection with the MVC acquisition. Cash used in financing activities during 1996 included lease payments of $.1 million and equipment loan payments of $.1 million, a total of approximately $.2 million. Cash used in financing activities during 1997 amounted to $1.7 million including $.5 million repayment of a loan from a related party and $.5 million prepayment of a loan from a related party and repayments of notes payable and capital lease obligations in the amount of $.7 million. The Company currently has available from a commercial bank a $2,000,000 operating line of credit at an interest rate of the commercial bank's prime plus .50%, and a $2,000,000 operating line of credit at an interest rate of the commercial bank's prime plus .25% ("lines of credit"). At December 31, 1997, and as of the filing date of this report, nothing had been drawn on either of the lines of credit. Under the lines of credit, the Company is required to maintain certain levels of working capital, to promptly pay all its obligations and is precluded from conveying, selling or leasing all or substantially all of its assets. At December 31, 1997, the Company was in full compliance with all such covenants and there are no material covenants or restrictions in the lines of credit which the Company believes would impair its operations. The lines of credit expire September 15, 1998. The Company anticipates that a substantial portion of the costs associated with a planned second ready-mix plant and related equipment will be financed through bank financing and operating leases. In addition, the Company is currently leasing approximately 40 ready-mix trucks with estimated annual lease payments of $800,000. Management believes that the Company's cash reserves, together with its lines of credit and its capacity to enter into other financing arrangements are sufficient to fund its cash requirements for the next 12 months and that the Company's working capital will be adequate to fund its short term and long term requirements. NEW ACCOUNTING PRONOUNCEMENTS Accounting for Stock-Based Compensation: Statements of Financial Accounting Standards No. 123, "Accounting for Stock-Based Compensation" ("SFAS No. 123") establishes a fair value method of accounting for stock-based compensation plans and for transactions in which an entity acquires goods or services from nonemployees in exchange for equity instruments. The Company adopted this accounting standard January 1, 1996. SFAS 123 also encourages, but does not require companies to record compensation cost for stock-based employee compensation. The Company has chosen to continue to account for stock-based compensation utilizing the intrinsic value method prescribed in Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees." Accordingly, compensation cost for stock options is measured as the excess, if any, of the fair market price of the Company's stock at the date of grant over the amount an employee must pay to acquire the stock. Earnings per Share: Statement of Financial Accounting Standards No. 128, "Earnings per Share," ("SFAS 128") issued by the FASB is effective for financial statements with fiscal years and interim periods beginning after December 15, 1997. Early adoption is not permitted. SFAS 128 provides for the calculation of Basic and Diluted earnings per share. Basic earnings per share includes no dilution and is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted earnings per share reflects the potential dilution of securities that could share in the earnings of an entity, similar to fully diluted earning per share. The Company adopted this accounting standard on December 15, 1997. Disclosure of Information about Capital Structure: Statement of Financial Accounting Standard No. 129, "Disclosure of Information about Capital Structure," ("SFAS 129") issued by the FASB is effective for financial statements ended December 15, 1997. The new standard reinstates various securities disclosure requirements previously in effect under Accounting Principles Board Opinion No. 15, which has been superseded by SFAS No. 128. The Company does not expect adoption of SFAS No. 129 to have a material effect, if any, on its financial position or results of operations. 20 Reporting Comprehensive Income: Statement of Financial Accounting Standard No. 130, "Reporting Comprehensive Income," ("SFAS 130") issued by the FASB is effective for financial statements with fiscal years beginning after December 15, 1997. Earlier application is permitted. SFAS 130 establishes standards for reporting and display of comprehensive income and its components in a full set of general- purpose financial statements. The Company does not expect adoption of SFAS 130 to have a material effect, if any, on its financial position or results of operations. Disclosures about Segments of an Enterprise and Related Information: Statement of Financial Accounting Standards No. 131, "Disclosures about Segments of an Enterprise and Related Information," ("SFAS 131") issued by the FASB is effective for financial statements with fiscal years beginning after December 15, 1997. Earlier application is permitted. SFAS 131 requires that public companies report certain information about operating segments, products, services and geographical areas in which they operate and their major customers. The Company does not expect adoption of SFAS 131 to have a material effect, if any, on its financial position or results of operations. IMPACT OF INFLATION The Company believes that inflation has not had a material impact on its operations. However, substantial increases in labor costs, worker compensation rates and employee benefits, equipment costs, material or subcontractor costs could adversely affect the operations of the Company for future periods. YEAR 2000 The Company's accounting software currently does not utilize a four digit year field; however, the Company has been assured by the software manufacturer that all necessary modifications for the year 2000 have been or will be made and tested timely. KNOWN AND ANTICIPATED FUTURE TRENDS AND CONTINGENCIES Subject to the Company's profitability and increases in retained earnings, it is anticipated that the bonding limits will increase proportionately, thereby allowing the Company to bid on and perform more and larger projects. The Company believes that government of all levels will continue to be the primary source of funding for infrastructure work. The reauthorization of the ISTEA bill is essential to the well-being of the industry and the Company. "See Market Overview". The competitive bidding process will continue to be the dominant method for determining contract award. However, other innovative bidding methods will be tried and may gain favor, namely "A Plus B" contracts, where the bidders' proposals are selected on both price and scheduling criteria. Design-build projects are becoming more common and are likely to increase in frequency. Design-build projects also tend to be of more worth to the owner when the contract size is substantial, usually $50 million or more. In light of the rising needs for infrastructure work throughout the nation and the tendency of the current needs to out-pace the supply of funds, it is anticipated that alternative funding sources will continue to be sought. Funding for infrastructure development in the United States is coming from a growing variety of innovative sources. An increase of funding measures is being undertaken by various levels of government to help solve traffic congestion and related air quality problems. Sales taxes, fuel taxes, user fees in a variety of forms, vehicle license taxes, private toll roads and quasi-public toll roads are examples of how transportation funding is evolving. Transportation norms are being challenged by federally mandated air quality standards. Improving traffic movement, eliminating congestion, increasing public transit, adding or designating high occupancy vehicle (HOV) lanes to encourage car pooling and other solutions are being considered in order to help meet EPA-imposed air quality standards. 21 SEASONALITY The construction industry is seasonal, generally due to inclement weather occurring in the winter months. Accordingly, the Company may experience a seasonal pattern in its operating results with lower revenue in the first and fourth quarters of each calendar year than other quarters. Quarterly results may also be affected by the timing of bid solicitations by governmental authorities, the stage of completion of major projects and revenue recognition policies. Results for any one quarter, therefore, may not be indicative of results for other quarters or for the year. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The Company's Consolidated Financial Statements are indexed on page F-1. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE Not Applicable PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT Information on directors and executive officers of the Company will be included under the caption "Directors and Executive Officers" of the Company's definitive Proxy Statement relating to the Annual Meeting of Shareholders for the year ended December 31, 1997, which is hereby incorporated by reference. ITEM 11. EXECUTIVE COMPENSATION Information on executive compensation will be included under the caption "Compensation of Executive Officers" of the Company's definitive Proxy Statement relating to the Annual Meeting of Shareholders for the year ended December 31, 1997, which is hereby incorporated by reference. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT Information on beneficial ownership of the Company's voting securities by each director and all officers and directors as a group, and by any person known to beneficially own more than 5% of any class of voting security of the Company will be included under the caption "Beneficial Ownership of the Company's Securities" of the Company's definitive Proxy Statement relating to the Annual Meeting of the Shareholders for the year ended December 31, 1997, which is hereby incorporated by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS Information on certain relationships and related transactions including information with respect to management indebtedness will be included under the caption "Information Regarding Indebtedness of Management to the Company" of the Company's definitive Proxy Statement relating to the Annual Meeting of Shareholders for the year ended December 31, 1997, which is hereby incorporated by reference. 22 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a)(1) Financial Statements See Item 8 of Part II hereof. (a)(2) Financial Statement Schedules The schedules specified under Regulation S-X are either not applicable or immaterial to the Company's consolidated financial statements for the years ended December 31, 1995, 1996 and 1997. (b) Reports on Form 8-K There were no reports on Form 8-K filed during the fourth quarter ended December 31, 1997. (c) Exhibits
EXHIBIT NO. TITLE - ----------- --------------------------------------------------------------------------------- 1.01 Form of Underwriting Agreement with Spelman & Co., Inc. (1) 1.02 Form of Selected Dealer Agreement (1) 1.03 Form of Representatives' Warrant (1) 1.04 Consulting Agreement with the Representative (1) 1.05 Form of Amended Underwriting Agreement (Spelman & Co., Inc.) (1) 1.06 Form of Amended Representatives' Warrant (Spelman & Co., Inc.)(1) 1.07 Form of Underwriting Agreement (H D Brous & Co., Inc.)(1) 1.08 Form of Selected Dealer Agreement (H D Brous & Co., Inc.)(1) 1.09 Form of Representatives' Unit Warrant (H D Brous & Co., Inc.)(1) 1.10 Warrant Agreement (1) 1.11 Agreement Among Underwriters (1) 1.12 Form of Underwriting Agreement (H D Brous & Co., Inc. and Neidiger/Tucker/Bruner, Inc.)(1) 1.13 Form of Agreement Among Underwriters (H D Brous & Co., Inc. and Neidiger/Tucker/Bruner, Inc.)(1) 1.14 Form of Selected Dealer Agreement (H D Brous & Co., Inc. and Neidiger/Tucker/Bruner, Inc.)(1) 1.15 Form of Representatives' Warrant Agreement, including Form of Representatives'Warrant (H D Brous & Co., Inc. and Neidiger/Tucker/Bruner, Inc.)(1) 3.01 Articles of Incorporation and Amendments thereto of the Registrant (1) 3.02 Bylaws of the Registrant (1) 3.03 Bylaws of the Registrant Effective October 20, 1995 5.01 Opinion of Gary A. Agron, regarding legality of the Common Stock (includes Consent)(1) 5.02 Opinion of Gary A. Agron, regarding legality of the Units, Common Stock and Warrants (1) 10.01 Incentive Stock Option Plan (1)
23
EXHIBIT NO. TITLE - ----------- ------------------------------------------------------------------------------------ 10.02 Office lease of the Registrant (1) 10.03 Office lease of the Registrant (1) 10.04 Contract between the State of Arizona and the Registrant dated October 22, 1993 (1) 10.05 Surety Bond between the Registrant and St. Paul Fire & Marine Insurance Company (1) 10.06 Surety Bond between the Registrant and United States Fidelity and Guaranty Company (1) 10.07 Contract between Clark County, Nevada and the Registrant dated October 6, 1992 (1) 10.08 Surety Bond between the Registrant and St. Paul Fire and Marine Insurance Company (1) 10.09 Agreement between Salt Lake City Corporation and the Registrant dated May 5, 1993 (1) 10.10 Contract between Clark County, Nevada and the Registrant dated July 21, 1993 (1) 10.11 Contract between Clark County, Nevada and the Registrant dated August 17, 1993 (1) 10.12 Promissory Note executed by Robert C. Lewis and Richard C. Lewis (1) 10.13 Promissory Note executed by Moapa Developers, Inc. (1) 10.14 Promissory Note executed by Paul R. Lewis (1) 10.15 Contract between Clark County, Nevada and the Registrant dated September 7, 1993 (1) 10.16 Agreement between Salt Lake City Corporation and the Registrant dated February 11, 1994 (1) 10.17 Contract between Northwest/Cheyenne Joint Venture and the Registrant dated March 16, 1994 (1) 10.18 Contract between Clark County, Nevada and the Registrant dated April 5, 1994 (1) 10.19 Statutory Payment Bond dated September 8, 1994 (1) 10.20 Employment Agreement with Mr. Lewis (1) 10.21 Employment Agreement with Mr. Black (1) 10.22 Employment Agreement with Mr. Terril (1) 10.23 Employment Agreement with Mr. Nelson (1) 10.24 Employment Agreement with Ms. Danley (1) 10.25 Employment Agreement with Mr. Jessop (1) 10.26 Employment Agreement with Mr. Larson (1) 10.27 Stock Purchase Agreement (1) 10.28 Form of Lockup Letter (1) 10.29 Revolving Credit Loan Agreement (1) 10.30 Contract Award Notification - Arizona Department of Transportation (1) 10.31 Contract Award Notification - McCarran International Airport (1) 10.32 Contract Award Notification - City of Henderson (1) 10.33 Contract between Registrant and Arizona Department of Transportation (1) 10.34 Contract between Registrant and Arizona Department of Transportation (1) 10.35 Office Lease of the Registrant (1)
24
EXHIBIT NO. TITLE - ----------- ------------------------------------------------------------------------------------ 10.36 Contract between Registrant and Arizona Department of Transportation (2) 10.37 Contract Award Notification - Clark County (2) 10.38 Joint Venture Agreement (2) 10.39 Employment Agreement with Mr. Grasmick (2) 10.40 Contract between Registrant and Clark County, Nevada (2) 10.41 Contract between Registrant and Clark County, Nevada (2) 10.42 Contract between Registrant and Utah Department of Transportation (2) 10.43 Contract between Registrant and Arizona Department of Transportation (2) 10.44 Promissory Note executed by Nevada State Bank (2) 10.45 Escrow Settlement Documents and related Promissory Note (2) 10.46 Conveyor Sales Contract and Security Agreement (2) 10.47 CAT Financial Installment Sale Contract (2) 10.48 Second and Third Amendments to Office Lease of the Registrant (2) 10.49 Lease Agreement with US Bancorp (2) 10.50 Lease Agreement with CIT Group (2) 10.51 CAT Financial Installment Sale Contract 10.52 CAT Financial Installment Sale Contract 10.53 CAT Financial Installment Sale Contract 10.54 CAT Financial Installment Sale Contract 10.55 CAT Financial Installment Sale Contract 10.56 Escrow Settlement Documents 10.57 Promissory Note executed by General Electric Capital Corporation 10.58 Promissory Note executed by General Electric Capital Corporation 10.59 Promissory Note executed by General Electric Capital Corporation 10.60 Promissory Note executed by General Electric Capital Corporation 10.61 Promissory Note executed by Nevada State Bank 10.62 KDC Sales Contract 10.63 Lease Agreement with CIT 10.64 Lease Agreement with CIT 10.65 Contract between Registrant and Utah Department of Transportation 10.66 Contract between Registrant and Clark County, Nevada 10.67 Contract between Registrant and New Mexico State Highway and Transportation Department 10.68 Contract between Registrant and Salt Lake City Corporation 10.69 Contract between Registrant and Utah Department of Transportation 10.70 Contract between Registrant and Arizona Department of Transportation 10.71 Contract between Registrant and Nevada Department of Transportation 10.72 Employment and Indemnification Agreements with Mr. Nelson
25
EXHIBIT NO. TITLE - ----------- ------------------------------------------------------------------------------------ 10.73 Employment and Indemnification Agreements with Mr. Terril 10.74 Employment and Indemnification Agreements with Mr. Lewis 10.75 Employment and Indemnification Agreements with Mr. Larson 10.76 Employment and Indemnification Agreements with Mr. Burnell 16.01 Letter re: Change in Certifying Accountant (1) 21.01 Subsidiaries of the Registrant (1) 23.01 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.02 Consent of Semple & Cooper (Meadow Valley Corporation)(1) 23.03 Consent of Gary A. Agron, Esq. (See 5.01, above.)(1) 23.04 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.05 Consent of BDO Seidman LLP (Meadow Valley Corporation)(1) 23.06 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.07 Consent of BDO Seidman LLP (Meadow Valley Corporation) (1) 23.08 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.09 Consent of BDO Seidman LLP (Meadow Valley Corporation and Meadow Valley Contractors, Inc.)(1) 23.10 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.11 Consent of BDO Seidman LLP (Meadow Valley Corporation and Meadow Valley Contractors, Inc.)(1) 23.12 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.13 Consent of BDO Seidman LLP (Meadow Valley Corporation and Meadow Valley Contractors, Inc.)(1) 23.14 Consent of Semple & Cooper (Meadow Valley Contractors, Inc.)(1) 23.15 Consent of DO Seidman LLP (Meadow Valley Corporation and Meadow Valley Contractors, Inc.)(1) 27 Financial Data Schedule
- ----------------- (1) Incorporated by reference to the Company's Registration Statement on Form S-1, File Number 33-87750 declared effective on October 16, 1995. (2) Incorporated by reference to the Company's December 31, 1996 Annual Report on Form 10-K. 26 Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized
MEADOW VALLEY CORPORATION /s/ Bradley E. Larson ------------------------------------- Bradley E. Larson President and Chief Executive Officer Date: March 13, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
/s/ Bradley E. Larson /s/ Gary W. Burnell - ----------------------------------------------- ------------------------------------- Bradley E. Larson, Gary W. Burnell, Director, President and Chief Executive Officer Vice President, Treasurer and Chief Financial Officer Date: March 13, 1998 Date: March 13, 1998 /s/ Kenneth D. Nelson /s/ Paul R. Lewis - ----------------------------------------------- ------------------------------------- Kenneth D. Nelson, Paul R. Lewis, Director, Chief Administrative Officer and Director and Chief Operating Officer Vice President Date: March 13, 1998 Date: March 13, 1998 /s/ Alan A. Terril /s/ Gary A. Agron - ----------------------------------------------- ------------------------------------- Alan A. Terril, Gary A. Agron, Director and Vice President - Nevada Operations Director Date: March 13, 1998 Date: March 13, 1998 /s/ Charles E. Cowan /s/ Scott E. Miller - ----------------------------------------------- ------------------------------------- Charles E. Cowan, Scott E. Miller, Director Director Date: March 13, 1998 Date: March 13, 1998 /s/ Julie L. Bergo - ----------------------------------------------- Julie L. Bergo, Secretary and Principal Accounting Officer Date: March 13, 1998
27 INDEX TO FINANCIAL STATEMENTS MEADOW VALLEY CORPORATION AND SUBSIDIARIES
Independent Certified Public Accountants' Report................................................. F-2 Consolidated Balance Sheets at December 31, 1996 and 1997........................................ F-3 Consolidated Statements of Operations for the years ended December 31, 1995, 1996, and 1997...... F-4 Consolidated Statements of Changes in Stockholders' Equity for the years ended December 31, 1995, 1996 and 1997............................................................................. F-5 Consolidated Statements of Cash Flows for the years ended December 31, 1995, 1996 and 1997...... F-6 Notes to Consolidated Financial Statements....................................................... F-8
F-1 INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' REPORT To the Stockholders and Board of Directors of Meadow Valley Corporation We have audited the accompanying consolidated balance sheets of Meadow Valley Corporation and Subsidiaries as of December 31, 1996 and 1997, and the related consolidated statements of operations, changes in stockholders' equity and cash flows for each of the three years ended December 31, 1995, 1996 and 1997. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with generally accepted audit standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the consolidated financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall consolidated financial statement presentation. We believe our audits of the consolidated financial statements provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of Meadow Valley Corporation and Subsidiaries as of December 31, 1996 and 1997, and the consolidated results of their operations, and cash flows for each of the three years ended December 31, 1995, 1996 and 1997, in conformity with generally accepted accounting principles. BDO Seidman, LLP Los Angeles, California February 19, 1998 F-2 MEADOW VALLEY CORPORATION AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS
DECEMBER 31, DECEMBER 31, Assets: 1996 1997 ----------------------------- Current Assets: Cash and cash equivalents (Notes 1 and 3).................................... $ 1,440,519 $ 2,853,065 Restricted cash (Notes 1 and 3).............................................. 1,415,577 1,719,768 Accounts receivable, net (Notes 1, 4 and 18)................................. 26,861,458 26,244,473 Prepaid expenses and other................................................... 836,086 925,923 Note receivable - related party (Notes 12 and 22)............................ 257,575 257,575 Note receivable - other (Note 11)............................................ 1,855 2,009 Costs and estimated earnings in excess of billings on uncompleted contracts (Note 5)........................................................ 3,726,328 4,758,917 ----------------------------- Total Current Assets............................................... 34,539,398 36,761,730 Property and equipment, net (Notes 1, 6, 9 and 12)................................ 5,278,390 10,211,468 Refundable deposits............................................................... 247,740 127,737 Note receivable - other (Note 11)................................................. 210,602 209,264 Goodwill, net (Note 1)............................................................ 1,820,850 1,740,821 Tradename, net (Note 1)........................................................... 24,354 12,177 ----------------------------- Total Assets...................................................... $42,121,334 $49,063,197 ============================= Liabilities and Stockholders' Equity: Current Liabilities: Notes payable - related party (Notes 2 and 12)............................... $ 500,000 $ 500,000 Notes payable - other (Note 9)............................................... 266,220 818,846 Obligations under capital leases (Note 14)................................... 254,364 405,204 Accounts payable (Notes 7 and 12)............................................ 19,629,807 19,536,421 Accrued liabilities (Notes 8 and 12)......................................... 1,777,334 1,993,182 Billings in excess of costs and estimated earnings on uncompleted contracts (Note 5)......................................................... 3,372,853 6,660,940 ----------------------------- Total Current Liabilities......................................... 25,800,578 29,914,593 Deferred income taxes (Notes 1 and 13)............................................ 12,610 412,561 Obligations under capital leases (Note 14)........................................ 643,910 973,847 Note payable - related party (Notes 2 and 12)..................................... 3,000,000 2,000,000 Notes payable - other (Note 9).................................................... 987,467 2,873,812 ----------------------------- Total Liabilities.................................................. 30,444,565 36,174,813 ----------------------------- Commitments and contingencies (Notes 12, 14 and 16) Stockholders' Equity: Preferred stock - $.001 par value; 1,000,000 shares authorized, none issued and outstanding (Note 15).................................................. Common stock - $.001 par value; 15,000,000 shares authorized, 3,601,250 Issued and outstanding (Notes 15 and 19)................................... 3,601 3,601 Additional paid-in capital................................................... 10,943,569 10,943,569 Capital adjustments (Note 2)................................................. (799,147) (799,147) Retained earnings............................................................ 1,528,746 2,740,361 ----------------------------- Total Stockholders' Equity......................................... 11,676,769 12,888,384 ----------------------------- Total Liabilities and Stockholders' Equity......................... $42,121,334 $49,063,197 =============================
The Accompanying Notes are an Integral Part of the Consolidated Financial Statements F-3 MEADOW VALLEY CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1995 1996 1997 ---------------------------------------------- Contract Revenues (Note 18)....................... $90,048,523 $133,723,645 $149,979,395 Cost of Contract Revenues (Note 12)............... 85,694,068 130,913,060 142,544,451 ---------------------------------------------- Gross Profit (Note 21)............................ 4,354,455 2,810,585 7,434,944 General and Administrative Expenses............... 1,989,779 3,142,110 5,566,986 ---------------------------------------------- Income (loss) from Operations (Note 21)........... 2,364,676 (331,525) 1,867,958 ---------------------------------------------- Other Income (Expense): Interest income................................... 470,150 741,270 666,397 Interest expense (Note 12)........................ (1,116,464) (611,828) (624,048) Other income...................................... 63,635 95,220 20,679 Offering costs written off........................ (173,000) - - ---------------------------------------------- (755,679) 224,662 63,028 ---------------------------------------------- Income (loss) before income taxes................. 1,608,997 (106,863) 1,930,986 Income tax (expense) benefit (Note 13)............ (549,650) 21,635 (719,371) ---------------------------------------------- Net Income (loss)................................. $ 1,059,347 $ (85,228) $ 1,211,615 ============================================== Basic Net Income (loss) per common share.......... $.65 $(.02) $.34 ============================================== Diluted Net income (loss) per common share........ $.65 $(.02) $.33 ============================================== Basic Weighted Average Common Shares Outstanding (Note 20)........................................ 1,641,663 3,601,250 3,601,250 ============================================== Diluted Weighted Average Common Shares Outstanding (Note 20)....................................... 1,641,663 3,601,250 3,651,360 ==============================================
The Accompanying Notes are an Integral Part of the Consolidated Financial Statements F-4 MEADOW VALLEY CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY FOR THE YEARS ENDED DECEMBER 31, 1995, 1996 AND 1997
COMMON STOCK ---------------------- NUMBER OF SHARES PAID-IN CAPITAL RETAINED OUTSTANDING VALUE CAPITAL ADJUSTMENT EARNINGS ------------------------------------------------------------- Balance at December 31, 1994........... 1,175,000 $1,175 $ 10,575 $(799,147) $ 554,627 Sale of Units to the public (Note 15).. 1,926,250 1,926 9,433,494 Issuance of common stock (Note 2)...... 500,000 500 1,499,500 Net income for the year................ 1,059,347 --------------------------------------------------------------- Balance at December 31, 1995........... 3,601,250 3,601 10,943,569 (799,147) 1,613,974 Net loss for the year.................. (85,228) --------------------------------------------------------------- Balance at December 31, 1996........... 3,601,250 3,601 10,943,569 (799,147) 1,528,746 Net income for the year................ 1,211,615 --------------------------------------------------------------- Balance at December 31, 1997........... 3,601,250 $3,601 $10,943,569 $(799,147) $2,740,361 ===============================================================
The Accompanying Notes are an Integral Part of the Consolidated Financial Statements F-5 MEADOW VALLEY CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, ---------------------------------------------- 1995 1996 1997 ---------------------------------------------- Increase (Decrease) in Cash and Cash Equivalents: Cash flows from operating activities: Cash received from customers.............................. $ 84,602,809 $ 122,322,752 $ 152,899,056 Cash paid to suppliers and employees...................... (85,317,317) (124,394,729) (146,785,012) Interest received......................................... 459,997 685,738 615,008 Interest paid............................................. (1,195,119) (642,344) (658,622) Income taxes paid......................................... (340,298) (1,057,049) (102,550) Net cash provided by (used in) operating activities.. (1,789,928) (3,085,632) 5,967,880 ---------------------------------------------- Cash flows from investing activities: Purchase of AKR Contracting tradename..................... - (36,531) - Decrease (increase) in restricted cash.................... 316,996 1,213,972 (304,191) Collection of notes receivable - related party............ 600,000 - - Collection of note receivable - other..................... - 876 1,184 Additional cost of acquisition............................ (136,058) - - Proceeds from sale of property and equipment.............. 86,202 126,431 322,960 Proceeds from sale of rental real estate.................. - 16,866 - Purchase of property and equipment........................ (1,175,377) (1,906,084) (2,836,427) Purchase of real estate................................... (218,883) - - Net cash used in investing activities................ (527,120) (584,470) (2,816,474) ---------------------------------------------- Cash flows from financing activities: Deferred offering costs................................... (1,166,498) - - Proceeds from sale of units to public..................... 10,633,000 - - Repayment of capital lease obligations.................... (30,974) (124,333) (319,428) Repayment of notes payable - other........................ - (122,950) (419,432) Repayment of note payable - related party................. (6,500,000) - (1,000,000) Net cash provided by (used in) financing activities.. 2,935,528 (247,283) (1,738,860) ---------------------------------------------- Net increase (decrease) in cash and cash equivalents........... 618,480 (3,917,385) 1,412,546 Cash and cash equivalents at beginning of period............... 4,739,424 5,357,904 1,440,519 Cash and cash equivalents at end of period..................... $ 5,357,904 $ 1,440,519 $ 2,853,065 ==============================================
The Accompanying Notes are an Integral Part of the Consolidated Financial Statements F-6 MEADOW VALLEY CORPORATION AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, ------------------------------------------- 1995 1996 1997 ------------------------------------------- Increase (Decrease) in Cash and Cash Equivalents (Continued): Reconciliation of Net Income (Loss) to Net Cash Provided by (used in) Operating Activities: Net Income (loss)............................................ $ 1,059,347 $ (85,228) $ 1,211,615 Adjustments to reconcile net income to net cash provided by (used in) operating activities: Depreciation and amortization........................... 367,015 769,173 1,356,504 Gain on sale of property and equipment.................. (17,913) (38,170) (24,890) Gain on sale of rental real estate...................... - (11,316) - Offering costs written off.............................. 173,000 - - Changes in Assets and Liabilities, net of acquisition of subsidiary: Accounts receivable..................................... (4,026,929) (13,095,536) 668,374 Prepaid expenses and other.............................. 17,037 (968,247) (187,115) Costs and estimated earnings in excess of billings on uncompleted contracts................................. (1,647,081) (1,005,150) (1,032,589) Interest payable........................................ (78,655) (30,516) (34,574) Accounts payable........................................ 2,155,191 8,644,352 (93,386) Accrued liabilities..................................... (188,168) 767,429 250,422 Billings in excess of costs and estimated earnings on uncompleted contracts................................. 182,574 2,654,059 3,288,087 Interest receivable..................................... 5,302 (55,532) (51,389) Income tax receivable................................... - - 216,870 Income tax payable...................................... 269,017 (609,315) - Deferred income tax payable............................. (59,665) (21,635) 399,951 -------------- ------------ ----------- Net cash provided by (used in) operating activities.......... $(1,789,928) $ (3,085,632) $ 5,967,880 -------------------------------------------
The Accompanying Notes are an Integral Part of the Consolidated Financial Statements F-7 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: Nature of the Corporation: Meadow Valley Corporation (the "Company") was organized under the laws of the State of Nevada on September 15, 1994. The principal business purpose of the Company is to operate as the holding Company of Meadow Valley Contractors, Inc. (MVC), Ready Mix, Inc. (RMI) and Prestressed Products Incorporated (PPI). MVC is a general contractor, primarily engaged in the construction of structural concrete highway bridges and overpasses, and the paving of highways and airport runways in the states of Nevada, Arizona, Utah and New Mexico. MVC was acquired by the Company as of October 1, 1994. ( See Note 2) RMI is a producer and retailer of ready-mix concrete operating in the Las Vegas metropolitan area. PPI manufactures and erects prestressed products, primarily in the Southern Nevada area. Principles of Consolidation: The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries MVC, RMI and PPI. Intercompany transactions and balances have been eliminated in consolidation. Accounting Estimates: The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Revenue and Cost Recognition: Revenues and costs from fixed-price and modified fixed-price construction contracts are recognized for each contract on the percentage-of-completion method, measured by the percentage of costs incurred to date to the estimated total of direct costs. Direct costs include, among other things, direct labor, field labor, equipment rent, subcontracting, direct materials, and direct overhead. General and administrative expenses are accounted for as period costs and are, therefore, not included in the calculation of the estimates to complete construction contracts in progress. Project losses are provided in the period in which such losses are determined, without reference to the percentage-of- completion. As contracts can extend over one or more accounting periods, revisions in costs and earnings estimated during the course of the work are reflected during the accounting period in which the facts that required such revisions become known. The asset "costs and estimated earnings in excess of billings on uncompleted contracts" represents revenue recognized in excess of amounts billed. The liability "billings in excess of costs and estimated earnings on uncompleted contracts" represents billings in excess of revenues recognized. Restricted Cash: At December 31, 1996 and December 31, 1997 funds in the amount of $1,415,577 and $1,719,768 were held in trust, in lieu of retention, on some of the Company's construction contracts and will be released to the Company after the contracts are completed. Accounts Receivable: Included in accounts receivable are trade receivables that represent amounts billed but uncollected on completed construction contracts and construction contracts in progress. The Company follows the allowance method of recognizing uncollectible accounts receivable. The allowance method recognizes bad debt expense based on a review of the individual accounts outstanding, and the Company's prior history of uncollectible accounts receivable. As of December 31, 1996, no allowance was established for potentially uncollectible accounts receivable because, in the opinion of management, all accounts were considered fully collectible. As of December 31, 1997, $35,441 has been established for potentially uncollectible accounts receivable. F-8 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): Property and Equipment: Property and equipment are recorded at cost. Depreciation is provided for on the straight-line method, over the following estimated useful lives. Plant 15 years Computer equipment 5-7 years Equipment 3-10 years Vehicles 5 years Office furniture and equipment 5-7 years Leasehold Improvements 5 years Goodwill: Goodwill represents the excess of the costs of acquiring Meadow Valley Contractors, Inc. over the fair value of its net assets and is being amortized on the straight-line method over twenty-five (25) years. Amortization expense charged to operations for the years ended December 31, 1995, 1996 and 1997 amounted to $81,390, $80,029 and $80,029. The carrying value of goodwill will be periodically reviewed by the Company and impairments, if any, will be recognized when expected future operating cash flows derived from goodwill is less than its carrying value. Tradename: On January 2, 1996, the Company acquired the tradename of AKR Contracting in the amount of $36,531. The tradename amortization is provided for on a straight line basis over three years. Amortization expense charged to operations in each of the years ended December 31, 1996 and 1997 was $12,177. Income Taxes: The Company accounts for income taxes in accordance with the Financial Accounting Standards No. 109, "Accounting for Income Taxes" (SFAS 109). SFAS 109 requires the Company to recognize deferred tax assets and liabilities for the expected future tax consequences of events that have been recognized in a Company's financial statements or tax returns. Under this method, deferred tax assets and liabilities are determined based on the difference between the financial statement carrying amounts and tax basis of assets and liabilities using enacted tax rates in effect in the years in which the differences are expected to reverse. The Company files consolidated tax returns with MVC, RMI and PPI for federal and state tax reporting purposes. Cash Flow Recognition: For purposes of the statement of cash flows, the Company considers all highly liquid instruments purchased with an initial maturity of three (3) months or less to be cash equivalents. Fair Value of Financial Instruments: The Financial Accounting Standards Board issued SFAS No. 107, Disclosures about Fair Value of Financial Statements, which was effective December 31, 1995. This statement requires the disclosure of estimated fair values for all financial instruments for which it is practicable to estimate fair value. The carrying amounts of financial instruments including cash, restricted cash, accounts receivable, costs and estimated earnings in excess of billings on uncompleted contracts, prepaid expenses and other, current portion of notes receivable, current maturities of long-term debt, accounts payable, billings in excess of costs and estimated earnings on uncomplete contracts and accrued liabilities approximate fair value because of their short maturity. F-9 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED): Fair Value of Financial Instruments (Continued): The carrying amount of long-term debt approximates fair value because the interest rates on these instruments approximate the rates at which the Company could borrow at December 31, 1996 and 1997. Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed of: Statement of Financial Accounting Standards No.121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of" (SFAS 121) establishes new guidelines regarding when impairment losses on Long-Lived assets, which include plant and equipment, and certain identifiable intangible assets, should be recognized and how impairment losses should be measured. The Company has adopted this accounting standard and its effects on the financial position and results of operations were immaterial. Stock-Based Compensation: Statements of Financial Accounting Standards No. 123, "Accounting for Stock- Based Compensation" (SFAS No. 123) establishes a fair value method of accounting for stock-based compensation plans and for transactions in which an entity acquires goods or services from nonemployees in exchange for equity instruments. The Company adopted this accounting standard on January 1, 1996. SFAS 123 also encourages, but does not require companies to record compensation cost for stock-based employee compensation. The Company has chosen to continue to account for stock-based compensation utilizing the intrinsic value method prescribed in Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to Employees." Accordingly, compensation cost for stock options is measured as the excess, if any, of the fair market price of the Company's stock at the date of grant over the amount an employee must pay to acquire the stock. Earnings per Share: Statement of Financial Accounting Standards No. 128, "Earnings per Share," ("SFAS 128") issued by the FASB is effective for financial statements with fiscal years and interim periods beginning after December 15, 1997. Early adoption is not permitted. SFAS 128 provides for the calculation of Basic and Diluted earnings per share. Basic earnings per share includes no dilution and is computed by dividing income available to common shareholders by the weighted average number of common shares outstanding for the period. Diluted earnings per share reflects the potential dilution of securities that could share in the earnings of an entity, similar to fully diluted earnings per share. The Company adopted this accounting standard on December 15, 1997. The effect of adopting this standard was that diluted earnings per share decreased by $.01 over the calculations under APB opinion No.15. There was no effect on prior years. Disclosure of Information about Capital Structure: Statement of Financial Accounting Standard No. 129, "Disclosure of Information about Capital Structure," ("SFAS 129") issued by the FASB is effective for financial statements ended December 15, 1997. The new standard reinstates various securities disclosure requirements previously in effect under Accounting Principles Board Opinion No. 15, which has been superseded by SFAS No. 128. The Company does not expect adoption of SFAS No. 129 to have a material effect, if any, on its financial position or results of operations. Reporting Comprehensive Income: Statement of Financial Accounting Standard No. 130, "Reporting Comprehensive Income," ("SFAS 130") issued by the FASB is effective for financial statements with fiscal years beginning after December 15, 1997. Earlier application is permitted. SFAS 130 establishes standards for reporting and display of comprehensive income and its components in a full set of general-purpose financial statements. The Company does not expect adoption of SFAS 130 to have a material effect, if any, on its financial position or results of operations. Disclosures about Segments of an Enterprise and Related Information: Statement of Financial Accounting Standards No. 131, "Disclosures about Segments of an Enterprise and Related Information," ("SFAS 131") issued by the FASB is effective for financial statements with fiscal years beginning after December 15, 1997. Earlier application is permitted. SFAS 131 requires that public companies report certain information about operating segments, products, services and geographical areas in which they operate and their major customers. The Company does not expect adoption of SFAS 131 to have a material effect, if any, on its financial position or results of operations. F-10 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 2. ACQUISITION: On October 24, 1994, the Company signed a Stock Purchase Agreement to purchase all of the outstanding common stock of MVC. The acquisition was effective as of October 1, 1994. The purchase price included a $10,000,000 promissory note, bearing interest at ten percent (10%) per annum, and due ten days after the closing of the Initial Public Offering. Also included in the aforementioned Stock Purchase Agreement was a $1,500,000 stock note payable, bearing interest at six percent (6%) per annum, and due ten days after the closing of the Initial Public Offering. Payment of the stock note payable was made by the issuance of 500,000 shares of restricted common stock. Prior to the initial public offering the promissory notes were secured by all of the outstanding common stock of MVC. (See Note 12) The acquisition of MVC was accounted for using the purchase method of accounting under APB Opinion 16 "Business Combinations". Accordingly, the assets and liabilities were valued at their fair values for the portion of the acquisition relating to new stockholders of the Company's interest which resulted in increasing the basis of the historical book value of the net assets acquired (all goodwill) in the amount of $1,864,676. In addition, as of October 1, 1994, $799,147 was charged to stockholders' equity, representing the proportionate amount of the net purchase price in excess of the cost of the interest of certain stockholders of the Company who were also stockholders of MVC prior to the acquisition. During the year ended December 31, 1995 the Company incurred additional costs relating to the acquisition in the amount of $136,058. 3. CONCENTRATION OF CREDIT RISK: The Company maintains cash balances at various financial institutions. Deposits not to exceed $100,000 for each institution are insured by the Federal Deposit Insurance Corporation. At December 31, 1996 and December 31, 1997, the Company has uninsured cash, cash equivalents, and restricted cash in the amount of $5,434,509 and $8,465,267. 4. ACCOUNTS RECEIVABLE: Following is a summary of receivables at December 31, 1996 and December 31, 1997.
DECEMBER 31, DECEMBER 31, 1996 1997 ---------------------------- Contracts in progress.................. $17,079,502 $18,169,773 Contracts in progress - retention...... 7,590,488 5,605,988 Completed contracts.................... 927,230 29,361 Completed contracts - retention........ 436,832 138,163 Other receivables...................... 827,406 2,336,629 ---------------------------- 26,861,458 26,279,914 Less: Allowance for doubtful accounts.. - (35,441) ---------------------------- $26,861,458 $26,244,473 ============================
F-11 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 5. CONTRACTS IN PROGRESS: Costs and estimated earnings in excess of billings and billings in excess of costs and estimated earnings on uncompleted contracts consist of the following:
DECEMBER 31, DECEMBER 31, 1996 1997 ------------------------------- Costs incurred on uncompleted contracts.. $ 164,191,228 $ 248,840,680 Estimated earnings to date............... 7,179,053 12,345,608 ------------------------------- 171,370,281 261,186,288 Less: billings to date................... (171,016,806) (263,088,311) ------------------------------- $ 353,475 $ (1,902,023) =============================== Included in the accompanying balance sheet under the following captions: Costs and estimated earnings in excess of billings on uncompleted contracts.... $ 3,726,328 $ 4,758,917 Billings in excess of costs and estimated earnings on uncompleted contracts............................... (3,372,853) (6,660,940) ------------------------------- $ 353,475 $ (1,902,023) =============================== 6. PROPERTY AND EQUIPMENT: Property and equipment consists of the following: DECEMBER 31, DECEMBER 31, 1996 1997 ------------------------------- Land..................................... $ 562,901 $ 788,379 Plant.................................... - 2,106,476 Computer equipment....................... 173,905 292,538 Equipment................................ 3,542,594 6,518,913 Vehicles (Note 14)....................... 1,824,078 2,433,510 Office furniture and equipment........... 42,897 45,816 Leasehold improvements................... 42,028 60,689 ------------------------------- 6,188,403 12,246,321 Accumulated depreciation................. (972,413) (2,034,853) ------------------------------- 5,215,990 10,211,468 Construction in progress................. 62,400 - ------------------------------- $ 5,278,390 $ 10,211,468 ===============================
F-12 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 7. ACCOUNTS PAYABLE: Accounts payable consist of the following:
DECEMBER 31, DECEMBER 31, 1996 1997 ---------------------------- Trade...................................................... $13,456,213 $14,245,993 Retentions................................................. 6,173,594 5,290,428 ---------------------------- $19,629,807 $19,536,421 ============================ 8. ACCRUED LIABILITIES: Accrued liabilities consist of the following: DECEMBER 31, DECEMBER 31, 1996 1997 ---------------------------- Salaries and wages......................................... $ 772,265 $1,002,738 Interest................................................... 113,717 79,143 Taxes...................................................... 225,149 315,156 Insurance.................................................. 276,525 358,948 Legal fees................................................. 180,000 - Other...................................................... 209,678 237,197 ---------------------------- $1,777,334 $1,993,182 ============================ 9. NOTES PAYABLE - OTHER: Notes payable - other consist of the following DECEMBER 31, DECEMBER 31, 1996 1997 ----------------------------- Notes payable, interest rates ranging from 6.382% to 10% with monthly payments of $79,110, due dates ranging from 12/18/99 to 1/1/03, collateralized by equipment........................................... $ 833,687 $3,144,590 Notes payable, interest rates ranging from 9.0% to 9.33% with monthly payments of $9,958, due dates ranging from 8/15/03 to 12/31/04, collateralized by land................................................ 420,000 548,068 ----------------------------- 1,253,687 3,692,658 Less: current portion.................................................. (266,220) (818,846) $ 987,467 $2,873,812 =============================
Following are maturities of long-term debt for each of the next 5 years: 1998................ $ 818,846 1999................ 880,027 2000................ 769,229 2001................ 650,770 2002................ 454,401 Subsequent to 2002.. 119,385 $3,692,658 ============= F-13 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 10. LINES OF CREDIT: At December 31, 1997, the Company had available from a commercial bank a $2,000,000 operating line of credit at an interest rate of the commercial bank's prime plus .50%, and a $2,000,000 operating line of credit at an interest rate of the commercial bank's prime plus .25% ("lines of credit"). At December 31, 1997, nothing had been drawn on either of the lines of credit. Under the lines of credit, the Company is required to maintain certain levels of working capital, to promptly pay all its obligations and is precluded from conveying, selling or leasing all or substantially all of its assets. At December 31, 1997, the Company was in compliance with all such covenants. The lines of credit expires September 15, 1998. 11. NOTE RECEIVABLE - OTHER: Note receivable - other consist of the following:
DECEMBER 31, DECEMBER 31, 1996 1997 ----------------------------- 8% note receivable, 84 monthly payments in the amount of $1,565 commencing July 19, 1996, balloon payment in the amount of $197,282 due June 19, 2003, collateralized by deed of trust................... $212,457 $211,273 Less: current portion................................................ (1,855) (2,009) ----------------------------- $210,602 $209,264 =============================
12. RELATED PARTY TRANSACTIONS: Note receivable - related party: Note receivable - related party consists of a 6% note receivable from a corporate officer, dated December 15, 1994, due June 15, 1997, collateralized by 100,000 share of the Company's common stock. During June 1997, the Company extended the due date to June 15, 1998. Note receivable - related party was $257,575 at December 31, 1996 and 1997. (See Note 21) Equipment: During the year ended December 31, 1996 the Company purchased equipment used in the construction business from a related party in the amount of $299,800. Professional Services: During the year ended December 31, 1996 and 1997, a related party rendered professional services to the Company in the amounts of $26,654 and $17,528. Subcontractor/Supplier: Various related parties performed construction work for the Company as a subcontractor or provided materials and equipment used in the construction business during the years ended December 31, 1995, 1996 and 1997, in the amounts of $119,614, $81,581 and $19,352. Included in accounts payable at December 31, 1996 and 1997 are amounts due to related parties, in the amount of $5,808 and $5,495. Accrued Interest: During the years ended December 31, 1995, 1996 and 1997, the Company incurred interest expense in the amounts of $1,063,716, $438,699 and $412,842 related to notes payable to a principal stockholder. Included in accrued liabilities at December 31, 1996 and December 31, 1997 are amounts due to related parties, in the amount of $86,301 and $61,644. Included in accounts receivable at December 31, 1996 and 1997 are amounted due from a related party, in the amount of $15,455 and $15,455. F-14 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 12. RELATED PARTY TRANSACTIONS (CONTINUED): Note payable - related party:
DECEMBER 31, DECEMBER 31, 1996 1997 ----------------------------- 12.5% note payable from a related party, due October 16, 2000, due in equal installments of $1,000,000 plus accrued interest................. $3,500,000 $2,500,000 Less: current portion.................................................. (500,000) (500,000) ----------------------------- $3,000,000 $2,000,000 =============================
Commitments: The Company leases office space in Moapa, Nevada on a month-to-month basis from a Company controlled by a principal stockholder with monthly payments of $800. The lease terms also require the Company to pay common area maintenance, taxes, insurance and other costs. Rent expense under the lease for the year ended December 31, 1995, 1996 and 1997 amounted to $14,400, $9,600 and $9,600, respectively. The Company leases additional space for its prestressed concrete operations on a month-to-month basis from a Company controlled by a principal stockholder with monthly payments of $2,500. Rent expense under the lease for the years ended December 31, 1996 and 1997 amounted to $15,000 and $30,000. 13. INCOME TAXES: The provisions for income taxes (benefit) consist of the following:
FOR THE YEARS ENDED DECEMBER 31, 1995 1996 1997 ------------------------------------ Current: Federal................... $541,272 $ - 280,327 State..................... 68,043 - 39,093 ------------------------------------ 609,315 - 319,420 Deferred....................... (59,665) (21,635) 399,951 ------------------------------------ $549,650 $(21,635) $719,371 ====================================
The Company's deferred tax liability consists of the following, all of which is long-term in nature:
DECEMBER 31, 1996 1997 -------------------------- Deferred tax asset: Net operating loss carryforward.. $ 153,167 - Other............................ - 13,822 Deferred tax liability: Depreciation..................... (165,777) (426,383) -------------------------- Net deferred tax liability............ $(12,610) $(412,561) ==========================
For the years ended December 31, 1995, 1996 and 1997, the effective tax rate differs from the federal statutory rate primarily due to state income taxes. F-15 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 14. COMMITMENTS: The Company is currently leasing office space in Phoenix, Arizona under a separate non-cancelable operating lease agreement expiring in December 2000. During August 1997, the Company amended the original lease. The amended lease agreement provides for monthly payments of $5,219 through December 31, 1999 and $5,547 from January 1, 2000 through December 31, 2000. The lease also requires the Company to pay common area maintenance, taxes, insurance and other costs. Rent under the aforementioned operating lease was $14,622, $44,481 and $56,576 for the years ended December 31, 1995, 1996 and 1997. The Company also is currently leasing office space in Layton, Utah under a separate non-cancelable operating lease agreement providing for monthly payments of $1,050 expiring February 1998. Rent under the aforementioned operating lease was $12,600 for the year ended December 31, 1997. The Company has entered into employment contracts with each of its executive officers that provide for an annual salary, issuance of the Company's common stock and various other benefits and incentives. At December 31, 1996 and 1997, the total commitments, excluding benefits and incentives amount to $735,416 and $1,582,500. The Company is the lessee of vehicles and equipment under capital leases expiring in various years through 2002. The assets and liabilities under a capital lease are initially recorded at the lower of the present value of the minimum lease payments or the fair value of the asset. Each asset is depreciated over its expected useful life. Depreciation on the assets under capital leases charged to expense in 1996 and 1997 was $114,175 and $298,283. At December 31, 1996 and 1997, property and equipment included $897,749 and $1,401,948, net of accumulated depreciation, of vehicles and equipment under capital leases. 14. COMMITMENTS: Minimum future lease payments under capital leases as of December 31, 1997 for each of the next five years and in aggregate are:
YEAR ENDED DECEMBER 31, AMOUNT --------------------------------------------------------- 1998........................................ $ 523,108 1999........................................ 478,752 2000........................................ 390,667 2001........................................ 202,963 2002........................................ 44,560 ------------- Total minimum payments...................... 1,640,050 Less: executory costs....................... (42,229) ------------- Net minimum lease payments.................. 1,597,821 Less: amount representing interest.......... (218,770) ------------- Present value of net minimum lease payment.. $1,379,051 =============
15. STOCKHOLDERS' EQUITY: Preferred Stock: The Company has authorized 1,000,000 shares of $.001 par value preferred stock to be issued, with such rights, preferences, privileges, and restrictions as determined by the Board of Directors. F-16 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 15. STOCKHOLDERS' EQUITY (CONTINUED): Initial Public Offering: During October 1995, the Company completed an initial public offering ("Offering") of Units of the Company's securities. Each unit consisted of one share of $.001 par value common stock and one redeemable common stock purchase warrant ("Warrant"). Each Warrant is exercisable to purchase one share of common stock at $7.20 per share for a period of 5 years from the date of the Offering. The Offering included the sale of 1,926,250 Units at $6.00 per Unit. Net proceeds of the Offering, after deducting underwriting commissions and offering expenses of $2,122,080, amounted to $9,435,420. In connection with the Offering, the Company granted the underwriters warrants to purchase 167,500 shares of common stock at $7.20 per share for a period of 4 years from the date of the Offering. 16. LITIGATION MATTERS: The Company is defending a claimed preference in connection with a payment made to it by an insurance Company in the approximate amount of $100,000. The Company believes that the payment is not a preference, and is vigorously defending the action. 17. STATEMENT OF CASH FLOWS: Non-Cash Investing and Financing Activities: The Company recognized investing and financing activities that affected assets, liabilities, and equity, but did not result in cash receipts or payments. These non-cash activities are as follows: During the year ended December 31, 1995, the Company issued 500,000 share of restricted common stock in satisfaction of a $1,500,000 discounted stock note payable. The Company acquired the stock of MVC for a $10 million note payable and a 500,000 share stock note payable valued at $1,500,000 effective October 1, 1994. (See Note 2) During the year ended December 31, 1995, the Company exchanged certain machinery and equipment with a book value of $20,000, plus cash of $74,160, for similar equipment with a cost of $94,160, which represents the book value of equipment given up plus the cash price. During the years ended December 31, 1995 and 1996, the Company financed the purchase of construction vehicles and equipment in the amount of $290,533 and $1,719,685. During the year ended December 31, 1996, the Company financed the purchase of land in the amount of $420,000. During the year ended December 31, 1996, the Company financed the sale of real estate in the amount of $213,333. During the year ended December 31, 1997, the Company financed the purchase of property, plant and equipment in the amount of $3,658,608. F-17 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 18. SIGNIFICANT CUSTOMERS: For the years ended December 31, 1995, 1996 and 1997, the Company recognized a significant portion of its revenue from three Customers (shown as an approximate percentage of total revenue):
FOR THE YEARS ENDED DECEMBER 31, 1995 1996 1997 -------------------------------- A............ 33.2% 23.7% 27.2% B............ 39.1% 41.3% 32.2% C............ - - 14.4%
At December 31, 1996 and December 31 ,1997, amounts due from the aforementioned Customers included in restricted cash and accounts receivables, are as follows:
DECEMBER 31, 1996 1997 -------------------------- A............ $ 3,835,166 $ 4,276,679 B............ 14,280,369 13,735,567 C............ - 2,936,029
19. STOCK OPTION PLAN: In November, 1994, the Company adopted a Stock Option Plan providing for the granting of both qualified incentive stock options and non-qualified stock options. The Company reserved 700,000 shares of its common stock for issuance under the Plan. Granting of the options is at the discretion of the Board of Directors and may be awarded to employees and consultants. Consultants may receive only non-qualified stock options. The maximum term of the stock options are 10 years and may be exercised as follows: 33.3% after one year of continuous service, 66.6% after two years of continuous service and 100.0% after three years of continuous service. The exercise price of each option is equal to the market price of the Company's common stock on the date of grant. The following summarizes the stock option transactions:
WEIGHTED SHARES AVERAGE PRICE PER SHARE ---------------------------- Outstanding December 31, 1995.. 239,700 $6.25 Granted................... 241,025 5.36 Forfeited................. (1,800) 5.36 --------- Outstanding December 31, 1996.. 478,925 5.87 Granted................... 80,000 5.87 Forfeited................. (34,900) 5.87 --------- Outstanding December 31, 1997.. 524,025 5.28 =========
F-18 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 19. STOCK OPTION PLAN (CONTINUED): Information relating to stock options at December 31, 1997 summarized by exercise price are as follows:
OUTSTANDING EXERCISABLE ------------------------------------------- ------------------------- WEIGHTED AVERAGE WEIGHTED AVERAGE -------------------------- ---------------- EXERCISE EXERCISE PRICE PER SHARE SHARES LIFE (YEAR) PRICE SHARES EXERCISE PRICE - --------------------------------------------------------------------------------------------------- $6.25 217,200 10 $6.25 144,800 $6.25 $4.375 to $5.41 226,825 10 $5.36 75,608 $5.36 $5.31 80,000 10 $5.31 - - - --------------------------------------------------------------------------------------------------- $4.375 to $6.25 524,025 10 $5.28 220,408 $5.26 ===================================================================================================
All stock options issued to employees have an exercise price not less than the fair market value of the Company's Common Stock on the date of grant. In accordance with accounting for such options utilizing the intrinsic value method, there is no related compensation expense recorded in the Company's financial statements for the year ended December 31, 1995, 1996 and 1997. Had compensation cost for stock-based compensation been determined based on the fair value of the options at the grant dates consistent with the method of SFAS 123, the Company's net income and earnings per share for the years ended December 31, 1995, 1996 and 1997 would have been reduced to the proforma amounts presented below:
1995 1996 1997 --------------------------------------- Net income (loss) As reported............. $1,059,347 $ (85,228) $1,211,615 Proforma................ $1.059,347 $(179,877) $ 989,003 Net income (loss) per share As reported............. $ .65 $ (.02) $ .34 Proforma................ $ .65 $ (.05) $ .26
The fair value of option grants is estimated as of the date of grant utilizing the Black-Scholes option-pricing model with the following weighted average assumptions for grants in 1995, 1996 and 1997: expected life of options of 5 years, expected volatility of 23.94%, risk-free interest rates of 8.0%, and a 0% dividend yield. The weighted average fair value at date of grant for options granted during 1995, 1996 and 1997 approximated $1.31, $1.23 and $1.01. 20. BASIC EARNINGS (LOSS) PER SHARE: The Company's basic net income (loss) per share at December 31, 1996 and 1997 was computed by dividing net income for the period by 3,601,250, the basic weighted average number of common shares outstanding during the period. Options to purchase 444,025 at a range of $4,375 to $6.25 per share were outstanding during 1996, but were not included in the computation of diluted net loss per common share because the options' exercise price was greater than the average market price of the common share. The Company's diluted net income per common share at December 31, 1997 includes 50,110 common shares that would be issued exercise of outstanding stock options. Options to purchase 217,200 at $6.25 per share were outstanding during 1997, but were not included in the computation of diluted net income per common share because the options' exercise price was greater than the average market price of the common share. 21. OTHER INFORMATIVE DISCLOSURES: During the years ended December 31, 1996 and 1997, the Company incurred substantial costs related to its prestressed products subsidiary, which was formed November 12, 1996. The following is a summary of that subsidiary's 1996 and 1997 results of operations:
1996 1997 ------------------------ Gross loss............ $ - $ (427,028) Loss from operations.. (76,453) (1,304,472)
F-19 MEADOW VALLEY CORPORATION AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED) 22. SUBSEQUENT EVENTS: During January 1998, the Company purchased equipment used in the construction business from a related party in the amount of $295,000. During January 1998, the note receivable-related party and related interest receivable was repaid to the Company in the amount of $273,368. (See Note 12) F-20 EX-10.51 2 CAT FINANCIAL INSTALLMENT SALE CONTRACT EXHIBIT 10.51 INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) PURCHASER(S): SELLER (DEALER): MEADOW VALLEY CONTRACTORS, INC. CASHMAN EQUIPMENT COMPANY P.O.BOX 60726 3101 EAST CRAIG ROAD P.O. BOX 4217 PHOENIX, AZ 95082 LAS VEGAS NV 89127-0217 County: MARICOPA - -------------------------------------------------------------------------------- Subject to the terms and conditions set forth below and on the reverse side hereof, Seller hereby sells the equipment described below (the "Unit" or "Units") to Purchaser, and Purchaser (if more than one, jointly and severally), having been offered both a cash sale price and a time sale price, hereby buys the Units from Seller on a time sale basis.
- ---------------------------------------------------------------------------------------------------------------------------- NEW (IF USED) DELIVERED OR FIRST MODEL DESCRIPTION OF UNIT(S) SERIAL# CASH SALE USED USED PRICE - ---------------------------------------------------------------------------------------------------------------------------- (1) USED 1996 IT28F Caterpillar Integrated Tool Carrier equipped 3Cl01822 99,850.00
FIRST DESCRIPTION OF ADDITIONAL SECURITY USED (MAKE MODEL & SERIAL NUMBER) Sub-Total............................... $ 99,850.00 - ---------------------------------------------------------- Sales Tax............................... $ 0.00 NONE 1. Total Cash Sale Price................... $ 99,850.00 Cash Down Pay 0.00 Net Trade-in Allow 0.00 2. Total Down Payment...................... $ 0.00 - ---------------------------------------------------------- 3. Unpaid Balance of Cash Price (1 - 2).... $ 99,850.00 FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 4. Official Fees (Specify)................. $ 250.00 USED (MAKE MODEL & SERIAL NUMBER) Documentation Fee 250.00 - ---------------------------------------------------------- 5. Physical Damage Insurance............... $ NONE 6. Principal Balance (Amount Financed) (3 + 4 + 5)........... $ 100,100.00 __________________________________________________________ 7. Financed Charge (Time Price Differential)............... $ 14,067.52 Trade-in Value 0.00 8. Time Balance Less Owing to (___n/a___) 0.00 (Total of Payment) (6 + 7).............. $ 114,167.52 Net Trade-in Allowance 0.00 9. Time Sale Balance (Total of Payment Price) (2 + 8)........ $ 114,167.52 Location of Units: Salt Lake City Airport 10. Annual Percentage Rate.................. 6.60% Salt Lake City , UT 84101 11. Date FINANCE CHARGE begins to accrue.... 9/20/97
Purchaser herby sells and conveys to Seller the above described Trade-in Equipment and warrants it to be free and clear of all claims, liens, security interests and encumbrances except to the extent shown above. 1. PAYMENT: Purchaser promises to pay to Seller at the address designated in writing by Seller the Time Balance (item 8 above) as follows [check (a) or (b)]: X (a) in 48 equal monthly Installments of $2,376.49 each, with the first - --- installment due on 10/20/97, and the balance of the Installments due on the like day of each month thereafter, (except no payments shall be due during the month(s) of (___n/a___)), until the entire indebtedness has been paid; or __ (b) in accordance with the Payment Schedule attached to this Contract. (Provisions of section 1 continued on reverse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urchaser(s) and Seller have duly executed this Contract as of 9/20, 1997. Purchaser(s): Seller: MEADOW VALLEY CONTRACTORS, INC. CASHMAN EQUIPMENT COMPANY By /s/ Gary W. Burnell By /s/ Andrea B. Price ------------------------------ ----------------------------------- Name (PRINT) GARY W. BURNELL Name (PRINT) ANDREA B. PRICE -------------------- ------------------------- Title VP/CEO Title ADMINISTRATIVE CONTROLLER --------------------------- -------------------------------- EX-10.52 3 CAT FINANCIAL INSTALLMENT CONTRACT EXHIBIT 10.52 INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) PURCHASER(S): SELLER (DEALER): MEADOW VALLEY CONTRACTORS, CASHMAN EQUIPMENT COMPANY INC. P.O. BOX 60726 3101 EAST CRAIG ROAD P.O. BOX 4217 PHOENIX, AZ 85082 LAS VEGAS NV 89127-0217 County: MARICOPA - -------------------------------------------------------------------------------- Subject to the terms and conditions set forth below and on the reverse side hereof, Seller hereby sells the equipment described below (the "Unit" or "Units") to Purchaser, and Purchaser (if more than one, jointly and severally), having been offered both a cash sale price and a time sale price, hereby buys the Units from Seller on a time sale basis. - -------------------------------------------------------------------------------- NEW (IF USED) DELIVERED OR FIRST MODEL DESCRIPTION OF UNIT(S) SERIAL# CASH SALE USED USED PRICE - -------------------------------------------------------------------------------- (1) USED 1995 RT100 Caterpillar TELESCOPIC HANDLER 1GJ01186 71,343.00 - ------------------------------------------------------------------------------------------------------------------------ FIRST DESCRIPTION OF ADDITIONAL SECURITY USED (MAKE, MODEL & SERIAL NUMBER) Sub Total.............................. $ 71,343.00 - ---------------------------------------------------------- NONE Sales Tax.............................. $ 0.00 1. Total Cash Sale Price.................. $ 71,343.00 Cash Down Pay Net Trade-In Allow 0.00 2. Total Down Payment..................... $ 0.00 - ---------------------------------------------------------- FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 3. Unpaid Balance of Cash Price (1-2)..... $ 71,343.00 USED (MAKE, MODEL & SERIAL NUMBER) - ---------------------------------------------------------- NONE 4. Official Fees (Specify)................ $ 250.00 DOCUMENTATION FEE 250.00 5. Physical Damage Insurance.............. $ 6. Principal Balance (Amount Financed) (3 + 4 + 5).......... $ 71,593.00 - ----------------------------------------------------------- 7. Finance Charge Trade-in Value 0.00 (Time Price Differential).............. $ 10,347.32 Less Owing to (___n/a___) 0.00 8. Time Balance Net Trade-in allowance 0.00 (Total of Payments) (5 + 7)............ $ 81,940.32 9. Time Sale Balance Location of Units: 4411 s. 40th ST STE D11 (Total of Payment Price (2 + 8)........ $ 81,940.32 PHOENIX, AZ 85040 MARICOPA 10. Annual Percentage Rate 6.78% 11. Date FINANCE CHARGE begins to accrue 8/12/97
PURCHASER HEREBY SELLS AND CONVEYS TO SELLER THE ABOVE DESCRIBED TRADE-IN EQUIPMENT AND WARRANTS IT TO BE FEE AND CLEAR OF ALL CLAIMS, LIENS, SECURITY INTERESTS AND ENCUMBRANCES EXCEPT TO THE EXTENT SHOWN ABOVE. 1. PAYMENT: Purchaser promises to pay to Seller at the address designated in writing by Seller the Time Balance (Item 8 above) as follows [check (a) or (b)]: X (a) In 48 equal monthly installments of $1,707.09 each, with the first - --- installment due on 9/27/97, and the balance of the installments due on the like day of each month thereafter, (except no payments shall be due during the month(s) of (___n/a___)), until the entire indebtedness has been paid; or ___ (b) In accordance with the Payment Schedule attached to this Contract. (Provisions of section 1 continued on reverse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urchaser(s) and Seller have duly executed this Contract as of 8/27, 1997. Purchaser(s): Seller: MEADOW VALLEY CONTRACTORS, CASHMAN EQUIPMENT COMPANY INC. By /s/ Gary W. Burnell By /s/ Candace N. Birt -------------------------- ------------------------------ Name (PRINT) GARY W. BURNELL Name (PRINT) CANDACE N. BIRT --------------- ------------------- Title VP/CFO Title Vice President & Treasurer ----------------------- -------------------------- EX-10.53 4 CAT FINANCIAL INSTALLMENT SALE CONTRACT INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) EXHIBIT 10.53 PURCHASER(S): SELLER: MEADOW VALLEY CONTRACTORS, INC. Cashman Equipment Company P. O. BOX 60725 PO BOX 4217 Las Vegas, NV 89510 PHOENIX, AZ 85082 County:MARICOPA - -------------------------------------------------------------------------------- Subject to the terms and conditions set forth below and on the reverse side hereof, Seller hereby sells the equipment described below (the "Unit" or "Units") to Purchaser, and Purchaser (if more than one, jointly and severally), having been offered both a cash sale price and a time sale price, hereby buys the Units from Seller on a time sale basis.
- ---------------------------------------------------------------------------------------------------------------- NEW (IF USED) DELIVERED OR FIRST MODEL DESCRIPTION OF UNIT(S) SERIAL# CASH SALE USED USED PRICE - ---------------------------------------------------------------------------------------------------------------- (1) USED 1995 IT38F Caterpillar INTEGRATED TOOL CARRIER 6FN00388 146,887.00 (1) USED 1995 IT38F Caterpillar INTEGRATED TOOL CARRIER 6FN00306 128,000.00 (1) USED 1994 966F Caterpillar WHEEL LOADER 9YJ01417 185,000.00 - ---------------------------------------------------------------------------------------------------------------- FIRST DESCRIPTION OF ADDITIONAL SECURITY USED [MAKE, MODEL & SERIAL NUMBER] Sub-Total............................ $ 459,887.00 - ------------------------------------------------- NONE Sales Tax............................ $ 32,192.09 1. Total Cash Sale Price................ $ 492,079.09 Cash Down Pay 42,690.15 Net Trade-in Allow 0.00 2. Total Down Payment................... $ 42,690.15 - ------------------------------------------------- FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 3. Unpaid Balance of Cash Price (1 - 2). $ 449,388.94 USED [MAKE, MODEL & SERIAL NUMBER] 4. Official Fees (Specify).............. $ 250.00 - ------------------------------------------------- NONE Documentation Fee 250.00 5. Physical Damage Insurance............ $ 6. Principal Balance - ------------------------------------------------- (Amount Financial) (3 + 4 + 5)....... $ 449,638.94 7. Finance Charge Trade-in Value 0.00 (Time Price Differential)............ $ 82,639.06 Less Owing to (----n/a----) 0.00 8. Time Balance Net Trade-in Allowance 0.00 (Total of Payments) (6 + 7).......... $ 532,278.00 9. Time Sale Balance Location of Units: Vicinity of (Deferred Payment Price) (2 + 8)..... $ 574,968.15 Las Vegas, NV Clark County 10. Annual Percentage Rate 6.86% 11. Date FINANCE CHANGE begins to accrue. APR 01 1997 --------------
PURCHASER HEREBY SELLS AND CONVEYS TO SELLER THE ABOVE DESCRIBED TRADE-IN EQUIPMENT AND WARRANTS IT TO BE FREE AND CLEAR OF ALL CLAIMS, ITEMS, SECURITY INTERESTS AND ENCUMBRANCES EXCEPT TO THE EXTENT SHOWN ABOVE. 1. PAYMENT: Purchaser promises to pay to Seller at the address designated in writing by Seller the Time Balance (item 8 above) as follows [check (a) or (b)]: X (a) in 60 equal monthly installments of $8,871.30 each, which the first - --- installment due on MAY 01 1997 and the balance of the installments due on the like day of each month thereafter, (except no payments shall be due during the month(s) of (____n/a____)), until the entire indebtedness has been paid; or __ (b) in accordance with the Payment Schedule attached to this Contract. (Provisions of section 1 continued on reverse.) SEE REVERSE SIDE FOR ADDITIONAL TERMS AND CONDITIONS WHICH ARE A PART OF THIS CONTRACT. LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO OTHERS IS NOT INCLUDED IN THIS CONTRACT. NOTICE TO PURCHASER: (1) DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES; (2) YOU ARE ENTITLED TO AN EXACT COPY OF THE CONTRACT YOU SIGN: (3) UNDER THE LAW YOU MAY HAVE THE RIGHT TO PAY OFF IN ADVANCE THE FULL AMOUNT DUE AND TO OBTAIN A PARTIAL REFUND OF THE FINANCE CHARGE. PURCHASER ACKNOWLEDGES RECEIPT OF A FULLY COMPLETED COPY OF THIS CONTRACT EXECUTED BY PURCHASER, THIS CONTRACT IS NOT BINDING UPON SELLER UNTIL EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. Purchaser(s) and Seller have duly executed this Contract as of APR 01 1997, 19__. Purchaser(s): Seller: MEADOW VALLEY CONTRACTORS, INC. Cashman Equipment Company By /s/ KENNETH D. NELSON By see attached ------------------------------------ --------------------------------- Name (PRINT) /s/ KENNETH D. NELSON Name (PRINT)_______________________ -------------------------- Title VICE PRESIDENT Title _____________________________ -------------------------------- EX-10.54 5 CAT FINANCIAL INSTALLMENT SALE CONTRACT INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) EXHIBIT 10.54 PURCHASER(S): SELLER (DEALER): MEADOW VALLEY CONTRACTORS, WHEELER MACHINERY CO. INC. PO BOX 60726 4901 WEST 2100 SOUTH PHOENIX, AZ 85082 SALT LAKE CITY UT 84120-1227 County:MARICOPA - -------------------------------------------------------------------------------- Subject to the terms and conditions set forth below and on the reverse side hereof, Seller hereby sells the equipment described below (the "Unit" or "Units") to Purchaser, and Purchaser (if more than one, jointly and severally), having been offered both a cash sale price and a time sale price, hereby buys the Units from Seller on a time sale basis. - --------------------------------------------------------------------------------
NEW (IF USED) DELIVERED OR FIRST CASH SALE USED USED MODEL DESCRIPTION OF UNIT(S) SERIAL# PRICE - ---------------------------------------------------------------------------------------------------------------- (1) USED 1989 140G Caterpillar MOTOR GRADER 72V12452 118,694.60 (1) USED 1994 CS563 Caterpillar COMPACTOR 8XF01017 82,525.78 (1) USED 1994 LNT8000 Ford Water Truck 1FDYW8ZEGRVAD7118 62,267.49 ACCEPTED, ACKNOWLEDGED AND CERTIFIED BY CATERPILLAR FINANCIAL SERVICES CORPORATION AS THE ORIGINAL BY: /s/ J. R. English TITLE: EXECUTIVE VICE PRESIDENT - ---------------------------------------------------------------------------------------------------------------- FIRST DESCRIPTION OF ADDITIONAL SECURITY USED [MAKE MODEL & SERIAL NUMBER] Sub-Total............................ $ 263,487.87 - ------------------------------------------------- NONE Sales Tax............................ $ 8,335.05 1. Total Cash Sale Price................ $ 271,822.92 Cash Down Pay 114,924.76 Net Trade-in Allow 0.00 2. Total Down Payment................... $ 114,924.79 - ------------------------------------------------- FIRST DESCRIPTION OF TRADE-IN EQUIPMENT 3. Unpaid Balance of Cash Price (1 - 2). $ 156,898.13 USED [MAKE MODEL & SERIAL NUMBER] 4. Official Fees (Specify).............. $ 150.00 - ------------------------------------------------- Documentation Fee 150.00 5. Physical Damage Insurance............ $ 6. Principal Balance - ------------------------------------------------- (Amount Financed) (3 + 4 + 5)........ $ 157,048.13 7. Finance Charge Trade-in Value 0.00 (Time Price Differential)............ $ 18,944.35 Less Owing to (----n/a----) 0.00 8. Time Balance Net Trade-in Allowance 0.00 (Total of Payments) (6 + 7).......... $ 175,992.45 9. Time Sale Balance Location of Units: 640 M Main (Total of Payment Price) (2 + 8)..... $ 290,917.27 M Salt Lake, UT 84054 10. Annual Percentage Rate 7.56% 11. Date FINANCE CHARGE begins to accrue. 1/1/97 --------------
PURCHASER HEREBY SELLS AND CONVEYS TO SELLER THE ABOVE DESCRIBED TRADE-IN EQUIPMENT AND WARRANTS IT TO BE FREE AND CLEAR OF ALL CLAIMS, LIENS, SECURITY INTERESTS AND ENCUMBRANCES EXCEPT TO THE EXTENT SHOWN ABOVE. 1. PAYMENT: Purchaser promises to pay to Seller at the address designated in writing by Seller the Time Balance (item 8 above) as follows [check (a) or (b)]: X (a) in 36 equal monthly installments of $4,888.68 each, with the first - --- installment due on 2/1/97 and the balance of the installments due on the like day of each month thereafter, (except no payments shall be due during the month(s) of (____n/a____)), until the entire indebtedness has been paid; or __ (b) in accordance with the Payment Schedule attached to this Contract. (Provisions of section 1 continued on reverse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urchaser(s) and Seller have duly executed this Contract as of 1/1, 1997. Purchaser(s): Seller: MEADOW VALLEY CONTRACTORS, WHEELER MACHINERY CO. INC. Cashman Equipment Company By /s/ KENNETH D. NELSON By /s/ THOMAS H. CLARK ------------------------------------ --------------------------------- Name (PRINT) KENNETH D. NELSON Name (PRINT) THOMAS H. CLARK -------------------------- ----------------------- Title VICE PRESIDENT Title SECRETARY - TREASURER -------------------------------- ------------------------------ EX-10.55 6 CAT FINANCIAL INSTALLMENT SALE CONTRACT EXHIBIT 10.55 INSTALLMENT SALE CONTRACT (SECURITY AGREEMENT) PURCHASER(S): SELLER (DEALER): READY MIX, INC. CASHMAN EQUIPMENT COMPANY 3430 E. Flamingo Road #100 3101 EAST CRAIG ROAD P.O.BOX 4217 LAS VEGAS, NV 89121 LAS VEGAS NV 89127-0217 County: CLARK - -------------------------------------------------------------------------------- Subject to the terms and conditions set forth below and on the reverse side hereof. Seller hereby sells the equipment described below (the "Unit" or "Units") to Purchaser, and Purchaser (if more than one, jointly and severally), having been offered both a cash sale price and a time sale price, hereby buys the Units from Seller on a time sale basis.
- --------------------------------------------------------------------------------------------------- NEW (IF USED) DELIVERED OR FIRST MODEL DESCRIPTION OF UNIT(S) SERIAL# CASH SALE USED USED PRICE - --------------------------------------------------------------------------------------------------- (1) USED 1996 970E Caterpillar WHEEL LOADER 7SK00713 175,000.00
- -------------------------------------------------------- FIRST DESCRIPTION OF ADDITIONAL SECURITY USED (MAKE, MODEL & SERIAL NUMBER) - -------------------------------------------------------- NONE - -------------------------------------------------------- FIRST DESCRIPTION OF ADDITIONAL SECURITY USED (MAKE, MODEL & SERIAL NUMBER) - -------------------------------------------------------- NONE ________________________________________________________ Trade-in Value 0.00 Less Owing to n/a 0.00 Net Trade-in Allowance 0.00 Location of Units: 3430 E. FLAMINGO RD. #100 LAS VEGAS, NV 89121 CLARK Sub-Total................................... $ 175,000.00 Sales Tax................................... $ 12,500.00 1. Total Cash Sale Price....................... $ 187,500.00 Cash Down Pay 18,725.00 Net Trade-In Allow 0.00 2. Total Down Payment.......................... $ 18,725.00 3. Unpaid Balance of Cash Price(1.2)........... $ 168,775.00 4. Official Fees (Specify)..................... $ 250.00 Documentation Fee 250.00 5. Physical Damage Insurance................... $ 6. Principal Balance (Amount Financed) ( 3 + 4 + 5).............. $ 169,025.00 7. Finance Charge (Time price Differential)................... $ 26,386.84 8. Time Balance (Total of Payments) (8 + 7)................. $ 195,411.84 9. Time Sale Balance (Total of Payment Price) (2 + 8)............ $ 214,136.84 10. Annual Percentage Rate 7.30% 11. Date FINANCE CHARGE begins to accrue JUL 01 1997 -------------
Purchaser hereby sells and conveys to Seller the above described Trade-in Equipment and warrants it to be free and clear of all claims, liens, security interests and encumbrances except to the extent shown above. 1. PAYMENT: Purchaser promises to pay to Seller at the address designated in writing by Seller the Time Balance (item 8 above) as follows [check (a) or (b)]: X (a) in 48 equal monthly installments of $4,071.08 each, with the first - --- installment due on Aug 01 1997, and the balance of the installments due on the like day of each month thereafter, (except no payments shall be due during the month(s) of (___n/a___)), until the entire indebtedness has been paid; or __ (b) in accordance with the Payment Schedule attached to this Contract. (Provisions of section 1 continued on reverse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urchaser(s) and Seller have duly executed this Contract as of Jul 01, 1997. Purchaser(s): Seller: READY MIX, INC. CASHMAN EQUIPMENT COMPANY. By /s/ Paul Ronald Lewis By /s/ Candace N. Birt ------------------------------ ------------------------------- Name (PRINT) PAUL RONALD LEWIS Name (PRINT) CANDACE N. BIRT -------------------- --------------------- Title COO Title Vice President & Treasurer --------------------------- --------------------------- EX-10.56 7 ESCROW SETTLEMENT DOCUMENTS EXHIBIT 10.56 - -------------------------------------------------------------------------------- A. U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT See HUD attachment(s) for '*' items Final - -------------------------------------------------------------------------------- B. TYPE OF LOANS: - -------------------------------------------------------------------------------- 1. FHA 2. FMHA 3. CONV. UNINS. 4. VA 5. CONV. INS. - -------------------------------------------------------------------------------- 6. FILE NUMBER 7. LOAN NUMBER 97050264 - -------------------------------------------------------------------------------- 8. MTG INS CASE NO - -------------------------------------------------------------------------------- C. NOTE This form is furnished to give you a statement of actual costs. Amounts paid to and by the settlement agent are shown. Items marked "(p.o.c.)" were paid outside the closing: they are shown here for informational purposes and are not included in the totals. - -------------------------------------------------------------------------------- D. NAME OF BORROWER: MEADOW VALLEY CONTRACTORS, INC. ADDRESS: P.O. BOX 549, MOAPA, NV 89025 - -------------------------------------------------------------------------------- E. NAME OF SELLER: WARM SPRINGS R.V. PARK, INC. ADDRESS: TIN: - -------------------------------------------------------------------------------- F. NAME OF LENDER: ADDRESS: - -------------------------------------------------------------------------------- G. PROPERTY LOCATION: APN: 690-210-013, MOAPA, NEVADA - -------------------------------------------------------------------------------- H. SETTLEMENT AGENT: STEWART TITLE OF NEVADA ADDRESS: 3800 HOWARD HUGHES PKWY, #500 LAS VEGAS, NV 89109 TIN:88-0072969 - -------------------------------------------------------------------------------- I. PLACE OF SETTLEMENT: STEWART TITLE OF NEVADA Closing date: 11/24/97 ADDRESS: 2950 STH. RAINBOW #220 LAS VEGAS, N Proration date: 11/24/97 - --------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------ J. SUMMARY OF BORROWER'S TRANSACTION K. SUMMARY OF SELLER'S TRANSACTION - ------------------------------------------------------------------------------------------------------------------------------------ 400. GROSS AMOUNT DUE FROM BORROWER: 400. GROSS AMOUNT DUE TO SELLER: - ------------------------------------------------------------------------------------------------------------------------------------ 401. Contract sales price 225,000.00 401. Contract sales price 225,000.00 - ------------------------------------------------------------------------------------------------------------------------------------ 402. Personal property 402. Personal property - ------------------------------------------------------------------------------------------------------------------------------------ 403. Settlement charges to borrower(line 1400) 220.38 403. - ------------------------------------------------------------------------------------------------------------------------------------ 404. 404. - ------------------------------------------------------------------------------------------------------------------------------------ 405. 405. - ------------------------------------------------------------------------------------------------------------------------------------ Adjustments for Items paid by seller in advance; Adjustments for Items paid by seller in advance; - ------------------------------------------------------------------------------------------------------------------------------------ 406. City/town taxes to 406. City/town taxes to - ------------------------------------------------------------------------------------------------------------------------------------ 407. County taxes 11/24/97 to 07/01/98 257.89 407. County taxes 11/24/97 to 07/01/98 257.89 - ------------------------------------------------------------------------------------------------------------------------------------ 408. Assessments to 408. Assessments to - ------------------------------------------------------------------------------------------------------------------------------------ 409. 409. - ------------------------------------------------------------------------------------------------------------------------------------ 410. 410. - ------------------------------------------------------------------------------------------------------------------------------------ 411. 411. - ------------------------------------------------------------------------------------------------------------------------------------ 412. 412. - ------------------------------------------------------------------------------------------------------------------------------------ 420. GROSS AMOUNT DUE FROM BORROWER: 225,478.27 420. GROSS AMOUNT DUE TO SELLER: 225,257.89 - ------------------------------------------------------------------------------------------------------------------------------------ 500. AMOUNTS PAID BY OR IN BEHALF OF BORROWER: 500. REDUCTIONS IN AMOUNT DUE TO SELLER: - ------------------------------------------------------------------------------------------------------------------------------------ 501. Deposit or earnest money 10,000.00 501. Excess deposit (see instructions) - ------------------------------------------------------------------------------------------------------------------------------------ 502. Principal amount of new loan(s) 502. Settlement charges to seller(line 1400) 18,896.55 - ------------------------------------------------------------------------------------------------------------------------------------ 503. Existing loan(s) taken subject to 503. Existing loan(s) taken subject to - ------------------------------------------------------------------------------------------------------------------------------------ 504. Add'l Deposit from Buyer 215,483.02 504. Payoff of first mortgage loan 187,897.72 - ------------------------------------------------------------------------------------------------------------------------------------ 505. 505. Payoff of second mortgage loan - ------------------------------------------------------------------------------------------------------------------------------------ 506. 506. - ------------------------------------------------------------------------------------------------------------------------------------ 507. 507. - ------------------------------------------------------------------------------------------------------------------------------------ 508. 508. - ------------------------------------------------------------------------------------------------------------------------------------ 509. 509. - ------------------------------------------------------------------------------------------------------------------------------------ Adjustment for Items unpaid by seller: Adjustment for Items unpaid by seller: - ------------------------------------------------------------------------------------------------------------------------------------ 510. City/town taxes to 510. City/town taxes to - ------------------------------------------------------------------------------------------------------------------------------------ 511. County taxes to 511. County taxes to - ------------------------------------------------------------------------------------------------------------------------------------ 512. Assessments to 512. Assessments to - ------------------------------------------------------------------------------------------------------------------------------------ 513. 513. - ------------------------------------------------------------------------------------------------------------------------------------ 514. 514. - ------------------------------------------------------------------------------------------------------------------------------------ 515. 515. - ------------------------------------------------------------------------------------------------------------------------------------ 516. 516. - ------------------------------------------------------------------------------------------------------------------------------------ 517. 517. - ------------------------------------------------------------------------------------------------------------------------------------ 518. 518. - ------------------------------------------------------------------------------------------------------------------------------------ 519. 519. - ------------------------------------------------------------------------------------------------------------------------------------ 520. TOTAL PAID BY/FOR BORROWER: 225,483.02 520. TOTAL REDUCTION AMOUNT DUE SELLER: 206,794.27 - ------------------------------------------------------------------------------------------------------------------------------------ 600. CASH AT SETTLEMENT FROM/TO BORROWER: 600. CASH AT SETTLEMENT TO/FROM SELLER: - ------------------------------------------------------------------------------------------------------------------------------------ 601. Gross amount due from borrower(line 120) 225,478.27 601. Gross amount due to seller(line 420) 225,257.89 - ------------------------------------------------------------------------------------------------------------------------------------ 602. Less amounts paid by/for borrower(line 220) 225,483.02 602. Less total reductions in amount due seller(line 520) 206,794.27 - ------------------------------------------------------------------------------------------------------------------------------------ 603. CASH ( FROM) ( X TO) BORROWER: 4.75 603. CASH ( X TO) ( FROM) SELLER 18,463.62 - ------------------------------------------------------------------------------------------------------------------------------------
????? FORM 1099 SELLER STATEMENT - The information contained in Blocks E,G,H, and I and online 401 (or, if line 401 is asterisked lines 403 and 404) is important tax information is being furnished to the Internal Revenue Service. If you are required to file a return, a negligence penalty or other sanction will be imposed on you if this item is required to be reported and the IRS determines that it has not been reported. ????? INSTRUCTION - If this real estate was your principal residence, file Form 2119. Sale or Exchange of Principal residence, for any gain, with your income tax return for other ?????, complete the applicable parts of Form 4797, Form 6252 and/or Schedule D (Form 1040). ????? are required by law to provide _______________________________ with your correct taxpayer Identification number. ????? you do not provide __________________________________ with your correct taxpayer Identification number, you may be subject to civil or criminal penalties. Per penalties of purgery I certify that the number shown on this statement is my correct taxpayer identification number.
PAGE 2 OF OMB No. 2502-02 - ------------------------------------------------------------------------------------------------------------------------------------ File 97050264 See HUD attachment(s) for '*' items PAID FROM PAID FROM Final L. SETTLEMENT CHARGES BORROWER'S SELLER'S - --------------------------------------------------------------------------------------- FUNDS FUNDS 700. TOTAL SALES/BROKER'S COMMISSION Based on $ @ % AT SETTLEMENT AT SETTLEMENT - ------------------------------------------------------------------------------------------------------------------------------------ Division of Commission (line 700) as follows: - ------------------------------------------------------------------------------------------------------------------------------------ 701. to 702. to Commission paid at settlement - ------------------------------------------------------------------------------------------------------------------------------------ 704. to - ------------------------------------------------------------------------------------------------------------------------------------ 800. ITEMS PAYABLE IN CONNECTION WITH LOAN. - ------------------------------------------------------------------------------------------------------------------------------------ 801. Loan Origination fee % - ------------------------------------------------------------------------------------------------------------------------------------ 802. Loan Discount % - ------------------------------------------------------------------------------------------------------------------------------------ 803. Appraisal fee to - ------------------------------------------------------------------------------------------------------------------------------------ 804. Credit Report to - ------------------------------------------------------------------------------------------------------------------------------------ 805. Lender's Inspection fee to - ------------------------------------------------------------------------------------------------------------------------------------ 806. Mortgage Insurance application fee to - ------------------------------------------------------------------------------------------------------------------------------------ 807. Assumption Fee to - ------------------------------------------------------------------------------------------------------------------------------------ 808. to - ------------------------------------------------------------------------------------------------------------------------------------ 809. to - ------------------------------------------------------------------------------------------------------------------------------------ 810. to - ------------------------------------------------------------------------------------------------------------------------------------ 811. to - ------------------------------------------------------------------------------------------------------------------------------------ 812. to - ------------------------------------------------------------------------------------------------------------------------------------ 900. ITEMS REQUIRED BY LENDER TO BE PAID IN ADVANCE. - ------------------------------------------------------------------------------------------------------------------------------------ 901. Interest from to @$ /day - ------------------------------------------------------------------------------------------------------------------------------------ 902. Mortgage Insurance premium for mo: to - ------------------------------------------------------------------------------------------------------------------------------------ 903. Hazard Insurance premium for yrs: to - ------------------------------------------------------------------------------------------------------------------------------------ 904. to - ------------------------------------------------------------------------------------------------------------------------------------ 905. - ------------------------------------------------------------------------------------------------------------------------------------ 1000. RESERVES DEPOSITED WITH LENDER - ------------------------------------------------------------------------------------------------------------------------------------ 1001. Hazard Insurance mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1002. Mortgage Insurance mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1003. City property taxes mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1004. County property taxes mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1005. Annual assessments (Maint.) mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1006. mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1007. mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ 1008. mo.@$ per mo. - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 1100. TITLE CHARGES: - ------------------------------------------------------------------------------------------------------------------------------------ 1101. Settlement or closing fee to STEWART TITLE OF NEVADA 212.38 212.38 - ------------------------------------------------------------------------------------------------------------------------------------ 1102. Abstract of title search to - ------------------------------------------------------------------------------------------------------------------------------------ 1103. Title examination to - ------------------------------------------------------------------------------------------------------------------------------------ 1104. Title Insurance binder to - ------------------------------------------------------------------------------------------------------------------------------------ 1105. Document preparation to - ------------------------------------------------------------------------------------------------------------------------------------ 1106. Notary fee to - ------------------------------------------------------------------------------------------------------------------------------------ 1107. Attorney's fee to to - ------------------------------------------------------------------------------------------------------------------------------------ (includes above items No.: - ------------------------------------------------------------------------------------------------------------------------------------ 1108. Title Insurance to STEWART TITLE OF NEVADA 897.50 - ------------------------------------------------------------------------------------------------------------------------------------ (includes above items No.: - ------------------------------------------------------------------------------------------------------------------------------------ 1109. Lender's coverage $ - ------------------------------------------------------------------------------------------------------------------------------------ 1110. Owner's coverage 225,000.00 $ 897.50 - ------------------------------------------------------------------------------------------------------------------------------------ 1111. RECONVEYANCE FEE to STEWART TITLE OF NEVADA 100.00 - ------------------------------------------------------------------------------------------------------------------------------------ 1112. to - ------------------------------------------------------------------------------------------------------------------------------------ 1113. to - ------------------------------------------------------------------------------------------------------------------------------------ 1114. to - ------------------------------------------------------------------------------------------------------------------------------------ 1200. GOVERNMENT RECORDING AND TRANSFER CHARGES - ------------------------------------------------------------------------------------------------------------------------------------ 1201. Recording fee: Deed $ 8.00 Mrtg $ Rel.$ 7.00 8.00 7.00 - ------------------------------------------------------------------------------------------------------------------------------------ 1202. City/county tax/stamps; Deed $ Mrtg $ - ------------------------------------------------------------------------------------------------------------------------------------ 1203. State tax/stamps; Deed $ 562.50 Mrtg $ 562.50 - ------------------------------------------------------------------------------------------------------------------------------------ 1204. to - ------------------------------------------------------------------------------------------------------------------------------------ 1205. to - ------------------------------------------------------------------------------------------------------------------------------------ 1206. to - ------------------------------------------------------------------------------------------------------------------------------------ 1300. ADDITIONAL SETTLEMENT CHARGES - ------------------------------------------------------------------------------------------------------------------------------------ 1301. Survey to - ------------------------------------------------------------------------------------------------------------------------------------ 1302. Pest Inspection to - ------------------------------------------------------------------------------------------------------------------------------------ 1303. to - ------------------------------------------------------------------------------------------------------------------------------------ 1304. to - ------------------------------------------------------------------------------------------------------------------------------------ 1305. See HUD attachment to * 17,117.17 - ------------------------------------------------------------------------------------------------------------------------------------ 1400. TOTAL SETTLEMENT CHARGES (entered on lines 103, Section I and 502, Section k) 220.38 18,896.55 - ------------------------------------------------------------------------------------------------------------------------------------
CERTIFICATION I have carefully reviewed the HUD-1 Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on my account or by me in this transaction. I further certify that I have received a copy of HUD-1 Settlement Statement. _______________________________ _______________________________ _______________________________ _______________________________ Borrowers Sellers The HUD-1 Settlement, Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with this statement. _______________________________ _______________________________ Settlement Agent Date WARNING: It is a crime to knowingly make false statements to the United States on this or any other similar form Penalties HUD-2 Settlement Statement Attachment, Page 1 File number.....: 97050264 Buyer(s)........: MEADOW VALLEY CONTRACTORS, INC. Seller(s).......: WARM SPRINGS R.V. PARK, INC. Lender..........: Loan Number: - -------------------------------------------------------------------------------- Continued From HUD Form Page 2 Borrower's Adjustments Seller's Adjustments - -1305- -1305- CHARLES AND CAROL WILLIAMS to CHARLES WILLIAMS AND 5,000.00 DELINQUENT TAXES to CLARK COUNTY TREASURER 2,177.17 EARLY RELEASE OF FUNDS to DENNIS PULSIPHER 10,000.00 ----------------- Total for HUD line 1305: 17,117.17 GRANT, BARGAIN SALE DEED Affix RPTT $ 562.50 --------- FOR VALUABLE CONSIDERATION the receipt of which is hereby acknowledged WARM SPRINGS R.V.PARK, INC., a NEVADA CORPORATION do(es) hereby Grant, Bargain, Sell and convey to MEADOW VALLEY CONTRACTORS, INC., a Nevada corporation all that real property situate in the _____________________ County of CLARK State of Nevada, bounded and described as follows: "FOR FULL LEGAL DESCRIPTION, SEE EXHIBIT "A" ATTACHED HERETO AND BY REFERENCE MADE A PART HEREOF" A.P.N-: 609-210-013 -------------- SUBJECT TO: 1. Taxes for fiscal year 1997 - 1998. 2. Reservations, restrictions and conditions if any; rights of way and easements either of record or actually existing on said premises. Together with all and singular the tenements, hereditaments and appurtenances thereto belonging in otherwise appertaining. DATED: November 05,1997 ------------------------- WARM SPRING R.V. PARK, INC. /s/ Dennis Pulsipher - -------------------------------- _____________________________ BY: DENNIS PULSIPHER, PRESIDENT ________________________________ _____________________________ ________________________________ _____________________________ STATE OF NEVADA COUNTY OF Clark } " ------------ On November 12, 1997 - ------------------------------ before me, the undersigned, ESCROW NO. a Notary Public in and for ORDER NO. } 97050264 -------------- said County and State, personally appeared BY: Dennis Pulsipher WHEN RECORDED MAIL TO: Meadow Valley Con- ______________________________ ------------------ tractors, Inc., P.O. Box 549, Moapa, NV ______________________________ ----------------------------------------- 89025 ______________________________ ----------------------------------------- _________________________________________ ______________________________ known to me to be the person(s) described in and who executed the foregoing instrument, who acknow- ledged to me that he executed the same freely and voluntarily and for the uses and purposes therein mentioned. WITNESS my hand and official seal. SIGNATURE ILLEGIBLE - ------------------------ [STAMP APPEARS HERE] EXHIBIT "A" ----------- PARCEL I: That portion of the Northwest Quarter (NW 1/4) of said Section 2, lying Southerly and Westerly of U.S. Highway No. 93, and Northerly and Westerly of the Muddy River. EXCEPTING THEREFROM all that portion of said land lying Northerly of Riverview Road, as conveyed to Clark County by Deed recorded March 16, 1978 as Document No. 819125. PARCEL II: That portion of the North Half (N 1/2) of the Southwest Quarter (SW 1/4) of said Section 2, lying Northerly of the Los Angeles and Salt Lake Railroad right of way, and Westerly of the Muddy River. EXCEPTING THEREFROM all state, County and Federal road and highways from both Parcels 1 and 2. [STAMP] EX-10.57 8 PROMISSORY NOTE EXECUTED BY GENERAL ELECTRIC EXHIBIT 10.57 PROMISSORY NOTE December 4, 1997 ------------------ (DATE) 3430 E. FLAMINGO, SUITE 100, LAS VEGAS, CLARK COUNTY, NV 89121 ________________________________________________________________________________ (ADDRESS OF MAKER) FOR VALUE RECEIVED, READY MIX, INC. ("MAKER") promises, jointly and severally if more than one, to pay to the order of General Electric Capital Corporation or any subsequent holder hereof (each, a "PAYEE") at its office located at 8480 ORCHARD ROAD SUITE 5000, ENGLEWOOD, CO 80111 or at such other place as Payee or the holder hereof may designate, the principal sum of the SIX HUNDRED SEVENTY FIVE THOUSAND SIX HUNDRED TEN AND 52/100 DOLLARS ($675,610.52), with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed, simple interest rate of Eight and 13/100 percent (8.13%) per annum, to be paid in lawful money of the United States, in Fifty Nine (59) consecutive monthly installments of principal and interest of THIRTEEN THOUSAND SEVEN HUNDRED FORTY ONE AND 02/100 DOLLARS ($13,741.02) each ("PERIODIC INSTALLMENT") and a final installment which shall be in the amount of the total outstanding principal and interest. The first Periodic Installment shall be due and payable on January 4, 1998 and the following Periodic Installments and the final installments shall be due and payable on the same day of each succeeding period (each, a "PAYMENT DATE"). All payments shall be applied first to interest and then to principal. The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a waiver of Payee's right to receive payment in full at such time or at any prior or subsequent time. Interest shall be calculated on the basis of a 365 day year (366 day leap year). The payment of any Periodic Installment after its due date shall result in a corresponding decrease in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The payment of any Periodic Installment prior to its due date shall result in a corresponding increase in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto. This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like instrument (each of which is hereinafter called a "SECURITY AGREEMENT"). Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of five percent (5%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after the same becomes due and payable; or (ii) Maker is in default, or fails to perform, under any term or condition contained in any Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment). The Maker may prepay in full, or in part, its entire indebtedness hereunder upon payment of an additional sum as a premium equal to the following percentages of the original principal balance for the indicated period: Prior to the first annual anniversary date of this Note: three percent (3%) Thereafter and prior to the second annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the third annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fourth annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fifth annual anniversary date of this Note: zero percent (0%) and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement. It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement or if all of the principle balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note of any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America. The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an "OBLIGOR") who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee's attorneys' fees. THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, AND DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. This Note and any Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied. No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Any provision in this Note or any Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to confirm thereto. READY MIX, INC. /s/ Julie L. Bergo By: /s/ Kenneth D. Nelson (L.S.) - ----------------------------------- ------------------------------- (Witness) (Signature) /s/ Julie L. Bergo /s/ Kenneth D. Nelson, Vice President - ----------------------------------- ---------------------------------- (Print name) Print name (and title, if applicable) 4411 So 40th St. Sc D-11 Phx. 860830443 - ----------------------------------- ------------------------------------ (Address) (Federal tax identification number) EX-10.58 9 PROMISSORY NOTE EXECUTED BY GENERAL ELECTRIC EXHIBIT 10.58 PROMISSORY NOTE NOVEMBER 17, 1997 ------------------- (DATE) SUITE D-11, 4411 S 40th STREET, PHOENIX, MARICOPA COUNTY, AZ 85082 ________________________________________________________________________________ (ADDRESS OF MAKER) FOR VALUE RECEIVED, MEADOW VALLEY CONTRACTORS, INC. ("MAKER") promises, jointly and severally if more than one, to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION or any subsequent holder hereof (each, a "PAYEE") at its office located at 8480 ORCHARD ROAD SUITE 5000, ENGLEWOOD, CO 80111 or at such other place as Payee or the holder hereof may designate, the principal sum of SIX HUNDRED THIRTY TWO THOUSAND FOUR HUNDRED FIFTY ONE AND 40/100 DOLLARS ($632,451.40), with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed, simple interest rate of EIGHT AND 13/100 PERCENT (8.13%) per annum, to be paid in lawful money of the United States, in FIFTY NINE (59) consecutive monthly installments of principal and interest of TWELVE THOUSAND EIGHT HUNDRED SIXTY THREE AND 22/100 DOLLARS ($12,863.22) each ("PERIODIC INSTALLMENT") and a final installment which shall be in the amount of the total outstanding principal and interest. The first Periodic Installment shall be due and payable on DECEMBER 17, 1997 and the following Periodic Installments and the final installments shall be due and payable on the same day of each succeeding period (each, a "PAYMENT DATE"). All payments shall be applied first to interest and then to principal. The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a waiver of Payee's right to receive payment in full at such time or any prior or subsequent time. Interest shall be calculated on the basis of a 365 day year (366 day leap year). The payment of any Periodic Installment after its due date shall result in a corresponding decrease in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The payment of any Periodic Installment prior to its due date shall result in a corresponding increase in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto. This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like instrument (each of which is hereinafter called a "SECURITY AGREEMENT"). Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of Three percent (3%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after the same becomes due and payable; or (ii) Maker is in default, or fails to perform, under any term or condition contained in any Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment). The Maker may prepay in full, or in part, its indebtedness hereunder upon payment of an additional sum as a premium equal to the following percentages of the original principal balance for the indicated period: Prior to the first annual anniversary date of this Note: three percent (3%) Thereafter and prior to the second annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the third annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fourth annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fifth annual anniversary date of this Note: zero percent (0%) and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement. It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement, or if all of the the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America. The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an "OBLIGOR") who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notice in connection herewith, as well as filing of suit (if permitted by law) and and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee's reasonable attorneys' fees. THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. This Note and any Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied. No variation or modification of this note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Any provision in this Note or any Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto. MEADOW VALLEY CONTRACTORS, INC. /s/ Julie L. Bergo BY: /s/ Gary W. Burnell - ----------------------------------- -----------------------------(L.S.) (Witness) (Signature) Julie L. Bergo Gary W. Burnell, VP/CFO - ----------------------------------- -------------------------------- (Print name) Print name (and title, if applicable) 4411 S. 40th St Ste D-11 880171959 - ----------------------------------- --------------------------------- (Address) Phoenix 85040 (Federal tax identification Number) Arizona EX-10.59 10 PROMISSORY NOTE EXECUTED BY GENERAL ELECTRIC EXHIBIT 10.59 PROMISSORY NOTE December 31, 1997 ------------------- (DATE) SUITE D-11, 4411 S 40th STREET, PHOENIX, MARICOPA COUNTY, AZ 85082 ________________________________________________________________________________ (ADDRESS OF MAKER) FOR VALUE RECEIVED, MEADOW VALLEY CONTRACTORS, INC. ("MAKER") promises, jointly and severally if more than one, to pay to the order of GENERAL ELECTRIC CAPITAL CORPORATION or any subsequent holder hereof (each, a "PAYEE") at its office located at 8480 ORCHARD ROAD SUITE 5000, ENGLEWOOD, CO 80111 or at such other place as Payee or the holder hereof may designate, the principal sum of ONE HUNDRED FORTY FOUR THOUSAND SEVEN HUNDRED FOURTEEN AND NO/100 DOLLARS ($144,714.00), with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed, simple interest rate of EIGHT AND 13/100 PERCENT (8.13%) per annum, to be paid in lawful money of the United States, in FIFTY NINE (59) consecutive monthly installments of principal and interest of TWO THOUSAND NINE HUNDRED FORTY THREE AND 95/100 DOLLARS ($2,943.95) each ("PERIODIC INSTALLMENT") and a final installment which shall be in the amount of the total outstanding principal and interest. The first Periodic Installment shall be due and payable on FEBRUARY 1, 1998 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding period (each, a "PAYMENT DATE"). All payments shall be applied first to interest and then to principal. The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a waiver of Payee's right to receive payment in full at such time or any prior or subsequent time. Interest shall be calculated on the basis of a 365 day year (366 day leap year). The payment of any Periodic Installment after its due date shall result in a corresponding decrease in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The payment of any Periodic Installment prior to its due date shall result in a corresponding increase in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto. This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like instrument (each of which is hereinafter called a "SECURITY AGREEMENT.") Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of three percent (3%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after the same becomes due and payable; or (ii) Maker is in default, or fails to perform, under any term or condition contained in any Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment). The Maker may prepay in full, or in part, its indebtedness hereunder upon payment of an additional sum as a premium equal to the following percentages of the original principal balance for the indicated period: Prior to the first annual anniversary date of this Note: three percent (3%) Thereafter and prior to the second annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the third annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fourth annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fifth annual anniversary date of this Note: zero percent (0%) and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement. It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interest contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America. The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an "OBLIGOR") who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law and) and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee's reasonable attorneys' fees. THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. This Note and any Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied. No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Any provision in this Note or any Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conform thereto. MEADOW VALLEY CONTRACTORS, INC. /s/ Julie L. Bergo BY: /s/ Gary W. Burnell (L.S.) - ----------------------------------- ----------------------------- (Witness) (Signature) Julie L. Bergo Gary W. Burnell, VP/CFO - ----------------------------------- -------------------------------- (Print name) Print name (and title, if applicable) 4411 S. 40th St Ste D-11 Phoenix AZ 85040 880171959 - ----------------------------------- --------------------------------- (Address) (Federal tax identification Number) EX-10.60 11 PROMISSORY NOTE EXECUTED BY GENERAL ELECTRIC EXHIBIT 10.60 PROMISSORY NOTE December 30, 1997 ------------------- (DATE) SUITE D-11, 4411 S 40th STREET, PHOENIX, MARICOPA COUNTY, AZ 85082 ________________________________________________________________________________ (ADDRESS OF MAKER) FOR VALUE RECEIVED, MEADOW VALLEY CONTRACTORS, INC. ("MAKER") promises, jointly and severally if more than one, to pay to the order of General ELECTRIC CAPITAL CORPORATION or any subsequent holder hereof (each, a "PAYEE") at its office located at 8480 ORCHARD ROAD SUITE 5000, ENGLEWOOD, CO 80111 or at such other place as Payee or the holder hereof may designate, the principal sum of ONE HUNDRED FIFTY FOUR THOUSAND SEVEN HUNDRED ONE AND 94/100 DOLLARS ($154,701.94), with interest on the unpaid principal balance, from the date hereof through and including the dates of payment, at a fixed, simple interest rate of EIGHT AND 13/100 percent (8.13%) per annum, to be paid in lawful money of the United States, in FIFTY NINE (59) consecutive monthly installments of principal and interest of THREE THOUSAND ONE HUNDRED FORTY SEVEN AND 85/100 DOLLARS ($3,147.85) each ("PERIODIC INSTALLMENT") and a final installment which shall be in the amount of the total outstanding principal and interest. The first Periodic Installment shall be due and payable on FEBRUARY 1, 1998 and the following Periodic Installments and the final installment shall be due and payable on the same day of each succeeding period (each, A "PAYMENT DATE"). All payments shall be applied first to interest and then to principal. The acceptance by Payee of any payment which is less than payment in full of all amounts due and owing at such time shall not constitute a waiver of Payee's right to receive payment in full at such time or any prior or subsequent time. Interest shall be calculated on the basis of a 365 day year (366 day leap year). The payment of any Periodic Installment after its due date shall result in a corresponding decrease in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The payment of any Periodic Installment prior to its due date shall result in a corresponding increase in the portion of the Periodic Installment credited to the remaining unpaid principal balance. The Maker hereby expressly authorizes the Payee to insert the date value is actually given in the blank space on the face hereof and on all related documents pertaining hereto. This Note may be secured by a security agreement, chattel mortgage, pledge agreement or like instrument (each of which is hereinafter called a "SECURITY AGREEMENT"). Time is of the essence hereof. If any installment or any other sum due under this Note or any Security Agreement is not received within ten (10) days after its due date, the Maker agrees to pay, in addition to the amount of each such installment or other sum, a late payment charge of three percent (3%) of the amount of said installment or other sum, but not exceeding any lawful maximum. If (i) Maker fails to make payment of any amount due hereunder within ten (10) days after the same becomes due and payable; or (ii) Maker is in default, or fails to perform, under any term or condition contained in any Security Agreement, then the entire principal sum remaining unpaid, together with all accrued interest thereon and any other sum payable under this Note or any Security Agreement, at the election of Payee, shall immediately become due and payable, with interest thereon at the lesser of eighteen percent (18%) per annum or the highest rate not prohibited by applicable law from the date of such accelerated maturity until paid (both before and after any judgment). The Maker may prepay in full, or in part, its indebtedness hereunder upon payment of an additional sum as a premium equal to the following percentages of the original principal balance for the indicated period: Prior to the first annual anniversary date of this Note: three percent (3%) Thereafter and prior to the second annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the third annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fourth annual anniversary date of this Note: zero percent (0%) Thereafter and prior to the fifth annual anniversary date of this Note: zero percent (0%) and zero percent (0%) thereafter, plus all other sums due hereunder or under any Security Agreement. It is the intention of the parties hereto to comply with the applicable usury laws; accordingly, it is agreed that, notwithstanding any provision to the contrary in this Note or any Security Agreement, in no event shall this Note or any Security Agreement require the payment or permit the collection of interest in excess of the maximum amount permitted by applicable law. If any such excess interest is contracted for, charged or received under this Note or any Security Agreement,or if all of the principal balance shall be prepaid, so that under any of such circumstances the amount of interset contracted for, charged or received under this Note or any Security Agreement on the principal balance shall exceed the maximum amount of interest permitted by applicable law, then in such event (a) the provisions of this paragraph shall govern and control, (b) neither Maker nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable law, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal balance or refunded to Maker, at the option of the Payee, and (d) the effective rate of interest shall be automatically reduced to the maximum lawful contract rate allowed under applicable law as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or any Security Agreement which are made for the purpose of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the indebtedness evidenced hereby, all interest at any time contracted for, charged or received from Maker or otherwise by Payee in connection with such indebtedness; provided, however, that if any applicable state law is amended or the law of the United States of America preempts any applicable state law, so that it becomes lawful for the Payee to receive a greater interest per annum rate than is presently allowed, the Maker agrees that, on the effective date of such amendment or preemption, as the case may be, the lawful maximum hereunder shall be increased to the maximum interest per annum rate allowed by the amended state law or the law of the United States of America. The Maker and all sureties, endorsers, guarantors or any others (each such person, other than the Maker, an "OBLIGOR") who may at any time become liable for the payment hereof jointly and severally consent hereby to any and all extensions of time, renewals, waivers or modifications of, and all substitutions or releases of, security or of any party primarily or secondarily liable on this Note or any Security Agreement or any term and provision of either, which may be made, granted or consented to by Payee, and agree that suit may be brought and maintained against any one or more of them, at the election of Payee without joinder of any other as a party thereto, and that Payee shall not be required first to foreclose, proceed against, or exhaust any security hereof in order to enforce payment of this Note. The Maker and each Obligor hereby waives presentment, demand for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, and all other notices in connection herewith, as well as filing of suit (if permitted by law), and diligence in collecting this Note or enforcing any of the security hereof, and agrees to pay (if permitted by law) all expenses incurred in collection, including Payee's reasonable attorney's fees. THE MAKER HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS NOTE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN MAKER AND PAYEE RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN MAKER AND PAYEE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.) THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS NOTE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. IN THE EVENT OF LITIGATION, THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. This Note and any Security Agreement constitute the entire agreement of the Maker and Payee with respect to the subject matter hereof and supercedes all prior understandings, agreements and representations, express or implied. No variation or modification of this Note, or any waiver of any of its provisions or conditions, shall be valid unless in writing and signed by an authorized representative of Maker and Payee. Any such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Any provision in this Note or any Security Agreement which is in conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to conformed thereto. MEADOW VALLEY CONTRACTORS, INC. /s/ Julie L. Bergo By: /s/ Gary W. Burnell (L.S.) - -------------------------------------- --------------------------------- (Witness) (Signature) Julie L. Bergo, Secretary GARY W. BURNELL, VP/CFO - -------------------------------------- -------------------------------------- (Print name) Print name (and title, if applicable) 4411 S. 40th St. Ste D-11 Phoenix AZ 880171959 - -------------------------------------- -------------------------------------- (Address) 85040 (Federal tax identification number) EX-10.61 12 PROMISSORY NOTE EXECUTED BY NEVADA STATE BANK EXHIBIT 10.61 PROMISSORY NOTE
- ------------------------------------------------------------------------------------------------------------------------------ PRINCIPAL LOAN DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS $168,750.00 12-23-1997 12-31-2004 5001 81 5140 5235200 80288 - ------------------------------------------------------------------------------------------------------------------------------ References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. - ------------------------------------------------------------------------------------------------------------------------------
BORROWER: Meadow Valley Contractors, Inc. (TIN: 88-0171959) LENDER: NEVADA STATE BANK 4411 South 40th Street #D-11 CORPORATION BANKING Phoenix, AZ 85040 201 SOUTH 4TH STREET P.O. BOX 990 LAS VEGAS, NV 89125-0990
================================================================================ PRINCIPAL AMOUNT: $168,750.00 INTEREST RATE: 9.000% DATE OF NOTE: DECEMBER 23, 1997 PROMISE TO PAY. Meadow Valley Contractors, Inc. ("Borrower") promises to pay to NEVADA STATE BANK ("Lender"), or order, in lawful money of the United States of America, the principal amount of One Hundred Sixty Eight Thousand Seven Hundred Fifty & 00/100 Dollars ($168,750.00), together with interest at the rate of 9.000% per annum on the unpaid principal balance from December 23, 1997, until paid in full. PAYMENT. Borrower will pay this loan in 84 payments of $2,731.11 each payment. Borrower's first payment is due January 31, 1998, and all subsequent payments are due on the same day of each month after that, Borrower's final payment will be due on December 31, 2004, and will be for all principal and all accrued interest not yet paid. Payments include principal and interest. Interest on this Note is 365/360 simple interest basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to any unpaid collection costs and any late charges, then to any unpaid interest, and any remaining amount to principal. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing, Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, they will reduce the principal balance due and may result in Borrower making fewer payments. DEFAULT. Borrower will be in default if any of the following happens: (a) Borrower fails to make any payment when due. (b) Borrower breaks any promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition contained in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the Related Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any material respect either now or at the time made or furnished. (e) Borrower becomes insolvent, a receiver is appointed for any part of Borrower's property, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries to take any of Borrower's property on or in which Lender has a lien or security interest. This includes a garnishment of any Borrower's accounts with Lender. (g) Any guarantor dies or any of the other events described in this default section occurs with respect to any guarantor of this Note. (h) A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. (i) Lender in good faith deems itself insecure. If any default, other than a default in payment, is curable and if Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twelve (12) months, it may be cured (and no event of default will have occurred) if Borrower, after receiving written notice from Lender demanding cure of such default: (a) cures the default within ten (10) days; or (b) if the cure requires more than ten (10) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliances as soon as reasonably practical. LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, without notice, and then Borrower will pay that amount. Upon default, including failure to pay upon final maturity, Lender, at its option, may also, if permitted under applicable law, increase the interest rate on this Note 3,000 percentage points. The interest rate will not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection service. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. This Note has been delivered to Lender and accepted by Lender in this State of Nevada. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Clark County, the State of Nevada (Initial Here [SIGNATURE ILLEGIBLE]). Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against the other. Subject to the provisions on arbitration, this Note shall be governed by and construed in accordance with the laws of the State of Nevada. RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security interest in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, savings, or some other account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in he future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge to setoff all sums owing on this Note against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided on this paragraph. COLLATERAL. This Note is secured by a Deed of trust of even date. ARBITRATION. Lender, Borrower and/or Guarantor (where applicable) agree that: (a) Any claim or controversy ("Dispute") between or among the parties, including but not limited to Disputes arising out of relating to the Agreement, this Addendum ("arbitration clause"), or any related agreements or instruments relating hereto or delivered in connection herewith ("Related Documents"), and including but not limited to a Dispute based on or arising from an alleged tort, shall at the request of any party be resolved by binding arbitration in accordance with the applicable arbitration rules of the American Arbitration Association ("the Administrator"). The provisions of this arbitration clause shall survive any termination, amendment, or expiration of this Agreement or Related Documents. 1. ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. 2. IN ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL. 3. DISCOVERY IN ARBITRATION IS MORE LIMITED THAN DISCOVERY IN COURT. 4. ARBITRATIONS ARE NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING IN THEIR AWARDS. THE RIGHT TO APPEAL OR SEEK MODIFICATION OF ARBITRATORS' RULINGS IS VERY LIMITED 5. A PANEL OF ARBITRATIONS MIGHT INCLUDE AN ARBITRATOR WHO IS OR WAS AFFILIATED WITH THE BANKING INDUSTRY. 6. IF YOU HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR ATTORNEY OR THE AMERICAN ARBITRATION ASSOCIATION. (b) The arbitration proceedings shall be conducted in Las Vegas, Nevada at a place to be determined by the Administrator. The Administrator and the arbitrator(s) shall have the authority to the extent practicable to take any action to require the arbitration proceeding to be completed and the arbitrator(s)' award issued within one-hundred-fifty (150) days of the filing of the Dispute with the Administrator. The arbitrator(s) shall have the authority to impose sanctions on any party that fails to comply with time periods imposed by the Administrator or the arbitrator(s), including the sanction of summarily dismissing any Dispute or defense with prejudice. The arbitrator(s) shall have the authority to resolve any Dispute regarding the terms of this Agreement, this arbitration clause or Related Documents, including any claim or controversy regarding the arbitrability of any Dispute. All limitations periods applicable to any Dispute or defense, whether by statue or agreement, shall apply to any arbitration proceeding hereunder and the arbitrator(s) shall have the authority to decide whether any Dispute or defense is barred by a limitations period and, if so, to summarily dismiss any Dispute or defense on that basis. The doctrines of complusory counterclaim, res judicata, and collateral estoppel shall apply to any arbitration proceeding hereunder so that a party must state as a counterclaim in the arbitration proceeding any claim or controversy which arises out of the transaction or occurrence that is the subject matter of the Dispute. The arbitrator(s) may in the arbitrator(s)' discretion and at the request of any party: (1) consolidate in a single arbitration proceeding any other claim or controversy involving another party that is substantially related to the Dispute where that other party is bound by an arbitration clause with the Bank, such as borrowers, guarantors, sureties, and owners of collateral; (2) consolidate in a single arbitration proceeding any other claim or controversy that is substantially similar to the Dispute; and (3) administer multiple arbitration claims or controversies as class actions in accordance with the provisions of Rule 23 of the Federal Rules of Civil Procedure. (c) The arbitrator(s) shall be selected in accordance with the rules of the Administrator from panels maintained by the Administrator. A single arbitrator shall be knowledgeable in the subject matter of the Dispute. Where three arbitrators conduct an arbitrator proceeding, the Dispute shall be decided by a majority vote of the three arbitrators, at least one of whom must be knowledgeable in the subject matter of the Dispute and at least one of whom must be a practicing attorney. The arbitrator(s) shall award recovery of all costs and fees (includings attorneys' fees and costs, arbitration administration fees and costs, and arbitrator(s) fees). The arbitrator(s), either during the pendency of the arbitration proceeding or as part of the arbitration award, also may granted provisional or ancillary remedies including but not limited to ??????????? ????????????????????? 12-23-1997 PROMISSORY NOTE LOAN NO 5001 (CONTINUED) ================================================================================ appointment of a receiver. (d) Judgment upon an arbitration award may be entered in any court having jurisdiction, subject to the following limitation: the arbitration award is binding upon the parties only if the amount does not exceed Two Million Dollars ($2,000,000.00); if the award exceeds that limit, either party may demand the right to a court trial. Such a demand must be filed with the Administrator within thirty (30) days following the date of the arbitration award; if such a demand is not made within that time period, the amount of the arbitration award shall be binding. The computation of the total amount of an arbitration award shall include amounts awarded for attorneys' fees and costs, arbitration administration fees and costs, and arbitration(s)' fees. (e) No provision of this arbitration clause, nor the exercise of any rights hereunder, shall limit the right of any party to: (1) judicially or non- judicially foreclose against any real or personal property collateral or other security; (2) exercise self-help remedies, including but not limited to repossession and setoff rights; or (3) obtain from a court having jurisdiction thereover any provisional or ancillary remedies including but not limited to injunctive relief, foreclosure, sequestration, attachment, replevin, garnishment, or the appointment of a receiver. Such rights can be exercised at any time, before or during initiation of an arbitration proceeding, except to the extent such action is contrary to the arbitration award. The exercise of such rights shall not constitute a waiver of the right to submit any Dispute to arbitration, and any claim or controversy related to the exercise of such rights shall be a Dispute to be resolved under the provisions of the arbitration clause. (f) Notwithstanding the applicability of any other law to the Agreement, the arbitration clause, or Related Documents between or among the parties, the Federal Arbitration Act, 9 U.S.C. Section 1 et seq., shall apply to the construction and interpretation of this arbitration clause. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, protest and notice of dishonor. Upon any charge in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. BORROWER: Meadow Valley Contractors, Inc. By: /s/ Gary W. Burnell ----------------------------------- Gary W. Burnell, Vice President ================================================================================ EX-10.62 13 KDC SALES CONTRACT EXHIBIT 10.62 KDC FINANCIAL -------------------- ACCOUNT NO. ___________ -------------------- SECURITY AGREEMENT - CONDITIONAL SALES CONTRACT Subject to the Terms and Conditions herein contained, the Seller hereby agrees to sell, and the Buyer having been quoted and offered both a cash sale price, payable immediately or within a limited number of days, and a contract time price which permits the Buyer to purchase the property now but pay in installments over an extended period of time, hereby agrees to buy, the following described property ("property") on a contract time price basis set forth below. The contract time price is more than the cash sales price because it includes charges by the Seller to compensate the Seller for having to wait a period of time before collecting its full purchase price and for taking a risk in waiting such period of time. The property is to be used only for commercial or business purposes, includes all accessories and attachments, and shall, except as permitted by Paragraph 7 on pages 4 and 5 hereof, be located at Buyer's Address set forth immediately below.
- ---------------------------------------------------------------------------------------------------------------------------- SELLER NAME & LOCATION BUYER NAME & ADDRESS/LOCATION - ---------------------------------------------------------------------------------------------------------------------------- NAME: LEGAL NAME: KOMATSU EQUIPMENT COMPANY MEADOW VALLEY CONTRACTORS, INC --------------------------------------------------------------------------- MAILING ADDRESS: CITY: - --------------------------------------------- ADDRESS: P.O. BOX 60726 PHOENIX --------------------------------------------------------------------------- 2350 WEST 1500 SOUTH COUNTY: STATE: ZIP: TELEPHONE: MARICOPA AZ 85082-0726 (602) 437-5400 - ----------------------------------------------------------------------------------------------------------------------------- CITY: PHYSICAL LOCATION: CITY: SALT LAKE CITY P.O. BOX 60726 PHOENIX - ----------------------------------------------------------------------------------------------------------------------------- STATE: ZIP: COUNTY: STATE: ZIP: FED. I.D. / SSN: UT 84104 MARICOPA AZ 85082-0726 88-0171959 - ----------------------------------------------------------------------------------------------------------------------------- PROPERTY DESCRIPTION - ----------------------------------------------------------------------------------------------------------------------------- QUANTITY NEW / USED MAKE MODEL DESCRIPTION SERIAL NUM PRICE - ----------------------------------------------------------------------------------------------------------------------------- 1 New Komatsu PC220LC-6 HYDRAULIC EXCAVATOR A82079 $205,250.00
- ----------------------------------------------------------------------------------------------------------------------------- TRADE-IN EQUIPMENT DESCRIPTION 1. SALES PRICE: $205,250.00 - ----------------------------------------------------------------------------------------------------------------------------- 2. DELIVERY, INSTALLATION, REPAIR OR OTHER SERVICE CHARGES IF ANY: $0.00 ------------------------------------------------------ 3. SALES TAX: $ 7,269.50 ------------------------------------------------------ 4. CASH PRICE (INVOICE, TAX, SERVICE CHARGES): $212,519.50 ------------------------------------------------------ 5A. CASH $78,000.00 ------------------------------------------------------ B. NET TRADE-IN ALLOWANCE: $ 0.00 - -------------------------------------------------------------------- ------------------------------------------------------ SCHEDULE OF PAYMENTS C. LESS INSURANCE PREMIUM: $ 0.00 - -------------------------------------------------------------------- ------------------------------------------------------ BUYER AGREES TO PAY SELLER, OR IF THIS CONTRACT IS ASSIGNED TO ASSIGNEE OF SELLER, THE "TOTAL OF PAYMENTS" (ITEM 10) IN ACCORDANCE WITH THE FOLLOWING SCHEDULE PAYMENTS IN NUMBER AND AMOUNT ARE DUE EACH SUCCESSIVE MONTH ON THE SAME DAY AS THE STARTING DATE - ----------------------------------------------------------------------------------------------------------------------------- NUMBER OF STARTING DATE ENDING DATE AMOUNT OF EACH TOTAL TOTAL DOWN PAYMENT PAYMENTS PAYMENTS (5A + 5B - 5C) $ 78,000.00 - ----------------------------------------------------------------------------------------------------------------------------- 36 02-01-1998 01-01-2001 $ 4,130.55 $148,699.80 6. UNPAID BALANCE OF CASH PRICE - ---------------------------------------------------------------------- (4 LESS 5) $134,519.50 ------------------------------------------------------ 7A. CERT. OF TITLE & $ 0.00 LIEN FILING FEE: ------------------------------------------------------ B. OTHER FEES: $250.00 ------------------------------------------------------ TOTAL OTHER CHARGES $ 250.000 ------------------------------------------------------ 8. UNPAID BALANCE (AMOUNT FINANCED): (TOTAL OF 6 & 7) $134,769.50 ------------------------------------------------------ 9. FINANCE CHARGE $ 13,930.30 - ----------------------------------------------------------------------------------------------------------------------------- 36 TOTAL NUMBER OF PAYMENTS TOTAL OF PAYMENTS(10) $148,699.80 10. TOTAL OF PAYMENTS (TOTAL OF 8 & 9) $148,699.80 - ----------------------------------------------------------------------------------------------------------------------------- DATE FINANCE BEGINS TO ACCRUE 11. TOTAL TIME PRICE: (IF DIFFERENT THAN CONTRACT DATE): (TOTAL OF 4, 7 & 9) $226,699.80 - ----------------------------------------------------------------------------------------------------------------------------
EX-10.63 14 LEASE AGREEMENT WITH CIT EXHIBIT 10.63 MASTER LEASE AGREEMENT MASTER LEASE AGREEMENT ("Master Lease") dated as of 5/6/97 between The CIT Group/Equipment Financing Inc. (Lessor). having a place of business at P.O. Box 27248 Temoe AZ 85285-7248 -------------------------------------------------- Address City State Zip Code and Meadow Valley Contractors, Inc. ("Lessee") ------------------------------------------------------------------ having a place of business at 4411 South 40th Street Phoenix AZ 85040 -------------------------------------------------- Address City State Zip Code This Master Lease Agreement provides a set of terms and conditions that the parties hereto intend to be applicable to various transactions for the lease of personal property. Each lease contract shall be evidenced by an equipment schedule ("Schedule") executed by Lessor and Lessee that explicitly incorporates the provisions of this Master Lease Agreement and that sets forth specific terms of that particular lease contract. Where the provisions of a Schedule conflict with the terms hereof, the provisions of the Schedule shall prevail. Each Schedule shall constitute a complete and separate lease agreement, independent of all other Schedules and without any requirement of being accompanied by an originally executed copy of this Master Lease Agreement. The term "Lease when used herein shall refer to an individual Schedule. One originally executed copy of the Schedule shall be denominated "Originally Executed Copy No. 1 of 1 originally executed copies and such copy shall be retained by Lessor. If more than one copy of the Schedule is executed by Lessor and Lessee, all such other copies shall be numbered consecutively with numbers greater than 1. Only transfer of possession by Lessor of the originally executed copy denominated "Originally Executed Copy No. 1" shall be effective for purposes of perfecting an interest in such Schedule by possession. 1. EQUIPMENT LEASED AND TERM. This Lease shall cover such personal property as is described in any Schedule executed by or pursuant to the authority of Lessee accepted by Lessor in writing and identified as a part of this Lease (which personal property with all replacement parts, additional repairs, accessions and accessories incorporated therein and/or affixed thereto is hereinafter called the "Equipment"). Lessor here??? leases to Lessee and Lessee hereby hires and takes from Lessor, upon and subject to the covenants and conditions hereinafter contained, the Equipment described in any Schedule. Notwithstanding the commencement date of the term of this Lease with respect to any item of Equipment, Lessee agrees that all risk of loss of the Equipment shall be on Lessee from and after shipment of the Equipment to Lessee by the seller thereof, F.O.B. seller's point of shipment, the date of such shipment be????? hereinafter called "date of shipment." The term of this Lease with respect to any item of Equipment shall be for the period as set forth in the Schedule. Lessee hereby gives Lessor authority to insert the actual commencement date and date of first monthly rental for an item of Equipment in any Schedule as well as such items as serial numbers if such are not already inserted when such Schedule executed by Lessee. "Seller" as used in this Lease means the supplier from which Lessor acquires any item of Equipment. 2. RENT. The aggregate rent payable with respect to each item of Equipment shall be in the amount shown with respect to such item on Schedule. Lessee shall pay to Lessor the aggregate rental for each item of Equipment for the full period and term for which Equipment is leased, such rental to be payable at such times and in such amounts for each item of Equipment as shown in applicable Schedule. All rent shall be paid at Lessor's place of business shown above, or such other place as Lessor may designate by written notice to Lessee. All rents shall be paid without notice or demand and without abatement, deduction or set off of any amount whatsoever. The operation and use of the Equipment shall be at the risk of Lessee and not of Lessor and the obligation of Lessee pay rent hereunder shall be unconditional. 19. SPECIAL PROVISIONS. If Lessee is a corporation, this Lease is executed by authority of its Board or Directors. If Lessee is a partnership or joint venture, this Lease is executed by authority of all its partners or co-venturers. Dated: 5/6/97 ------------- LESSEE: Meadow Valley Contractors, Inc. - --------------------------------------------------------------- Name of individual, corporation or partnership By /s/ Kenneth D. Nelson Title VICE PRESIDENT ---------------------------- --------------------------- If corporation, have signed by President, Vice President or Treasurer, and give official title. If owner or partner, state which. LESSOR: THE CIT GROUP/EQUIPMENT FINANCING, INC. By [SIGNATURE ILLEGIBLE] Title SCOM ---------------------------- --------------------------- ________________________________________________________________________________ If Lessee is a partnership, enter: Partners' names Home addresses - --------------- -------------- THE CIT GROUP/EQUIPMENT FINANCING, INC. P.O. Box 27248 - -------------------------------------------------------- Address Tempe AZ 85285-7248 - -------------------------------------------------------- City State Zip Code Gentlemen: You are irrevocably instructed to disburse the proceeds of the Schedule of Leased Equipment No. 1 dated 5-6-97, to Master Lease Agreement dated 5-6-97, between Meadow Valley Contractors, Inc., as Lessee and the CIT Group/Equipment -------------------------------- Financing., as Lessor, as follows: Payee Names and Addresses Amount - ------------------------------------------------- ----------------- Meadow Valley Contractors, Inc. $ 170,000.00 ---------------- The CIT Group/Equipment Financing, Inc. $ 250.00 ---------------- (Non refundable origination fees) $________________ $________________ $________________ $________________ $________________ Total Proceeds $ 170,250.00 ---------------- Very truly yours, Meadow Valley Contractors, Inc. - -------------------------------------------------------- By /s/ Kenneth D. Nelson Title VICE PRESIDENT - -------------------------------- ------------------ Page 1 of 1 EX-10.64 15 LEASE AGREEMENT WITH CIT EXHIBIT 10.64 MASTER LEASE AGREEMENT MASTER LEASE AGREEMENT ("Master Lease") dated as of 5/6/97 between The CIT Group/Equipment Financing Inc. Lessor), having a place of business at P.O Box 27248 Tempe AZ 85285-7248 ------------------------------------------------- Address City State Zip Code and Meadow Valley Contractors, Inc. ("Lessee") ------------------------------------------------------------------ having a place of business at 4411 South 40th Street Phoenix AZ 85040 -------------------------------------------------- Address City State Zip code This Master Lease Agreement provides a set of terms and conditions that the parties hereto intend to be applicable to various transactions for the lease of personal property. Each lease contract shall be evidenced by an equipment schedule ("Schedule)" executed by Lessor and Lessee that explicitly incorporates the provisions of this Master Lease Agreement and that sets forth specific terms of that particular lease contract. Where the provisions of a Schedule conflict with the terms hereof, the provisions of the Schedule shall prevail. Each Schedule shall constitute a complete and separate lease agreement, independent of all other Schedules and without any requirement of being accompanied by an originally executed copy of this Master Lease Agreement. The term "Lease when used herein shall refer to an individual Schedule. One originally executed copy of this Schedule shall be denominated "Originally Executed Copy No. 1 of 1 originally executed copies and such copy shall be retained by Lessor. If more than one copy of the Schedule is executed by Lessor and Lessee, all such other copies shall be numbered consecutively with numbers greater than 1. Only transfer of possession by Lessor of the originally executed copy denominated "Originally Executed Copy No. 1" shall be effective for purposes of perfecting an interest in such Schedule by possession. 1. EQUIPMENT LEASED AND TERM. This Lease shall cover such personal property as is described in any Schedule executed by or pursuant to the authority of Lessee accepted by Lessor in writing and identified as a part of this Lease (which personal property with all replacement parts, additional repairs, accessions and accessories incorporated therein and/or affixed thereto is hereinafter called the "Equipment"). Lessor here leases to Lessee and Lessee hereby hires and takes from Lessor, upon and subject to the covenants and conditions hereinafter contained, the Equipment described in any Schedule. Notwithstanding the commencement date of the term of this Lease with respect to any item of Equipment, Lessee agrees that all risk of loss of the Equipment shall be on Lessee from and after shipment of the Equipment to Lessee by the seller thereof, F.O.B. seller's point of shipment, the date of such shipment be hereinafter called "date of shipment." The term of this Lease with respect to any item of Equipment shall be for the period as set forth in the Schedule. Lessee hereby gives Lessor authority to insert the actual commencement date and date of first monthly rental for an item of Equipment in any Schedule as well as such items as serial numbers if such are not already inserted when such Schedule executed by Lessee. "Seller" as used in this Lease means the supplier from which Lessor acquired any item of Equipment. 2. RENT The aggregate rent payable with respect to each item of Equipment shall be in the amount shown with respect to such item on Schedule. Lessee shall pay to Lessor the aggregate rental for each item of Equipment for the full period and term for which Equipment is leased, such rental to be payable at such times and in such amounts for each item of Equipment as shown in applicable Schedule. All rent shall be paid at Lessor's place of business shown above, or such other place as Lessor may designate by written notice to Lessee. All rents shall be paid without notice or demand and without abatement, deduction or set off of any amount whatsoever. The operation and use of the Equipment shall be at the risk of Lessee and not of Lessor and the obligation of Lessee pay rent hereunder shall be unconditional. 19. SPECIAL PROVISIONS If Lessee is a corporation, this Lease is executed by authority of its Board of Directors. If Lessee is a partnership or joint venture, this Lease is executed by authority of all its partners or co-ventures. Dated: 5/6/97 --------------------- LESSEE: Meadow Valley Contractors, Inc. - ------------------------------------------------------------ Name of individual, corporation or partnership By /s/ Kenneth D. Nelson Title Vice President -------------------------------- --------------------- If corporation, have signed by President, Vice President or Treasurer, and give official title, if owner or partner, state which. LESSOR: THE CIT GROUP/EQUIPMENT FINANCING, INC. By [SIGNATURE ILLEGIBLE] Title Scom -------------------------------- --------------------- ________________________________________________________________________________ If Lessee is a partnership, enter: Partners' names Home addresses - --------------- -------------- Page 7 of ??? ________________________ Date THE CIT GROUP/EQUIPMENT FINANCING, INC. P. O. BOX 27248 - ------------------------------------------------------- Address Tempe AZ 85285-7248 - ------------------------------------------------------- City State Zip Code Gentlemen: You are irrevocably instructed to disburse the proceeds of the Schedule of Leased Equipment No. 2 dated __________________________, to Master Lease Agreement dated May 6, 1997, between Meadow Valley Contracting, Inc., as Lessee and the CIT Group/Equipment Financing., as Lessor, as follows:
Payee Names and Addresses Amount - ----------------------------------------------- -------------------- Meadow Valley Contractors, Inc. $ 158,140,00 ------------------ $ __________________ The CIT Group/Equipment Financing, Inc. (Non Refundable Processing Fees) $ 350,00 ------------------ $ __________________ $ __________________ $ __________________ $ __________________ Total Proceeds $ 158,490.00 ------------------
Very truly yours, Meadow Valley Contractors, Inc. - ------------------------------------------------------ By Gary W. Burnell Title VP/CFO ----------------------------- ------------------ Page 1 of 1 EX-10.65 16 CONTRACT BETWEEN REGISTRANT AND UTAH DOT EXHIBIT 10.65 CONTRACT THIS AGREEMENT made and executed in Three (3) original counterparts this 2nd day of July A.D. 1997 between the Utah Department of Transportation, hereinafter called "Department," first party, and Meadow Valley Contractors, Inc. hereinafter called "Contractor," second party. WITNESSETH, That for and in consideration of payments, hereinafter mentioned, to be made by the Department, the Contractor agrees to furnish all labor and equipment; to furnish and deliver all materials not specially mentioned as being furnished by the Department and to do and perform all work in the CONSTRUCTION OF ROADWAY IN SALT LAKE COUNTY, State of Utah, the same being identified as SP-0154(9)1 for the approximate sum of SEVENTEEN MILLION EIGHT HUNDRED SIXTY-TWO THOUSAND ONE HUNDRED FORTY-SIX and 00/100 Dollars ($17,862,146.00). The Contractor further covenants and agrees that all of said work and labor shall be done and performed in the best and most workmanlike manner and in strict conformity with the plans, and specifications. The said plans and specifications and the notice to contractors, instruction to bidders, the proposal, special provisions and contract bond are hereby made a part of this agreement as fully and to the same effect as if the same had been set forth at length herein. In consideration of the foregoing premises, the Department agrees to pay to Contractor in the manner and in the amount provided in the said specification and proposal. IN WITNESS WHEREOF, the parties hereto have subscribed their names through their proper officers thereunto duly authorized as of the day and year first above written. Attest: UTAH DEPARTMENT OF TRANSPORTATION [SIGNATURE ILLEGIBLE] [SIGNATURE ILLEGIBLE] - -------------------------------- ---------------------------------------- Secretary Director of Transportation - First Party Witnesses: /s/ Lisa Forsling Meadow Valley Contractors, Inc. - -------------------------------- ----------------------------------------- Second Party [SIGNATURE ILLEGIBLE] - -------------------------------- Approved as to form: by [SIGNATURE ILLEGIBLE] ----------------------------------- By [SIGNATURE ILLEGIBLE] UTAH AREA MANAGER. ------------------------------ ----------------------------------- Assistant Attorney General Title #83-243374-5501 APPROVED________________________ ------------------------------------- Director of Finance Utah Contractor License Number FUNDS AVAILABLE______________________ [SIGNATURE ILLEGIBLE] 7-7-97 ---------------------- ------------- Budget Officer Date EX-10.66 17 CONTRACT BETWEEN REGISTRANT & CLARK COUNTY EXHIBIT 10.66 CONTRACT -------- THIS CONTRACT, made and entered into this 3rd day of June, 1997, between Clark County, a political subdivision of the State of Nevada, hereinafter referred to as the "OWNER" and Meadow Valley Contractors, Inc., (a Corporation organized and existing under the laws of the State of Nevada), hereinafter referred to as the "CONTRACTOR". WITNESSETH: That said CONTRACTOR having been awarded the Contract for the construction of the MOBILE HOME PARK SITE DEVELOPMENT AND COMMON FACILITIES in Las Vegas, Nevada. in accordance with the Bid therefore and for and in consideration of the promises and of the covenants and agreements, and of the payments herein specified, to be made and performed by the CONTRACTOR and the OWNER, the CONTRACTOR hereby covenants and agrees to and with the OWNER to undertake and execute all of the said named Work, in a good, substantial and workmanlike manner, and to furnish all the materials and all the tools and labor necessary to properly perform and complete the Work ready for use, in strict accordance with all the provisions of the Contract including the following Exhibits attached hereto and made a part hereof: Invitation to Bid Bid Contract Exhibit "B"-Special Conditions Exhibit "A"-General Conditions Exhibit "C"-Compensation Conditions Exhibit "D"-Addenda Exhibit "E"-Technical Specifications Exhibit "F"-List of Drawings Contract Drawings Contract No.2062 Conformed Document Contract June 03, 1997 Page 1 of 11 and accept as full compensation for the satisfactory performance of this Contract the sum of Seven Million Four Hundred Seventy Two Thousand One Hundred Twenty Nine Dollars and Eighteen Cents ($7,472,129.18). The prices named in the Bid are for the completed Work, and include the furnishing of all materials and all labor, tools, and appliances and all expense, direct or indirect, connected with the proper execution of the Work and of maintaining the same until it is accepted by the OWNER. In the event that unit prices are included in the base bid amount, the sum stated above is an estimated total Contract amount. Full compensation will be based upon the amount or number of each unit of work approved by the OWNER as satisfactorily completed in accordance with the Contract, multiplied by the applicable unit price set forth in the Bid. The CONTRACTOR shall commence the Work to be performed under this Contract on the date set by the OWNER in the written Notice to Proceed, continuing the Work with diligence and shall complete the entire Work in accordance with ATTACHMENT NO. TWO TO BID, MILESTONE AND LIQUIDATED DAMAGES DATA. Further, in the event interim milestone completion dates are established in the above ATTACHMENT NO. TWO TO BID for separable portions of the Work, the CONTRACTOR agrees to complete said separable portions of the Work in accordance with said milestone dates. CONTRACTOR acknowledges that the time for completion of the Work is sufficient for it to perform all the Work. In case of failure on the part of the CONTRACTOR, to complete the Work within the time(s) specified in the Contract, or within such additional time(s) as may be granted by formal action of the Board of County Commissioners or fails to prosecute the Work, or any separable part thereof, with such diligence as will insure its completion within the time(s) specified in the Contract or any extensions thereof, the CONTRACTOR shall pay to the OWNER, as liquidated damages, the sum(s) indicated in ATTACHMENT NO. TWO TO BID if so established therein for milestone completion dates of separable parts of the Work and final completion of the Work. Contract No. 2062 Conformed Document Contract June 03, 1997 Page 2 of 11 The Award of this Contract is subject to the condition precedent that the CONTRACTOR provide a Performance Bond and a Labor and Material Payment Bond as required by the Contract Documents. IN WITNESS WHEREOF, the Board of County Commissioners of Clark County, Nevada, has authorized it's Director of Aviation to execute this Contract on behalf of the said OWNER, and the CONTRACTOR has hereunto set his hand and seal the day and year above written. CLARK COUNTY, NEVADA By: /s/ Randall H. Walker -------------------------------- RANDALL H. WALKER Director of Aviation NOTE: Witnesses not required for corporation, but Corporate Certificate must be complete. Two witnesses required for Partnerships and Individuals. Partnerships must complete Partnership Certificate. ________________________________ MEADOW VALLEY CONTRACTORS, INC. Witness BY: /s/ Alan Terril ________________________________ -------------------------------- Witness ALAN TERRIL Vice President [SEAL] Contract No. 2062 Conformed Document Contract June 03, 1997 Page 3 of 11 EX-10.67 18 CONTRACT B/W REGISTRANT AND NEW MEXICO STATE EXHIBIT 10.67 Form No. A-555 CONTRACT NO. E03383 Rev. 9-87 New Mexico State Highway and Transportation Department CONTRACT THIS CONTRACT, made this 26th day of NOVEMBER 1997, between the NEW MEXICO STATE HIGHWAY AND TRANSPORTATION DEPARTMENT AND MEADOW VALLEY CONTRACTORS, INC. - -------------------------------------------------------------------------------- (State whether individual, partnership, corporation or joint venture, if incorporated, give State of incorporation) of PHOENIX, ARIZONA ------------------------------------------------------------------------------ his or its successors and assign, hereinafter call the Contractor. In consideration of the payment or payments herein specified and agreed to by the State, the contractor agrees to furnish and deliver all the labor, materials and equipment, necessary to do and perform all the work required in the construction of Project No. TPA-0048(12) Control No. 1738 located in Lincoln County, State of New Mexico at the unit prices bid by the contractor in his original proposal, which proposal and prices stated, together with the plans, specifications, supplemental specifications and acknowledged addenda of the State Highway and Transportation Department are made a part of this contract and are incorporated herein by reference. The performance and payment bond given by the contractor in the sum of $8,399,970.00 to secure the proper compliance with the terms, conditions and provisions of this contract is attached hereto and made a part of this contract. The Contractor certifies that he has obtained and will maintain in force all insurance in the designated amount as set forth in the specifications in a form and amount satisfactory to the New Mexico State Highway and Transportation Department. MEADOW VALLEY CONTRACTORS, INC. CONTRACTOR BY /s/ Bradley E. Larson NEW MEXICO STATE HIGHWAY & TRANSPORTATION DEPT. --------------------- _______________________________________________ BRADLEY E. LARSON TITLE PRESIDENT BY [SIGNATURE ILLEGIBLE] ------------------- --------------------------------------------- SECRETARY OF STATE HIGHWAY & TRANSPORTATION DEPT. CORPORATE ACKNOWLEDGMENT STATE OF ARIZONA ) COUNTY OF MARICOPA ) SS. The foregoing instrument was acknowledgment before me this 20th day of ---- November, 1997 by JULIE L. BERGO Secretary - -------- -- ------------------- ------------------- (Name of Officer) (Title of Officer) of Meadow Valley Contractors, Inc. ------------------------------------------------ (Name of Corporation) an NEVADA corporation, ---------------------------------------------------------------- (State whether individual, partnership, corporation or joint venture, if incorporated, give State of incorporation) on behalf of said corporation. My Commission expires: Arminda Palacio ---------------------- ______________________________ NOTARY PUBLIC [SEAL] EX-10.68 19 CONTRACT B/W REGISTRANT AND SALT LAKE CITY CORP. EXHIBIT 10.68 AGREEMENT THIS AGREEMENT is made and entered into as of the _____________ day of JULY 21, 1997 by and between SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah, (hereinafter "City") and Meadow Valley Contractors, Inc., hereinafter "Contractor", whose address is 1598 North Hillfield Road Suite C Layton, Utah 84041; WITNESSETH: The Contractor and the City, for the consideration hereinafter named, agree as follows: 1. SCOPE OF WORK. A. Contractor agrees to furnish all labor, materials and equipment necessary to perform all of the Work required in the Contract Documents for the Project titled Taxiway G Extension - North End, No. 54 1077 0276. 2. TIME OF COMPLETION. A. The Work under this Agreement shall commence following issuance of the Notice to Proceed and shall be completed within the time allowed indicated on Page B-3 of the Contractor's Bid. 3. CONSIDERATION. A. The City shall pay the Contractor for the performance of all obligations set forth herein the sum of Eight Million Nine Hundred Ninety-Nine Thousand Five Hundred Three Dollars. ($8,999,503.00); subject to the provisions of paragraph 3C below and Article 9 of this Agreement. A-1 B. The Schedules of Prices hereunder are pursuant to Contractor's Bid dated June 11, 1997. C. The City agrees to pay and the Contractor agrees to accept for full performance of this Agreement, the lump sum agreed upon, or a sum which is based upon the actual quantities used or constructed in accordance with the Contract Documents or a combination thereof. All measurements will be performed by the City's Engineer or his authorized representative. The sum also includes the cost of all bonds, insurance, permits and fees required herein and all charges, expenses or assessments of whatever kind or character. Claims for services allegedly furnished by Contractor but not specifically provided for herein shall not be honored by the City. 4. LIQUIDATED DAMAGES. A. Time is the essence of this Agreement. In view of the difficulty of determining the City's damages caused by late completion the parties hereby agree, fix and determine that the Contractor shall be responsible to pay the City liquidated compensatory damages in such amounts and upon such terms as are specified below. B. Contractor agrees that the payment of liquidated damages shall commence on the calendar day after the date fixed for completion including any extensions of additional time which may have been allowed in writing. From and after said date, the City shall be entitled to deduct and retain said liquidated damages out of any monies which may be due or become due to the Contractor, and the City may require the Contractor to pay the City liquidated damages for each calendar day after said date until the City accepts the project as substantially complete. C. Liquidated damages shall be in the amount specified on page B-3 of the Contractor's bid. D. After the City has accepted substantial completion, liquidated damages shall not accrue while the City makes A-2 damages from such a disturbance. The parties agree that Contractor will pay as liquidated damages for each such disturbance the sum of $1,000 to cover such damage and expense, which sum may be deducted from the Contractor's compensation. 28. CONTROLLING LAW. A. The interpretation of this Agreement shall be governed by the laws of the State of Utah. Any court action arising from this Agreement shall be brought in a federal or state court with appropriate jurisdiction in the City of Salt Lake, State of Utah. 29. ASSIGNMENT. A. This Agreement or any benefit, obligation or part thereof cannot be assigned by either party without the prior written consent of the other. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. SALT LAKE CITY CORPORATION By /s/ Russell Widmar ------------------------------------- EXECUTIVE DIRECTOR - SALT LAKE CITY AIRPORT AUTHORITY ATTEST: /s/ Christine Meeker - -------------------------- CHIEF DEPUTY CITY RECORDER /s/ Kenneth D. Nelson (Seal) [ SEAL ] -------------------------------- VICE PRESIDENT MEADOW VALLEY CONTRACTORS, INC. (Seal) -------------------------------- CONTRACTOR ________________________________ (Seal) A-14 CITY ACKNOWLEDGMENT ------------------- STATE OF UTAH ) : COUNTY OF SALT LAKE ) On the 21 day of July, 1997, personally appeared before me RUSSELL C. WIDMAR and CHRISTINE MEEKER, who being by me duly sworn, did say that they are the EXECUTIVE DIRECTOR - SALT LAKE CITY AIRPORT AUTHORITY and CHIEF DEPUTY CITY RECORDER, respectively, of SALT LAKE CITY CORPORATION, and said persons acknowledged to me that said corporation executed the same. /s/ Scott C. Crandall --------------------------------------- NOTARY PUBLIC, residing in SALT LAKE COUNTY ----------------- My Commission Expires: [SEAL] _________________________ CORPORATION ACKNOWLEDGMENT -------------------------- STATE OF UTAH ) : COUNTY OF SALT LAKE) On the 30 day of June, 1997, personally appeared before me KENNETH D. NELSON, who being by me duly sworn did say that he is the VICE PRESIDENT of MEADOW VALLEY CONTRACTORS, INC., a corporation, and that the foregoing instrument was signed in behalf of said corporation by authority of a resolution (or bylaws) of its Board of Directors; and said persons acknowledged to me that said corporation executed the same. /s/ Lisa Forsling Layton, Utah -------------------------- --------------------------------- LISA FORSLING NOTARY PUBLIC, residing in ___________________ My Commission Expires: July 24, 2000 [SEAL] - ------------------------- A-15 EX-10.69 20 CONTRACT B/W REGISTRANT & UTAH DOT EXHIBIT 10.69 CONTRACT THIS AGREEMENT made and executed in THREE (3) original counterparts this 2nd day of July A.D. 1997 between the Utah Department of Transportation, hereinafter called "Department," first party, and MEADOW VALLEY CONTRACTORS, INC. hereinafter called "Contractor," second party. WITNESSETH, That for and in consideration of payments, hereinafter mentioned, to be made by the Department, the Contractor agrees to furnish all labor and equipment; to furnish and deliver all materials not specifically mentioned as being furnished by the Department and to do and perform all work in the CONSTRUCTION OF ROADWAY IN SALT LAKE COUNTY, State of Utah, the same being identified as SP-0154(9)1 for the approximate sum of SEVENTEEN MILLION EIGHT HUNDRED SIXTY-TWO THOUSAND ONE HUNDRED FORTY-SIX AND 00/100 Dollars ($17,862,146.00). The Contractor further covenants and agrees that all of said work and labor shall be done and performed in the best and most workmanlike manner and in strict conformity with the plans, and specifications. The said plans and specifications and the notice to contractors, instruction to bidders, the proposal, special provisions and contract bond are hereby made a part of this agreement as fully and to the same effect as if the same had been set forth at length herein. In consideration of the foregoing premises, the Department agrees to pay to Contractor in the manner and in the amount provided in the said specification and proposal. IN WITNESS WHEREOF, the parties hereto have subscribed their names through their proper officers thereunto duly authorized as of the day and year first above written. Attest: UTAH DEPARTMENT OF TRANSPORTATION [SIGNATURE ILLEGIBLE] [SIGNATURE ILLEGIBLE] - -------------------------------- ---------------------------------------- Secretary Director of Transportation - First Party Witnesses: [SIGNATURE ILLEGIBLE] Meadow Valley Contractors, Inc. - -------------------------------- ----------------------------------------- Second Party [SIGNATURE ILLEGIBLE] - -------------------------------- Approved as to form: by [SIGNATURE ILLEGIBLE] ----------------------------------- By [SIGNATURE ILLEGIBLE] UTAH AREA MANAGER. ------------------------------ ----------------------------------- Assistant Attorney General Title #83-243374-5501 APPROVED________________________ ------------------------------------- Director of Finance Utah Contractor License Number FUNDS AVAILABLE______________________ [SIGNATURE ILLEGIBLE] 7-7-97 ---------------------- ------------- Budget Officer Date EX-10.70 21 CONTRACT B/W REGISTRANT & ARIZONA DOT EXHIBIT 10.70 CONTRACT AGREEMENT THIS AGREEMENT, made and entered into this 24th day of June, 1997, by and between the STATE OF ARIZONA, acting by and through its State Engineer duly authorized by the Director, Arizona Department of Transportation to enter into such agreement, party of the first part, and MEADOW VALLEY CONTRACTORS, INC. hereinafter called the Contractor, party of the second part. WITNESSETH: That the said Contractor, for in consideration of the sum to be paid him by said State Arizona in the manner and at the time hereinafter provided, and of the other covenants and agreements herein contained, hereby agrees, for himself, heirs, administrators, successors and assigns as follows: ARTICLE I - SCOPE OF WORK: The Contractor shall perform in a workmanlike and substantial manner and to the satisfaction of the State Engineer, all the work specified under TRACS/Project No. 101L MA 041 H406001C RAM-600-1-542 PIMA FREEWAY (101L) (Shea Boulevard - McDonald Drive) and furnish at his own cost and expense all necessary machinery, tools, apparatus, materials and labor to complete the work in the most substantial and workmanlike manner according to the Plans and Specifications therefor on file with the State Engineer and such modifications of the same and other directions that may be made by the State Engineer as provided herein. ARTICLE II - CONTRACT DOCUMENTS: It is further agreed that the Proposal, Plans, Standard Specifications, Special Provisions, Contract Bond(s) and any and all Supplementary Agreements, and any and all requirements necessary to complete the work in a substantial and acceptable manner, and any and all equipment and progress statements required, are hereby referred to and made a part of this contract, and shall have the same force and effect as though all of the same were fully inserted herein. ARTICLE III - WARRANTY: The Contractor expressly warrants that he is free from obligation of any other person or persons for services rendered, or supposed to have rendered, in the procurement of this contract. He further agrees that any breach of the Warranty shall constitute adequate cause for the annulment of the Contract by the State of Arizona and that the State of Arizona may retain to its own use from any sums of money due or become due thereunder, an amount thereof equal to any brokerage, commission, or percentage so paid, or agreed to be paid. ARTICLE IV - TIME OF COMPLETION: The Contractor further covenants and agrees that all of the said materials shall be furnished and delivered and all of the said labor shall be done and performed in every respect to the satisfaction and approval of the State Engineer and that the said work shall be turned over to the State Engineer, complete and ready for use, on or before the specified time herein. The work shall be free and discharged of all claims and demands whatsoever for, or on account of any and all labor and materials used or furnished to be used in said work. It is expressly understood and agreed that in case of failure on the part of the Contractor, for any reason, except with the written consent of the State Engineer, to complete the entire work to the satisfaction of the State Engineer, and within the aforesaid time limit, the party of the first part shall deduct from any money due, or which may become due the Contractor, as liquidated damages, an amount in accordance with Subsection 108.09 of the Contract Specifications. If no money shall be due the Contractor, the State shall have a cause of action to recover against the Contractor in a court of competent jurisdiction, liquidated damages, in accordance with Subsection 108.09 of the Contract Specifications, said deduction to be made, or said sum to be recovered, not as a penalty, but as liquidated damages; provided, however, that upon receipt of written notice from the Contractor, of the existence of causes, as herein provided, over which said Contractor has no control and which must delay the completion of said work or any delay occasioned by the Arizona Department of Transportation, the State Engineer may extend the period hereinbefore specified for the completion of said work in accordance with the Specifications and in such case, the Contractor shall become liable for said liquidated damages for delays commencing from date said extension period shall expire. After the date as set up in Contract plus any extension granted, no further payments shall be made the Contractor until all work is completed and accepted by the State engineer. It is also agreed that the date of completion shall be that upon which the work is accepted by the State Engineer. ARTICLE V - CLAIMS FOR EXTRA WORK: It is distinctly understood and agreed that no claim for extra work or materials, not specifically herein provided, done or furnished by the Contractor, will be allowed by the State Engineer, nor shall the Contractor do any work or furnish any materials not covered by these Specifications and Contract, unless such work is ordered in writing by the State Engineer. In no event shall the Contractor incur any liability by reason of any oral direction or instruction that he may be given by the State Engineer, or his authorized representatives. It is the intent and meaning of this Article that all orders, directions, instructions, not contained in the Plans, Specifications, and Special Provisions, pertaining to the work shall be in writing, and the Contractor hereby waives any claims for compensation for work done, or materials furnished in violation thereof. ARTICLE VI - MISUNDERSTANDING OR DECEPTION: The party of the second part agrees that he has investigated the site of the work and all parts and appurtenances thereto and hereby waives any right to plead misunderstanding or deception as to location, character of work or materials, estimates of quantities or other conditions surrounding or being a part of the work and understands that the quantities given in the Bidding Schedule are approximate only, and hereby agrees to accept the quantities as actually placed and finally determined upon the completion of the work, in accordance with the Contract Documents. ARTICLE VII -PAYMENTS: For and in consideration of the faithful performance of the work herein embraced, as set forth in the Contract Agreement, Specifications, Special Provisions, Bidding Schedule and all general and detailed Specifications and Plans, which are a part hereof, and in accordance with the directions of the State Engineer and to his satisfaction or his authorized agents, the said State of Arizona agrees to pay to said Contractor the amount earned, computed from the actual quantities of work performed, as shown by the estimates of the State Engineer, and the unit prices named in the attached Bidding Schedule and Supplementary Agreements made a part hereof, and to make such payments in the manner and at the time provided in the specifications hereto appended. Sheet 1 of 2 ARTICLE VIII - IT IS EXPRESSLY UNDERSTOOD AND AGREED that no work shall be done nor any obligations incurred under this contract during any fiscal year which are in excess of the funds programmed and budgeted for this project for that fiscal year. ARTICLE IX - THE CONTRACTOR SHALL INDEMNIFY AND SAVE HARMLESS THE STATE, its officers and employees, from all suits, actions or claims of any character brought because of any injuries or damage received or sustained by any person, persons or property on account of the operations of the said contractor or an account of or in consequence of any neglect in safeguarding the work; or through use of acceptable materials in constructing the work; or because of any act or omission, neglect or misconduct of said contractor; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. The contractor shall indemnify and save harmless any county or incorporated city, its officers and employees, within the limits of which county or incorporated city work is being performed, all in the same manner and to the same extent as provided in the above paragraph. IT IS FURTHER UNDERSTOOD AND AGREED that all work required to be done under this contract in excess of the funds now appropriated and budgeted for this project shall not be done nor any obligation incurred therefor until such time as the Legislature appropriates the additional funds and the same are budgeted for this project by the Arizona Department of Transportation and in that event the parties hereto are bound to continue performance of this contract to the extent permitted by the funds so appropriated and budgeted. In the event that no funds are appropriated or budgeted for this project for the succeeding fiscal year, then this contract shall be null and void, except as to that portion for which funds have now been appropriated and budgeted, therefore, and no right of action or damages shall accrue to the benefit of the parties hereto as to that portion of the contract that may so become null and void. All parties are hereby put on notice that this contract (agreement) is subject to cancellation by the Governor pursuant to Arizona Revised Statutes Section 38-511. IT IS ALSO UNDERSTOOD AND AGREED that this contract is subject to A.R.S. 28-1824, 28-1825, 28-1826, together with all other limitations pursuant to the applicable laws of the State of Arizona relating to public contracts and expenditures. 101L MA 041 H406001C RAM-600-1-542 PIMA FREEWAY (101L) (Shea Boulevard - McDonald Drive) Witness our hands and seals this 24th day of JUNE 1997 STATE OF ARIZONA By: [SIGNATURE ILLEGIBLE] -------------------------------- for State Engineer EVIDENCE OF AUTHORITY TO SIGN THE CONTRACT MUST BE ON FILE WITH THE DEPARTMENT, OTHERWISE IT MUST BE FURNISHED WITH THE PROPOSAL. PARTY OF THE FIRST PART Meadow Valley Contractors, Inc. ----------------------------------- By: [SIGNATURE ILLEGIBLE] -------------------------------- Contractor Attest: [SIGNATURE ILLEGIBLE] PARTY OF THE SECOND PART ---------------------- Seal 12-0912 R8/88 Contract Agreement Sheet 2 of 2 ARTICLE IX SEPT. 1969 JULY 1969 JULY 1, 1974 STATUTORY PERFORMANCE BOND PURSUANT TO TITLE 34, CHAPTER 2, ARTICLE 2 OF THE ARIZONA REVISED STATUTES (PENALTY OF THIS BOND MUST BE 100% OF THE CONTRACT AMOUNT) KNOW ALL MEN BY THESE PRESENTS: Bond No. 184239 That MEADOW VALLEY CONTRACTORS, INC. (hereinafter called the Principal), As Principal, and THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. (hereinafter called Surety), a corporation organized and existing under the laws of the State of PENNSYLVANIA with its principal office in the city of New York, New York holding a certificate of authority to transact surety business in Arizona issued by the Director of the Department of Insurance, as Surety, are held and firmly bound unto the Arizona Department of Transportation (hereinafter called the Obligee in the amount of FIFTY-FOUR MILLION, SEVEN HUNDRED NINETY-EIGHT THOUSAND, FIVE HUNDRED EIGHTY-SEVEN AND 92/100 dollars ($54,798,587.92), for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrator, executors, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has agreed to enter into a certain contract with the Obligee for construction and completion of certain work described as 101L MA 041 H406001C RAM-600-1-542 PIMA FREEWAY (101L) (Shea Boulevard - McDonald Drive) which contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform and fulfill all the undertakings, covenants, terms, conditions and agreements of said contract during the original term of said contract any extension thereof, with or without notice to the Surety, and during the life of any guaranty required under the contract, and shall also perform and fulfill all the undertakings, covenants terms, conditions, and agreements of any and all duly authorized modifications of said contract that my hereafter be made, notice of which modifications to the Surety being hereby waived: then the above obligation shall be void, otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Title 34, Chapter 2, Article 2, of the Arizona Revised Statues, and all liabilities on this bond shall be determined in accordance with the provisions of said Title, Chapter and Article, to the extent as if they were copied at length herein. The prevailing party in a suit on this bond shall recover as a part of the judgment such reasonable attorneys' fees as may be fixed by a judge of the Court. Witness our hands this 5th day of June, 1997. MEADOW VALLEY CONTRACTORS, INC. /s/ Robert W. Bottcher - ---------------------------------------------- ---------------------------- PRINCIPAL SEAL BY ROBERT W. BOTTCHER AREA MANAGER THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA AND NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. /s/ Janina Monroe - ---------------------------------------------- ---------------------------- SURETY BY Janina Monroe, Attorney in Fact 1551 No. Tustin Avenue Willis Corroon Corporation #1000, Santa Ana, CA 92705 - ---------------------------------------------- ---------------------------- AGENCY OF RECORD AGENCY ADDRESS [SIGNATURE ILLEGIBLE] - ---------------------------------------------- ??? COUNTERSIGNATURE ??????????????????????????????????? PERFORMANCE BOND - ---------------------------------------------- ADDRESS SHEET 1 OF 1 602-870-7000 - ---------------------------------------------- PHONE NUMBER EX-10.71 22 CONTRACT B/W REGISTRANT & NEVADA DOT EXHIBIT 10.71 CONTRACT This Agreement, Made and entered into this 28th day of October, One Thousand Nine Hundred and Ninety-Seven, in quadruplicate between the State of Nevada, Department of Transportation thereof, party of the first part, and Meadow Valley Contractors, Inc. P.O. Box 549, of Moapa, NV 89025, party of the second part, hereinafter called the Contractor. Witnesseth, That the said party of the second part agrees with the said party of the first part, for the consideration and agreements hereinafter mentioned and contained to be made and performed by the said party of the first part, and under the conditions expressed in a bond bearing even date with these presents, and hereunto annexed, that he, the said party of the second part, shall and will at his own proper cost and expense, do all the work and furnish all the materials necessary for the substantial construction and completion, and to the satisfaction of said party of the first part, of a portion of the system of Highways of the State of Nevada, being in the county of Clark on Interstate ------------------- 15 and US 95 Interchange (Las Vegas Spaghetti Bowl), Route Sections 015-1 - -------------------------------------------------- ----- Mileposts IR-015-CL-MP 42.87, in strict conformity, in every part and ------------------ particular, with the annexed special provisions and specifications, and the plans entitled "State of Nevada, Department of Transportation; Construction Plans of Proposed State Highway in the County of Clark, from the --------------- California/Nevada State Line to 3,895 kilometers (2.42 miles) east of the - ------------------------------------------------------------------------- Junction with Route US 093, Route Sections 015-1" approved by the Director of - -------------------------- the Department of Transportation on April 18, 1997, which special provisions, -------------- specifications and plans are made a part hereof, and in full compliance with the terms of this agreement. And the Contractor hereby further agrees to receive and accept the prices set forth in the Proposal Schedule, hereto annexed and thereby made a part of this agreement, as full compensation for furnishing all materials and labor, and the doing of all work, in strict accordance with the plans, special provisions and specifications hereinbefore mentioned, to the satisfaction of the Engineer and in the manner and under the conditions hereinbefore specified. The said party of the First part hereby promises and agrees with the said Contractor, to employ, and does hereby employ, the said Contractor to provide the materials and do the work according to the terms and conditions herein contained and referred to, for the prices aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions above set forth; and the said parties themselves, their heirs, executors, administrators, successors, and assigns, do hereby agree to full performance of the covenants herein contained. The Contractor further agrees that no moneys payable under this contract shall be assigned by power of attorney, or otherwise, except upon the written consent of the Department. It is further agreed, by and between the parties hereto, that should there be any conflict between the terms of this instrument and the bid or proposal of said Contractor, then this instrument shall control, and nothing herein shall be considered an acceptance of the said terms of said proposal conflicting therewith. And the said Contractor hereby further agrees that the payment of the final amount due under this contract shall release the State of Nevada and the Department of Transportation from any and all claims or liability on account of work performed under this contract other than such claims, if any, as may be specifically excepted by the Contractor in writing at the time final payment is made. 478 IDR-DPC-0009(3) - 07/22/97 CONTRACT In Witness Whereof, The parties to these presents have hereunto set their hands and seals the year and date first above written. STATE OF NEVADA Attested: Through the Department of Transportation [SIGNATURE ILLEGIBLE] Dated November 24, 1997 - --------------------------------------- (Director, Department of Transportation) [SIGNATURE ILLEGIBLE] ------------------------------------ APPROVED AS TO FORM & LEGALITY (Chairman, Board of Directors, De- partment of Transportation) Meadow Valley Contractors, Inc. ------------------------------------ [Contractor] /s/ Brian Hutchins - --------------------------------------- (Deputy Attorney General Chief Counsel) By [SIGNATURE ILLEGIBLE] ---------------------------------- VICE-PRESIDENT ------------------------------------ CONTRACTOR'S ACKNOWLEDGEMENT [USE (A) OR (B)] (A) FOR AN INDIVIDUAL OR PARTNERSHIP STATE OF _______________________________________ ) ) SS COUNTY OF ______________________________________ ) On this _______________ day of ___________________, A.D. _____________________, personally appeared before me a ____________________________________________, (Notary Public, Judge or other officer) in and for ____________________________ County, State of ______________________ ______________________________________________________________________, known (Name) (or proved) to me to be the person(s) described in and executed the foregoing instrument, who acknowledged to me that he (they) executed the same freely and voluntarily and for the uses and purposes therein mentioned. ________________________________________________ (Notary Public, Judge or other officer) (B) FOR A CORPORATION STATE OF NEVADA ) ----------------------------------------- ) ) SS COUNTY OF CLARK ) ---------------------------------------- ) On this 13th day of November, A.D. 1997, personally appeared before me a Notary Public , in and for Clark County, State of - --------------------------------------- (Notary Public, Judge or other officer) Nevada ALAN TERRIL, known (or proved) to me to be the VICE-PRESIDENT ----------- ------------------------ (Name) (President, Vice President or Secretary) of the corporation that executed the foregoing instrument, and, upon oath, did depose that he is the officer of said corporation as above designated; that he is acquainted with the seal of said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; that the signatures to said instrument were made by officers of said corporation as indicated after said signatures; and that the said corporation executed the said instrument freely and voluntarily and for the uses and purposes therein mentioned. [SEAL] NANCY A. MCCAFFERTY ------------------------------------------- (Notary Public, Judge or other officer) 479 IDR-DPC-0009(3) - 07/22/97 Bond Executed in (4) counterparts Premium: $434,404.00 CONTRACTOR'S BOND Know All Men By These Presents, That We Meadow Valley Contractors, Inc. ---------------------------------------- Contractor P.O. Box 549, Moapa, NV 89025 as principal, and - ------------------------------------------------------------- Address of Contractor The Insurance Company of the State of Pennsylvania and National Union Fire Insurance Company of Pittsburgh, P.a. 70 Pine Street, New York, New York, 10270 - -------------------------------------------------------------------------------- Name and Address of Bonding Company Main Office as surety are held and firmly bound unto the State of Nevada in the sum of Ninety One Million Eight Hundred Thirteen Thousand Eight Hundred Eight Four - -------------------------------------------------------------------------------- Dollars and 08/100-------------------------------------------------------------- - -------------------------------------------------------------------------------- ($91,813,884.08 ) dollars, to be paid to the said State of Nevada; for which - ------------------- payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, firmly by these presents: That the total amount of said bond, two-thirds is conditioned that such work under the contract shall be performed in accordance with the plans and specifications and the terms of the contract, and one-third is conditioned to provide and secure payment for all materials, provisions, supplies, trucks, and other means of transportation used in, upon, or about, or for the performance of the work contracted to be done, and for any work or labor done thereon. The conditions of This Obligation is such, That Whereas, the above principal did on the 28th day of October, 1997, enter into a contract with the Department of ---- ------- -- Transportation of the State of Nevada, for the performance of the following specific work: Construction of a portion of the Interstate Highway System in ----------------------------------------------------------------- Clark County, Nevada, on Interstate 15 and US 95 Interchange (Las Vegas - -------------------------------------------------------------------------------- Spaghetti Bowl) - -------------- Now, if the said Meadow Valley Contractors, Inc. heirs, executors, -------------------------------------------- Contractor administrators, successors and assigns, shall well and truly perform their part of said contract, and if such work under the contract shall be performed in accordance with the plans and specifications, and in strict conformity with the terms of said contract, and every covenant and agreement therein contained, and further, if the said Meadow Valley Contractors, Inc. shall indemnify and save ------------------------------- Contractor harmless the State of Nevada from and against all damages which it may sustain by reason of liens for labor and materials furnished for said work, and if the said Meadow Valley Contractors, Inc. shall pay all laborers, mechanics and ------------------------------- Contractor material men and persons who may have supplied provisions, supplies, trucks, and other means of transportation used in, or about, or upon the said work, all just debts due to such persons, or to any person to whom any part of such work was given, and in addition all bills for labor, materials, sustenance, provisions, or supplies used or consumed by subcontractors or otherwise in the performance of the work contracted to be done, together with interest at the rate of twelve percent per annum, then this obligation shall be void; otherwise to remain in full force and effect. And the said surety hereby stipulates and agrees that no change, extension, alteration or addition to the terms of the contract or specifications shall in any wise affect its obligation of this Bond. [SIGNATURE ILLEGIBLE] Meadow Valley Contractors, Inc. - ------------------------------------- ------------------------------------- Signature of Nevada Resident Agent (Name of Contractor) [SIGNATURE ILLEGIBLE] By [SIGNATURE ILLEGIBLE] - ------------------------------------- ----------------------------------- Name of Bonding Company Agent Willis Corroon Corporation The Insurance Company of the State of Pennsylvania* - ------------------------------------- ------------------------------------- Address of Bonding Company Agent (Name of Bonding Company) 1551 N. Tustin Avenue, Suite 1000 By [SIGNATURE ILLEGIBLE] - ------------------------------------- ----------------------------------- SANTA ANA, CA. 92705 Attorney in Fact NOTE TO SURETY ON BOND:Certificates of Mike Parizino authority for Attorneys in Fact must be filed with the Nevada Department of Transportation. *and National Union Fire Insurance Company of Pittsburgh, Pa. EX-10.72 23 EMPLOYMENT AGREEMENT WITH MR. NELSON EXHIBIT 10.72 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is entered into as of the 1st day of October 1997, by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"), and Kenneth D. Nelson (the "Employee"). The Employer hereby employs the Employee on a full-time basis, and the Employee hereby accepts such full-time employment on the terms and conditions hereinafter set forth. 1. EMPLOYMENT. Employee is employed as the Vice President - Corporate ---------- Administration for the Employer. Employee shall perform all duties as outlined herein and as may be assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the Employer. The duties of the Employee shall specifically be: A) To provide oversight to the F-Cost system and provide assistance to projects to insure proper accounting and allocation of field costs. To provide supervisory assistance to Jim Vandegrift, or persons in similar positions, as it relates to cost accounting requirements on all construction projects in the Company. To provide assistance in preparing and submitting accurate and timely Cash Flow (ECAC's). B) To provide and/or delegate the training for proper use of F-Cost and Cash Flow (ECAC's). C) To provide oversight and coordinate the purchase, maintenance and upgrading of all information systems software and hardware, as well as the training of individuals as to their proper use. D) To be responsible for all aspects of Risk Management, including obtaining the most competitive insurance rates, negotiating with and selecting insurance carriers and determining proper allocation of insurance costs to operating units. E) To assist the Company Safety/EEO Director in minimizing workers compensation costs through competitive rates or assisting in countering potentially fraudulent claims. F) To coordinate with appropriate management all third party claims, bond claims, arbitration or litigation in which the Company may be involved and keep all interested parties informed of their status. G) To monitor, approve and allocate the Company's legal costs and assist/advise all operating units relative to selection of legal counsel. H) To negotiate with, select and maintain adequate and competitive employee health, welfare and dental plans. I) To maintain the Company's 401(k), pension plans or any other pension-related benefits that the Company has or may have in place. J) Assist in various tracking and reporting, such as the Company's bid results and backlog reports. K) Assist in preparing annual operating budgets, strategic plans and any special assignments related to acquisitions or mergers. L) Any other assignment as may be delegated by the Chief Executive Officer, the Chief Financial Officer or the Chief Operating Officer. 2. TERM. Subject to the provisions of termination provided in paragraph ---- 12, the initial term of this Agreement shall commence on October 1, 1997 and terminate on September 30, 2002. This Agreement may be extended by the mutual written agreement of the Employee and the Employer. 3. COMPENSATION. Employee shall receive a base salary of Ninety-five ------------ Thousand Dollars ($95,000,00) per year, payable in accordance with the regular payroll practices of Employer, and subject to applicable deductions of withholding taxes and other customary employment taxes. The Chief Executive Officer of Employer shall review Employee's salary at a minimum annually and may adjust Employee's salary upward to recognize improvement, achievement or expansion of Employee's responsibilities subject to approval of the Board Compensation Committee. Employee shall participate as a member of senior management in cash incentive plans as currently existing or as amended or adopted in the future by the Compensation Committee of Employer's Board of Directors. Cash bonus plans are subject to annual review and/or change as recommended by the Compensation Committee and approved by the Board of Directors. 4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible to participate ------------------------------- in the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock options shall be subject to the discretion of Meadow Valley Corporation's board of directors. 5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the ----------------- Employee's dependents, a comprehensive major medical, health, and dental insurance program comparable to the programs normally provided by other employers in the same industry and marketplace, and the Employer shall pay the cost of the Employee's portion of the premium. Should, at any time, the Employee opt to maintain a personal major medical and health insurance policy for himself and for his dependents and not participate in the Employer's group plan, then Employer shall reimburse Employee the lesser of the amount Employee pays for said personal policy, as evidenced by adequate documentation, or what Employer would otherwise be paying were Employee participating in the Employer's group plan. Should the Employee opt to maintain his own coverage, neither he nor his dependents shall be precluded from later participating in the Employer's group plan so long as they otherwise qualify for enrollment. At Employer's cost, Employer will maintain a life insurance policy covering Employee, with at least $250,000 of death benefits being payable, in a manner that is free of income tax, to Employee's estate or other beneficiaries designated by Employee. Employer agrees to provide Employee with an automobile for business-related use. In addition to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto. 2 Employer shall pay for, or reimburse Employee for, dues for his membership in industry related associations perceived as beneficial to Employer and as approved by the Chief Executive Officer or the Chief Operating Officer. So long as it is within the guidelines of the respective plan, Employee shall be given the opportunity to participate in Employer's 401(k) and any other plans made available to other members of executive management. Employee shall be entitled to receive all other employee benefits for senior management personnel upon the terms and conditions then in effect. 6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employer requires ------------------------------- the Employee to relocate, the Employer shall pay for all moving costs of reasonable and normal household effects, including up to six months storage of such household effects while Employee obtains a permanent residence in the relocation area. Employee shall obtain a minimum of two moving and storage quotes from reputable movers and Employer shall pay the most competitive rate. Employer shall provide Employee a subsistence allowance of Two Thousand Dollars ($2,000.00) per month for the lesser of nine months from the date of reassignment in a new location or until such time as the relocation of Employee and his/her spouse to the relocation area is complete. In addition, costs for one round-trip airline ticket per week between the Employee's previous location and the relocation area will be reimbursed by Employer to Employee during the same nine-month period, or less if relocation is completed earlier. Such tickets may be used either by Employee or by his/her spouse. 7. HOLIDAYS AND VACATION. --------------------- A) Employee shall be paid for the following seven (7) holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day and all other holidays for Employees of the Company as approved by the Chief Executive Officer or Board of Directors. B) Employee is entitled to four weeks vacation during the first year of employment and for each year thereafter. Unused vacation in any given year shall accrue to following years up to a maximum of eight weeks in any one year. 8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such ---------------------------- reasonable time as is necessary or is deemed reasonably necessary by the Employer to carry out all required duties and will devote full time to the Employer during normal business hours. The Employee shall at all times faithfully, with diligence and to the Employee's best good faith ability, experience and talents, perform all the duties that may be required pursuant to the express terms hereof to the reasonable satisfaction of the Employer, in accordance with customary professional standards. 9. WORKING FACILITIES. The Employee shall be furnished with all ------------------ facilities and services suitable to Employee's position and adequate for the performance of Employee's duties. 3 10. EXPENSES. The Employee is authorized to incur reasonable expenses for -------- promoting business of the Employer, including expenses for entertainment, travel and similar items. The Employer shall reimburse the Employee for all such expenses on the presentation by the Employee of itemized and adequately documented accounts of such expenditures. 11. DISABILITY. If unable to perform duties the terms of this Agreement ---------- by reason of illness or incapacity for a period of four weeks, Employee shall, commencing at the end of such four week period, be entitled to receive Employee's compensation hereunder for a period of up to and including a maximum of one year or until he is no longer disabled, whichever occurs first. After one year of disability at ful salary, the Employee, or his designated beneficiary, shall be provided with a disability insurance policy, if available, at no cost to Employee. The disability income policy would provide for monthly income benefits at the rate of sixty percent (60%) of the Employee's base salary at the time the disability occurred. The Company will attempt to procure a disability income policy that would provide monthly benefits until the Employee reaches 65 years of age or is no longer disabled whichever occurs first. If such a policy is unavailable, the Company will attempt to provide the best policy available. If no policy is available, no other disability income benefits will be provided. 12. TERMINATION. This Employment Agreement may be terminated under the ----------- following circumstances: A) WITHOUT CAUSE. Employer may terminate this Agreement at any time ------------- upon thirty (30) days written notice to Employee, but Employer shall be obligated to pay to Employee compensation in a lump sum for the balance of the term of this Agreement within 30 days of termination, unless Employee agrees to other payment terms. B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may ----------------------------------------------- terminate this Agreement at any time upon thirty (30) days written notice to Employer and Employer shall be obligated, in that event, to pay Employee compensation up to the date of the termination only. All accrued but unpaid compensation and Employee benefits shall be paid in cash within 30 days of termination, unless Employee agrees to other payment terms. C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may -------------------------------------------- terminate this Agreement for reasonable cause upon the unanimous vote of the Board of Directors and by thirty (30) days written notice to the Employee and Employer shall be obligated, in that event, to pay Employee compensation up to the date of termination only. For purposes hereof, "cause" shall be defined as meaning (i) such conduct by the Employee which constitutes material breach of this Agreement which is not cured within ninety (90) days of written notice to the Employee of said alleged breach or (ii) a material failure to competently perform Employee's duties as stated in paragraph 1 in accordance with applicable professional standards as stated in paragraphs 1 and 8 hereof provided that Employer has previously given Employee written notice and a reasonable opportunity to remedy such failure and such failure has a materially 4 adverse effect on the business or financial condition of Employer or (iii) material breach of Employee's fiduciary duty and such breach has a material adverse effect on the business or financial condition of Employer or (iv) egregiously improper or illegal conduct of the Employee which, based upon a unanimous good faith determination of the Board of Directors of the Employer, has a material adverse affect on Employer. D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may -------------------------------------------- terminate this Agreement for cause. In such event, Employer shall be obligated to pay Employee compensation in lump sum for the balance of the term of this Agreement within 30 days of termination or as Employee shall agree, plus damages suffered and expenses incurred by reason thereof. For this purpose "cause" shall mean (i) a material breach of this Agreement by Employer or (ii) failure of Employer to pay any amount owed Employee hereunder at the time and in the amount due or (iii) failure of Employer to follow applicable law, especially with respect to SEC filing and compliance over the objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously improper conduct with respect to dealing with Employee or in a manner which brings discredit to Employee. 13. CONFIDENTIALLY. Employee agrees not to disclose any confidential, -------------- propriety competitively sensitive information to persons who are not employees, directors, lenders, bonding agents, insurance companies or advisors of the Employer, except as required by law, without prior consent of the Employer, provided however, any disclosure involving this paragraph shall not result in a breach of this Agreement unless the disclosure has a materially adverse effect on the Employer. 14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall --------------- provide Employee with an Officer Indemnification Agreement in the form attached hereto. 15. NOTICES. All notices, demands, and communications given under this ------- Agreement ("Notice") shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, in the United States mail, postage prepaid, addressed as follows: If to Employer: Meadow Valley Corporation P.O. Box 60726 Phoenix, AZ 85082-0726 If to Employee: Kenneth D. Nelson 1255 E. Nance Mesa, AZ 85203 5 or at such address as a party may from time to time designate by Notice hereunder. Notice shall be effective upon delivery in person, or if mailed, at midnight on the third business day after the date of mailing. 16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise ----------------------- transfer this Agreement or any of its rights or obligations hereunder without the prior written consent to such assignment or transfer by the other party hereto; and all the provisions of this Agreement shall be binding upon the respective employees, successors, heirs and assigns of the parties; provided, however, the benefits payable to Employee hereunder in the event of disability or death or incapacity are payable to Employee's spouse or personal representative. 17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement ----------------------------------------------------- and the representations, warranties, covenants and other agreements (however characterized or described) by both parties and contained herein or made pursuant to the provisions hereof shall survive the execution and delivery of this Agreement. 18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and ------------------- all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of the Agreement into full force and effect. 19. SEVERABILITY. If any provision of this Agreement shall be held, ------------ declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason by any court of competent jurisdiction, governmental authority or otherwise, such holding, declaration or pronouncement shall not affect adversely any other provision of this Agreement, which shall otherwise remain in full force and effect and be enforced in accordance with its terms, and the effect of such holding, declaration or pronouncement shall be limited to the territory of jurisdiction in which made. 20. WAIVER. All the rights and remedies of either party under this ------ Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence. 21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in ------------------ accordance with, and governed by, the laws of the state of Arizona. Except as otherwise expressly stated herein, time is of the essence in performance under this Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings relating to the subject 6 matter of this Agreement as it relates to the parties' duties and obligations from and after April 1, 1997, and this Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The headings of this Agreement are for convenience in reference only and shall not limit or otherwise affect the meaning thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term ----------------------------------------------------- of this Agreement, if (i) Employer is involved in a merger, consolidation or other business combination in which Employer is not the surviving and controlling entity; or (ii) all or substantially all the assets of Employer or its principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the Pheonix metropolitan area in a manner not mutually acceptable to Employee and Employer, then Employee shall have the following rights: A) To terminate this Agreement with 30 days prior notice, in which event Employer shall pay Employee as if there a termination without cause by the Employer; and B) All options granted shall, to the extent not specifically prohibited by the stock option plan then in effect, vest immediately and be exercisable within one year of the occurring of one of the events set forth in (i), (ii) or (iii) above. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Meadow Valley Corporation /s/ Kenneth D. Nelson By /s/ Bradley E. Larson - ----------------------------- --------------------------------- Employee President/CEO 7 MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT ------------------------------------------ THIS AGREEMENT ("Agreement") is entered into and effective this 1st day of October, 1997, by and between Meadow Valley Corporation and Meadow Valley Contractors, Inc., Nevada corporations ("Corporation"), and Kenneth D. Nelson ("Indemnified Party"). WHEREAS, the Board of Directors has determined that it is in the best interest of the Corporation and its shareholders to agree to indemnify Indemnified Party (who is a Director and/or Officer of the Corporation) from and against certain liabilities for actions taken by him during the performance of his tasks for the Corporation. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INDEMNIFICATION. The Corporation hereby agrees to indemnify and hold --------------- harmless Indemnified Party to the maximum extent possible under all applicable laws against any and all claims, demands, debts, duties, liabilities, judgments, fines and amounts paid in settlement and expenses (including attorneys' fees and expenses) actually and reasonably incurred by Indemnified Party in connection with the investigation, defense, negotiation and settlement of any such claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation) to which Indemnified Party is or becomes a party, or is threatened to be made a party, by reason of the fact that Indemnified Party is an officer or a director of the Corporation or any of its subsidiaries. 2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Agreement ------------------------ shall be made by the Corporation: (a) For the amount of such losses for which the Indemnified Party is indemnified pursuant to any insurance purchased and maintained by the Corporation; or (b) In respect to remuneration paid to Indemnified Party if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (c) On account of any suit in which judgment is rendered against Indemnified Party for an accounting of profits made (i) for an improper personal profit without full and fair disclosure to the Corporation of all material conflicts of interest and not approved thereof by a majority of the disinterested members of the Board of Directors of the Corporation; or (ii) from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local law; or (d) On account of Indemnified Party's conduct which is finally determined to have been knowingly fraudulent, deliberately dishonest or willfully in violation of applicable law for which the corporation suffered actual financial damages; or (e) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. 3. CONTINUATION OF INDEMNITY. All agreements and obligations of the ------------------------- Corporation contained herein shall continue during the period Indemnified Party is an officer or director of the Corporation or a subsidiary and thereafter so long as Indemnified Party shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnified Party was an officer or a director of the Corporation or any subsidiary. 4. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by --------------------------------- Indemnified Party of notice of any claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which Indemnified Party has a right to Indemnification hereunder, Indemnified Party will notify the Corporation of the commencement thereof. With respect to any such action, suit or proceeding as to which Indemnified Party notifies the Corporation of the commencement thereof: (a) The Corporation will be entitled to participate therein at its own expense; and (b) Except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party will be entitled to assume the defense thereof, with counsel satisfactory to Indemnified Party. After notice from the Corporation to Indemnified Party of its election to assume the defense thereof, the Corporation will not be liable to Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnified Party shall have the right to employ counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Indemnified Party, unless (i) the employment of counsel by Indemnified Party has been authorized by the Corporation, (ii) Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnified Party in the conduct of the defense of such action, (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation, or (iv) unless the Indemnified 2 Party reasonably and in good faith asserts defenses and theories of defense not asserted by the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Indemnified Party shall have made the conclusion provided for in (ii) or (iv) above. (c) The Corporation shall not be liable to indemnify Indemnified Party under this Agreement for any amounts paid in settlement of any action or claim effected without the Corporation's written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on Indemnified Party without Indemnified Party's written consent. Neither the Corporation or Indemnified Party will unreasonably withhold their consent to any proposed settlement. 5. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified --------------------- Party will reimburse the Corporation for all reasonable expenses paid by the Corporation in defending any civil or criminal action, suit or proceeding against Indemnified Party in the event and only to the extent that Indemnified Party is finally determined that Indemnified Party is not entitled to be indemnified by the Corporation for such expenses under the Corporation's charter or bylaws, this Agreement or under applicable law. 6. ENFORCEMENT. ----------- (a) The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Corporation hereby in order to induce Indemnified Party to serve as an officer and/or director of the Corporation or any subsidiary thereof, and acknowledges that Indemnified Party is relying upon this Agreement as part of the consideration for so acting. (b) In the event Indemnified Party is required to bring any action enforce rights or to collect moneys due under this Agreement and is successful in such action, the Corporation shall reimburse Indemnified Party for all of Indemnified Party's reasonable attorneys' and other fees and expenses in bringing and pursuing such action. 7. SEVERABILITY. Each of the provisions of this Agreement is a separate ------------ and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. 8. GOVERNMENT LAW; BINDING EFFECT; AMENDMENT AND TERMINATION. --------------------------------------------------------- (a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Arizona. (b) This Agreement shall be binding upon Indemnified Party and upon the Corporation, its successors and assigns, and shall inure to the benefit of 3 Indemnified Party, his heirs, personal representatives and assigns and to the benefit of the Corporation, its successors and assigns. (c) No amendment, modification, termination or change of this Agreement shall be effective unless it is signed by both parties hereto. 9. ADDITIONAL RIGHTS. This Agreement is in addition to, and not in lieu ----------------- of, any other right to indemnification under the Corporation's corporate charter, bylaws, insurance contracts or otherwise at law or in equity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written. MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. By: /s/ Bradley E. Larson ----------------------------------------------- Bradley E. Larson, President and Chief Executive Officer Indemnified Party: /s/ Kenneth D. Nelson -------------------------------------------------- Kenneth D. Nelson 4 EX-10.73 24 EMPLOYMENT AGREEMENT WITH MR. TERRIL EXHIBIT 10.73 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is entered into as of the 1st day of October 1997, by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"), and Alan A. Terril (the "Employee"). The Employer hereby employs the Employee on a full-time basis, and the Employee hereby accepts such full-time employment on the terms and conditions hereinafter set forth. 1. EMPLOYMENT. Employee is employed as the Senior Vice President - Nevada ---------- Area Manager for the Employer. Employee shall perform all duties as outlined herein and as may be assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the Employer. The duties of the Employee shall specifically be: A) Complete responsibility for the operational aspects of the Nevada Area, including profit and loss responsibility. B) To select, hire and maintain qualified project management personnel on all Nevada Area projects and to administer and review annually the performance of each person within direct supervision and adjust compensation in accordance with Company guidelines and subject to the approval of the Chief Operating Officer. C) To oversee the selection, preparation and submission of bid proposals and to determine margins in order to maximize Company profitability. D) To oversee the preparation of project budgets for submission to the Chief Operating Officer for approval, to insure that cost controls are in place and utilized to accurately track project costs, to monitor project schedules and to provide decision-making problem-solving assistance for all project management. To oversee the negotiation, preparation and execution of all subcontracts and purchase agreements within the Nevada Area. E) To maintain and promote relationships with owners with whom the Company contracts. F) To insure that periodic reporting such as project Cash Flows (ECAC's), pay estimates are prepared and submitted correctly and on a timely basis. G) Prepares annual operating budgets and capital expenditure budgets and periodic forecasts as required. H) Resolve complaints and/or claims relating to Nevada Area projects, or to provide assistance in preparing for and presenting the Company's position in claims hearings. I) To provide input and counsel to strategic and business plans for the entire Company. J) To assist in any other projects or duties as may be assigned by the Chief Operating Officer. 2. TERM. Subject to the provisions of termination provided in paragraph ---- 12, the initial term of this Agreement shall commence on October 1, 1997 and terminate on September 30, 2002. This Agreement may be extended by the mutual written agreement of the Employee and the Employer. 3. COMPENSATION. Employee shall receive a base salary of One Hundred ------------ Thousand Dollars ($100,000.00) per year, payable in accordance with the regular payroll practices of Employer, and subject to applicable deductions of withholding taxes and other customary employment taxes. The Chief operating Officer of Employer shall review Employee's salary at a minimum annually and may adjust Employee's salary upward to recognize improvement, achievement or expansion of Employee's responsibilities subject to approval of the Board Compensation Committee. Employee shall participate as a member of senior management in cash incentive plans as currently existing or as amended or adopted in the future by the Compensation Committee of Employer's Board of Directors. Cash bonus plans are subject to annual review and/or change as recommended by the Compensation Committee and approved by the Board of Directors. 4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is elligible to participate ------------------------------- in the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock options shall be subject to the discretion of Meadow Valley Corporation's board of directors. 5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the ----------------- Employee's dependents, a comprehensive major medical, health, and dental insurance program comparable to the programs normally provided by other employers in the same industry and marketplace, and the Employer shall pay the cost of the Employee's portion of the premium. Should, at any time, the Employee opt to maintain a personal major medical and health insurance policy for himself and for his dependents and not participate in the Employer's group plan, then Employer shall reimburse Employee the lesser of the amount Employee pays for said personal policy, as evidenced by adequate documentation, or what Employer would otherwise be paying were Employee participating in the Employer's group plan. Should the Employee opt to maintain his own coverage, neither he nor his dependents shall be precluded from later participating in the Employer's group plan so long as they otherwise qualify for enrollment. At Employer's cost, Employer will maintain a life insurance policy covering Employee, with at least $250,000 of death benefits being payable, in a manner that is free of income tax, to Employee's estate or other beneficiaries designated by Employee. Employer agrees to provide Employee with an automobile for business-related use. In addition to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto. Employer shall pay for, or reimburse Employee for, dues for his membership in industry related associations perceived as beneficial to Employer and as approved by the Chief Executive Officer or the Chief Operating Officer. 2 So long as it is within the guidelines of the respective plan, Employee shall be given the opportunity to participate in Employer's 401(k) and any other plans made available to other members of executive management. Employee shall be entitled to receive all other employee benefits for senior management personnel upon the terms and conditions then in effect. 6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employer requires ------------------------------- the Employee to relocate, the Employer shall pay for all moving costs of reasonable and normal household effects, including up to six months storage of such household effects while Employee obtains a permanent residence in the relocation area. Employee shall obtain a minimum of two moving and storage quotes from reputable movers and Employer shall pay the most competitive rate. Employer shall provide Employee a subsistence allowance of Two Thousand Dollars ($2,000.00) per month for the lesser of nine months from the date of reassignment in a new location or until such time as the relocation of Employee and his/her spouse to the relocation area is complete. In addition, costs for one round-trip airline ticket per week between the Employee's previous location and the relocation area will be reimbursed by Employer to Employee during the same nine-month period, or less if relocation is completed earlier. Such tickets may be used either by Employee or by his/her spouse. 7. HOLIDAYS AND VACATION. --------------------- A) Employee shall be paid for the following seven (7) holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day and all other holidays for Employees of the Company as approved by the Chief Executive Officer or Board of Directors. B) Employee is entitled to four weeks vacation during the first year of employment and for each year thereafter. Unused vacation in any given year shall accrue to following years up to a maximum of eight weeks in any one year. 8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such ---------------------------- reasonable time as is necessary or is deemed reasonably necessary by the Employer to carry out all required duties and will devote full time to the Employer during normal business hours. The Employee shall at all times faithfully, with diligence and to the Employee's best good faith ability, experience and talents, perform all the duties that may be required pursuant to the express terms hereof to the reasonable satisfaction of the Employer, in accordance with customary professional standards. 9. WORKING FACILITIES. The Employee shall be furnished with all ------------------ facilities and services suitable to Employee's position and adequate for the performance of Employee's duties. 10. EXPENSES. The Employee is authorized to incur reasonable expenses -------- for promoting business of the Employer, including expenses for entertainment, travel and similar items. The Employer shall reimburse the Employee for all such expenses on the 3 presentation by the Employee of itemized and adequately documented accounts of such expenditures. 11. DISABILITY. If unable to perform duties under the terms of this ---------- Agreement by reason of illness or incapacity for a period of four weeks, Employee shall, commencing at the end of such four week period, be entitled to receive Employee's compensation hereunder for a period of up to and including a maximum of one year or until he is no longer disabled, whichever occurs first. After one year of disability at full salary, the Employee, or his designated beneficiary, shall be provided with a disability insurance policy, if available, at no cost to Employee. The disability income policy would provide for monthly income benefits at the rate of sixty percent (60%) of the Employee's base salary at the time the disability occurred. The Company will attempt to procure a disability income policy that would provide monthly benefits until the Employee reaches 65 years of age or is no longer disabled whichever occurs first. If such a policy is unavailable, the Company will attempt to provide the best policy available. If no policy is available, no other disability income benefits will be provided. 12. TERMINATION. This Employment Agreement may be terminated under the ----------- following circumstances. A) WITHOUT CAUSE. Employer may terminate this Agreement at any time ------------- upon thirty (30) days written notice to Employee, but Employer shall be obligated to pay to Employee compensation in a lump sum for the balance of the term of this Agreement within 30 days of termination, unless Employee agrees to other payment terms. B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may ----------------------------------------------- terminate this Agreement at any time upon thirty (30) days written notice to Employer and Employer shall be obligated, in that event, to pay Employee compensation up to the date of the termination only. All accrued but unpaid compensation and Employee benefits shall be paid in cash within 30 days of termination, unless Employee agrees to other payment terms. C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may -------------------------------------------- terminate this Agreement for reasonable cause upon the unanimous vote of the Board of Directors and by thirty (30) days written notice to the Employee and Employer shall be obligated, in that event, to pay Employee compensation up to the date of termination only. For purposes hereof, "cause" shall be defined as meaning (i) such conduct by the Employee which constitutes material breach of this Agreement which is not cured within ninety (90) days of written notice to the Employee of said alleged breach or (ii) a material failure to competently perform Employee's duties as stated in paragraph 1 in accordance with applicable professional standards as stated in paragraph 1 and 8 hereof provided that Employer has previously given Employee written notice and a reasonable opportunity to remedy such failure and such failure has a materially adverse effect on the business or financial condition of Employer or (iii) material breach of Employee's fiduciary duty and such breach has a material adverse effect on the business or financial condition of Employer or (iv) egregiously improper or 4 illegal conduct of the Employee which, based upon a unanimous good faith determination of the Board of Directors of the Employer, has a material adverse affect on Employer. D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may -------------------------------------------- terminate this Agreement for cause. In such event, Employer shall be obligated to pay Employee compensation in lump sum for the balance of the term of this Agreement within 30 days of termination or as Employee shall agree, plus damages suffered and expenses incurred by reason thereof. For this purpose "cause" shall mean (i) a material breach of this Agreement by Employer or (ii) failure of Employer to pay any amount owed Employee hereunder at the time and in the amount due or (iii) failure of Employer to follow applicable law, especially with respect to SEC filing and compliance over the objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously improper conduct with respect to dealing with Employee or in a manner which brings discredit to Employee. 13. CONFIDENTIALLY. Employee agrees not to disclose any confidential, -------------- propriety competitively sensitive information to persons who are not employees, directors, lenders, bonding agents, insurance companies or advisors of the Employer, except as required by law, without prior consent of the Employer, provided however, any disclosure involving this paragraph shall not result in a breach of this Agreement unless the disclosure has a materially adverse effect on the Employer. 14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall --------------- provide Employee with an Officer Indemnification Agreement in the form attached hereto. 15. NOTICES. All notices, demands, and communications given under this ------- Agreement ("Notice") shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, in the United States mail, postage prepaid, addressed as follows: If to Employer: Meadow Valley Corporation P.O. Box 60726 Phoenix, AZ 85082-0726 If to Employee: Alan A. Terril P.O. Box 364 Overton, NV 89040 5 or at such other address as a party may from time to time designate by Notice hereunder. Notice shall be effective upon delivery in person, or if mailed, at midnight on the third business day after the date of mailing. 16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise ----------------------- transfer this Agreement or any of its rights or obligations hereunder without the prior written consent to such assignment or transfer by the other party hereto; and all the provisions of this Agreement shall be binding upon the respective employees, successors, heirs and assigns of the parties; provided, however, the benefits payable to Employee hereunder in the event of disability or death or incapacity are payable to Employee's spouse or personal representative. 17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement ----------------------------------------------------- and the representations, warranties, covenants and other agreements (however characterized or described) by both parties and contained herein or made pursuant to the provisions hereof shall survive the execution and delivery of this Agreement. 18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and ------------------- all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of the Agreement into full force and effect. 19. SEVERABILITY. If any provision of this Agreement shall be held, ------------ declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason by any court of competent jurisdiction, governmental authority or otherwise, such holding, declaration or pronouncement shall not affect adversely any other provision of this Agreement, which shall otherwise remain in full force and effect and be enforced in accordance with its terms, and the effect of such holding, declaration or pronouncement shall be limited to the territory of jurisdiction in which made. 20. WAIVER. All the rights and remedies of either party under this ------ Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence. 21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in ------------------ accordance with, and governed by, the laws of the state of Arizona. Except as otherwise expressly stated herein, time is of the essence in performing under this Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings relating to the subject matter of this Agreement as it relates to the parties' duties and obligations from and after 6 April 1, 1997, and this Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The headings of this Agreement are for convenience in reference only and shall not limit or otherwise affect the meaning thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term ----------------------------------------------------- of this Agreement, if (i) Employer is involved in a merger, consolidation or other business combination in which Employer is not the surviving and controlling entity; or (ii) all or substantially all the assets of Employer or its principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the Overton, Nevada area in a manner not mutually acceptable to Employee and Employer, then Employee shall have the following rights: A) To terminate this Agreement with 30 days prior notice, in which event Employer shall pay Employee as if there were a termination without cause by the Employer; and B) All options granted shall, to the extent not specifically prohibited by the stock option plan then in effect, vest immediately and be exercisable within one year of the occurring of one of the events set forth in (i), (ii) or (iii) above. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Meadow Valley Corporation /s/ Alan A. Terril By /s/ Bradley E. Larson - ----------------------------- --------------------------------- Employee President/CEO 7 MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT ------------------------------------------ THIS AGREEMENT ("Agreement") is entered into and effective this 1 day of October, 1997, by and between Meadow Valley Corporation and Meadow Valley Contractors, Inc., Nevada corporations ("Corporation"), and Alan A. Terril ("Indemnified Party"). WHEREAS, the Board of Directors has determined that it is in the best interest of the Corporation and its shareholders to agree to indemnify Indemnified Party (who is a Director and/or Officer of the Corporation) from and against certain liabilities for actions taken by him during the performance of his tasks for the Corporation. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INDEMNIFICATION. The Corporation hereby agrees to indemnify and hold --------------- harmless Indemnified Party to the maximum extent possible under all applicable laws against any and all claims, demands, debts, duties, liabilities, judgments, fines and amounts paid in settlement and expenses (including attorneys' fees and expenses) actually and reasonably incurred by Indemnified Party in connection with the investigation, defense, negotiation and settlement of any such claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation) to which Indemnified Party is or becomes a party, or is threatened to be made a party, by reason of the fact that Indemnified Party is an officer or a director of the Corporation or any of its subsidiaries. 2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Agreement ------------------------ shall be made by the Corporation: (a) For the amount of such losses for which the Indemnified Party is indemnified pursuant to any insurance purchased and maintained by the Corporation; or (b) In respect to remuneration paid to Indemnified Party if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (c) On account of any suit in which judgment is rendered against Indemnified Party for an accounting of profits made (i) for an improper personal profit without full and fair disclosure to the Corporation of all material conflicts of interest and not approved thereof by a majority of the disinterested members of the Board of Directors of the Corporation; or (ii) from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local law; or (d) On account of Indemnified Party's conduct which is finally determined to have been knowingly fraudulent, deliberately dishonest or willfully in violation of applicable law for which the corporation suffered actual financial damages; or (e) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. 3. CONTINUATION OF INDEMNITY. All agreements and obligations of the ------------------------- Corporation contained herein shall continue during the period Indemnified Party is an officer or director of the Corporation or a subsidiary and thereafter so long as Indemnified Party shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnified Party was an officer or a director of the Corporation or any subsidiary . 4. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by --------------------------------- Indemnified Party of notice of any claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which Indemnified Party has a right to Indemnification hereunder, Indemnified Party will notify the Corporation of the commencement thereof. With respect to any such action, suit or proceeding as to which Indemnified Party notifies the Corporation of the commencement thereof. (a) The Corporation will be entitled to participate therein at its own expense; and (b) Except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party will be entitled to assume the defense thereof, with counsel satisfactory to Indemnified Party. After notice from the Corporation to Indemnified Party of its election to assume the defense thereof, the Corporation will not be liable to Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnified Party shall have the right to employ counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Indemnified Party, unless (i) the employment of counsel by Indemnified Party has been authorized by the Corporation, (ii) Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnified Party in the conduct of the defense of such action, (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation, or (iv) unless the Indemnified 2 Party reasonably and in good faith asserts defenses and theories of defense not asserted by the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Indemnified Party shall have made the conclusion provided for in (ii) or (iv) above. (c) The Corporation shall not be liable to indemnify Indemnified Party under this Agreement for any amounts paid in settlement of any action or claim effected without the Corporation's written consent. The Corporation shall not settle any action in any manner which would impose any penalty or limitation on Indemnified Party without Indemnified Party's written consent. Neither the Corporation or Indemnified Party will unreasonably withhold their consent to any proposed settlement. 5. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified --------------------- Party will reimburse the Corporation for all reasonable expenses paid by the Corporation in defending any civil or criminal action, suit or proceeding against Indemnified Party in the event and only to the extent that Indemnified Party is finally determined that Indemnified Party is not entitled to be indemnified by the Corporation for such expenses under the Corporation's charter or bylaws, this Agreement or under applicable law. 6. ENFORCEMENT. ----------- (a) The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Corporation hereby in order to induce Indemnified Party to serve as an officer and/or director of the Corporation or any subsidiary thereof, and acknowledges that Indemnified Party is relying upon this Agreement as part of the consideration for so acting. (b) In the event Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Agreement and is successful in such action, the Corporation shall reimburse Indemnified Party for all of Indemnified Party's reasonable attorneys' and other fees and expenses in bringing and pursuing such action. 7. SEVERABILITY. Each of the provisions of this Agreement is a separate and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. 8. GOVERNMENT LAW; BINDING EFFECT; AMENDMENT AND TERMINATION. --------------------------------------------------------- (a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Arizona. (b) This Agreement shall be binding upon Indemnified Party and upon the Corporation, its successors and assigns, and shall inure to the benefit of 3 Indemnified Party, his heirs, personal representatives and assigns and to the benefit of the Corporation, its successors and assigns. (c) No amendment, modification, termination or change of this Agreement shall be effective unless it is signed by both parties hereto. 9. ADDITIONAL RIGHTS. This Agreement is in addition to, and not in lieu ----------------- of, any other right to indemnification under the Corporation's corporate charter, bylaws, insurance contracts or otherwise at law or in equity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written. MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. By: /s/ Bradley E. Larson ----------------------------------------------- Bradley E. Larson, President and Chief Executive Officer Indemnified Party: /s/ Alan A. Terril -------------------------------------------------- Alan A. Terril 4 EX-10.74 25 EMPLOYMENT AGREEMENT WITH MR. LEWIS Exhibit 10.74 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is entered into as of the 1 day of October 1997, by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"), and Paul R. Lewis (the "Employee"). The Employer hereby employs the Employee on a full-time basis, and the Employee hereby accepts such full-time employment on the terms condition hereinafter set forth. 1. EMPLOYMENT. Employee is employed as the Chief Operating Officer for ---------- the Employer. Employee shall perform all duties as outlined herein and as may be assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the Employer. The duties of the Employee shall specifically be: A) Oversee all operating entities of the Employer. Reporting to Ron Lewis will be each Area Manager for the Nevada, Arizona, AKR and Utah Areas, and the Presidents of Prestressed Products Incorporated and Ready Mix, Inc., and the Manager for the Rock & Sand Operations. B) Assist operating units in decision-making relative to work bidding, margins bid, and preparation and submission of estimates. C) Assist operating units to maximize profitability by active participation in project planning, problem-solving, partnering, and claims/litigation preparation. D) Assist and oversee operating budgets, capital expenditure budgets and approve project specific budgets for use in the Company's Budget Bonus Incentive Program. E) Oversee and delegate as necessary administration of the Company's equipment and other resources. The COO is responsible for decision-making regarding the types of equipment acquired in capital purchases and leases. F) Assist in selection and evaluation of merger and/or acquisition opportunities of the Company. G) Assist in formulating and executing strategic plans. H) Any other area specifically assigned by the Chief Executive Officer or the Board of Directors. 2. TERM. Subject to the provisions of termination provided in ---- paragraph 12, the initial term of this Agreement shall commence on October 1, 1997 and terminate on September 30, 2002. This Agreement may be extended by the mutual written agreement of the Employee and the Employer. 3. COMPENSATION. Employee shall receive a base salary of One Hundred Ten ------------ Thousand Dollars ($110,000.00) per year, payable in accordance with the regular payroll practices of Employer, and subject to applicable deductions of withholding taxes and other customary employment taxes. The Chief Executive Officer of Employer shall review Employee's salary at a minimum annually and may adjust Employee's salary of 1934 and amendments thereto or similar provisions of any federal, state or local law; or (d) On account of Indemnified Party's conduct which is finally determined to have been knowingly fraudulent, deliberately dishonest or willfully in violation of applicable law for which the corporation suffered actual financial damages; or (e) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. 3. CONTINUATION OF INDEMNITY. All agreements and obligations of the ------------------------- Corporation contained herein shall continue during the period Indemnified Party is an officer or director of the Corporation or a subsidiary and thereafter so long as Indemnified Party shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigate, by reason of the fact that Indemnified party was an officer or a director of the Corporation or any subsidiary. 4. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by --------------------------------- Indemnified Party of notice of any claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which Indemnification Party has a right to Indemnification hereunder, Indemnified Party will notify the Corporation of the commencement thereof. With respect to any such action, suit or proceeding as to which Indemnified Party notifies the Corporation of the commencement thereof: (a) The Corporation will be entitled to participate therein at its own expense; and (b) Except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party will be entitled to assume the defense thereof, with counsel satisfactory to Indemnified Party. After notice from the Corporation to Indemnified Party of its election to assume the defense thereof, the Corporation will not be liable to Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnified Party shall have the right to employ counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Indemnified Party, unless (i) the employment of counsel by Indemnified Party has been authorized by the Corporation, (ii) Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnified Party in the conduct of the defense of such action, (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation, or (iv) unless the Indemnified 2 Party reasonably and in good faith asserts defenses and theories of defense not asserted by the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Indemnified Party shall have made the conclusion provided for in (ii) or (iv) above. (c) The Corporation shall not be liable to indemnify Indemnified Party under this Agreement for any amounts paid in settlement of any action or claim effected without the Corporation's written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on Indemnified Party without Indemnified Party's written consent. Neither the Corporation or Indemnified Party will unreasonably withhold their consent to any proposed settlement. 5. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified Party --------------------- will reimburse the Corporation for all reasonable expenses paid by the Corporation in defending any civil or criminal action, suit or proceeding against Indemnified Party in the event and only to the extent that Indemnified Party is finally determined that Indemnified Party is not entitled to be indemnified by the Corporation for such expenses under the Corporation's charter or bylaws, this Agreement or under applicable law. 6. ENFORCEMENT. ----------- (a) The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Corporation hereby in order to induce Indemnified Party to serve as an officer and/or director of the Corporation or any subsidiary thereof, and acknowledges that Indemnified Party is relying upon this Agreement as part of the consideration for so acting. (b) In the event Indemnified Party is requiring to bring any action to enforce rights on to collect moneys due under this Agreement and is successful in such action, the Corporation shall reimburse Indemnified Party for all of Indemnified Party's reasonable attorneys' and other fees and expenses in bringing and pursuing such action. 7. SEVERABILITY. Each of the provisions of this Agreement in a separate ------------ and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. 8. GOVERNING LAW: BINDING EFFECT: AMENDMENT AND TERMINATION. -------------------------------------------------------- (a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Arizona. (b) This Agreement shall be binding upon Indemnified Party and upon the Corporation, its successors and assigns, and shall inure to the benefit of 3 Indemnified Party, his heirs, personal representatives and assigns and to the benefit of the Corporation, its successors and assigns. (c) No amendment, modification, termination or change of this Agreement shall be effective unless it is signed by both parties hereto. 9. ADDITIONAL RIGHTS. This Agreement is in addition to, and not in lieu ----------------- of, any other right to indemnification under the Corporation's corporate charter, bylaws, insurance contracts or otherwise at law or in equity. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written. MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. By: /s/ Bradley E. Larson ----------------------------------------------- Bradley E. Larson, President and Chief Executive Officer Indemnified Party: /s/ Paul R. Lewis -------------------------------------------------- Paul R. Lewis 4 Agreement by Employer or (ii) failure of Employer to pay any amount owed Employee hereunder at the time and in the amount due or (iii) failure of Employer to follow applicable law, especially with respect to SEC filings and compliance over the objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously improper conduct with respect to dealing with Employee or in a manner which brings discredit to Employee. 13. CONFIDENTIALITY. Employee agrees not to disclose any confidential, --------------- proprietary competitively sensitive information to persons who are not employees, directors, lenders, bonding agents, insurance companies or advisors of the Employer, except as required by law, without prior consent of the Employer, provided however, any disclosure involving this paragraph shall not result in a breach of this Agreement unless the disclosure has a materially adverse effect on the Employer. 14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall --------------- provide Employee with an Officer Indemnification Agreement in the form attached hereto. 15. NOTICES. All notices, demands, and communications given under this ------- Agreement ("Notice") shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, in the United States mail, postage prepaid, addressed as follows: If to Employer: Meadow Valley Corporation P.O. Box 60726 Phoenix, AZ 85082-0726 If to Employee: Paul R. Lewis P.O. Box 57 Moapa, NV 89025 or at such other address as a party may from time to time designate by Notice hereunder. Notice shall be effective upon delivery in person, or if mailed, at midnight on the third business day after the date of mailing. 16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise ----------------------- transfer this Agreement or any of its rights or obligations hereunder without the prior written consent to such assignment or transfer by the other party hereto; and all the provisions of this Agreement shall be binding upon the respective employees, successors, heirs and assigns of the parties; provided, however, the benefits payable to Employee hereunder in the event of disability or death or incapacity are payable to Employee's spouse or personal representative. 5 17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement ----------------------------------------------------- and the representations, warranties, covenants and other agreements (however characterized or described) by both parties and contained herein or made pursuant to the provisions hereof shall survive the execution and delivery of this Agreement. 18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and ------------------- all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of the Agreement into full force and effect. 19. SEVERABILITY. If any provision of this Agreement shall be held, ------------ declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason by any court of competent jurisdiction, governmental authority or otherwise, such holding, declaration or pronouncement shall not affect adversely any other provision of this Agreement, which shall otherwise remain in full force and effect and be enforced in accordance with its terms, and the effect of such holding, declaration or pronouncement shall be limited to the territory of jurisdiction in which made. 20. WAIVER. All the rights and remedies of either party under this ------ Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence. 21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in ------------------ accordance with, and governed by, the laws of the state of Arizona. Except as otherwise expressly stated herein, time is of the essence in performing under this Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings relating to the subject matter of this Agreement as it relates to the parties' duties and obligations from and after April 1, 1997, and this Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The headings of this Agreement are for convenience in reference only and shall not limit or otherwise affect the meaning thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the ----------------------------------------------------- term of this Agreement, if (i) Employer is involved in a merger, consolidation or other business combination in which Employer is not the surviving and controlling entity; or (ii) all or substantially all the assets of Employer or its 6 principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the Moapa, Nevada area in a manner not mutually acceptable to Employee and Employer, then Employee shall have the following rights: A) To terminate this Agreement with 30 days prior notice, in which event Employer shall pay Employee as if there were a termination without cause by the Employer; and B) All options granted shall, to the extent not specifically prohibited by the stock option plan then in effect, vest immediately and be exercisable within one year of the occurring of one of the events set forth in (i), (ii) or (iii) above. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Meadow Valley Corporation /s/ Paul R. Lewis By /s/ Bradley E. Larson - ----------------------------- --------------------------------- Employee President/CEO 7 MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT ------------------------------------------ THIS AGREEMENT ("Agreement") is entered into and effective this __ day of _______, 19__, by and between Meadow Valley Corporation and Meadow Valley Contractors, Inc., Nevada corporations ("Corporation"), and Paul R. Lewis ("Indemnified Party"). WHEREAS, the Board of Directors has determined that it is in the best interest of the Corporation and its shareholders to agree to indemnify Indemnified Party (who is a Director and/or Officer of the Corporation) from and against certain liabilities for actions taken by him during the performance of his tasks for the Corporation. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INDEMNIFICATION. The Corporation hereby agrees to indemnify and hold --------------- harmless Indemnified Party to the maximum extent possible under all applicable laws against any and all claims, demands, debts, duties, liabilities, judgments, fines and amounts paid in settlement and expenses (including attorneys' fees and expenses) actually and reasonably incurred by Indemnified Party in connection with the investigation, defense, negotiation and settlement of any such claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation) to which Indemnified Party is or becomes a party, or is threatened to be made a party, by reason of the fact that Indemnified Party is an officer or a director of the Corporation or any of its subsidiaries. 2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Agreement ------------------------ shall be made by the Corporation: (a) For the amount of such losses for which the Indemnified Party is indemnified pursuant to any insurance purchased and maintained by the Corporation; or (b) In respect to remuneration paid to Indemnified Party if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (c) On account of any suit in which judgment is rendered against Indemnified Party for an accounting of profits made (i) for an improper personal profit without full and fair disclosure to the Corporation of all material conflicts of interest and not approved thereof by a majority of the disinterested members of the Board of Directors of the Corporation; or (ii) from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act upward to recognize improvement, achievement or expansion of Employee's responsibilities subject to approval of the Board Compensation Committee. Employee shall participate as a member of senior management in cash incentive plans as currently existing or as amended or adopted in the future by the Compensation Committee of Employer's Board of Directors. Cash bonus plans are subject to annual review and/or change as recommended by the Compensation Committee and approved by the Board of Directors. 4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible to participate ------------------------------- in the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock options shall be subject to the discretion of Meadow Valley Corporation's board of directors. 5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the ----------------- Employee's dependents, a comprehensive major medical, health, and dental insurance program comparable to the programs normally provided by other employers in the same industry and marketplace, and the Employer shall pay the cost of the Employee's portion of the premium. Should, at any time, the Employee opt to maintain a personal major medical and health insurance policy for himself and for his dependents and not participate in the Employer's group plan, then Employer shall reimburse Employee the lesser of the amount Employee pays for said personal policy, as evidenced by adequate documentation, or what Employer would otherwise be paying were Employee participating in the Employer's group plan. Should the Employee opt to maintain his own coverage, neither he nor his dependents shall be precluded from later participating in the Employer's group plan so long as they otherwise qualify for enrollment. At Employer's cost, Employer will maintain a life insurance policy covering Employee, with at least $250,000 of death benefits being payable, in a manner that is free of income tax, to Employee's estate or other beneficiaries designated by Employee. Employer agrees to provide Employee with an automobile for business-related use. In addition to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto. Employer shall pay for, or reimburse Employee for, dues for his membership in industry related associations perceived as beneficial to Employer and as approved by the Chief Executive Officer. So long as it is within the guidelines of the respective plan, Employee shall be given the opportunity to participate in Employer's 401(k) and any other plans made available to other members of executive management. Employee shall be entitled to receive all other employee benefits for senior management personnel upon the terms and conditions then in effect. 6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employer requires ------------------------------- the Employee to relocate, the Employer shall pay for all moving costs of reasonable and normal household effects, including up to six months storage of such household effects while Employee obtains a permanent residence in the relocation area. 2 Employee shall obtain a minimum of two moving and storage quotes from reputable movers and Employer shall pay the most competitive rate. Employer shall provide Employee a subsistence allowance of Two Thousand Dollars ($2,000.00) per month for the lesser of nine months from the date of reassignment in a new location or until such time as the relocation of Employee and his/her spouse to the relocation area is complete. In addition, costs for one round-trip airline ticket per week between the Employee's previous location and the relocation area will be reimbursed by Employer to Employee during the same nine-month period, or less if relocation is completed earlier. Such tickets may be used either by Employee or by his/her spouse. 7. HOLIDAYS AND VACATION. --------------------- A) Employee shall be paid for the following seven (7) holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day and all other holidays for Employees of the Company as approved by the Chief Executive Officer or Board of Directors. B) Employee is entitled to four weeks vacation during the first year of employment and for each year thereafter. Unused vacation in any given year shall accrue to following years up to a maximum of eight weeks in any one year. 8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such ---------------------------- reasonable time as is necessary or is deemed reasonably necessary by the Employer to carry out all required duties and will devote full time to the Employer during normal business hours. The Employee shall at all times faithfully, with diligence and to the Employee's best good faith ability, experience and talents, perform all the duties that may be required pursuant to the express terms hereof to the reasonable satisfaction of the Employer, in accordance with customary professional standards. 9. WORKING FACILITIES. The Employee shall be furnished with all ------------------ facilities and services suitable to Employee's position and adequate for the performance of Employee's duties. 10. EXPENSES. The Employee is authorized to incur reasonable expenses for -------- promoting business of the Employer, including expenses for entertainment, travel and similar items. The Employer shall reimburse the Employee for all such expenses on the presentation by the Employee of itemized and adequately documented accounts of such expenditures. 11. DISABILITY. If unable to perform duties under the terms of this ---------- Agreement by reason of illness or incapacity for a period of four weeks, Employee shall, commencing at the end of such four week period, be entitled to receive Employee's compensation hereunder for a period of up to and including a maximum of one year or until he is no longer disabled, whichever occurs first. After one year of disability at full salary, the Employee, or his designated beneficiary, shall be provided with a disability insurance policy, if available, at no cost to Employee. The disability income policy would provide 3 for monthly income benefits at the rate of sixty percent (60%) of the Employee's base salary at the time the disability occurred. The Company will attempt to procure a disability income policy that would provide monthly benefits until the Employee reaches 65 years of age or is no longer disabled whichever occurs first. If such a policy is unavailable, the Company will attempt to provide the best policy available. If no policy is available, no other disability income benefits will be provided. 12. TERMINATION. This Employment Agreement may be terminated under the ----------- following circumstances. A) WITHOUT CAUSE. Employer may terminate this Agreement at any time ------------- upon thirty (30) days written notice to Employee, but Employer shall be obligated to pay to Employee compensation in a lump sum for the balance of the term of this Agreement within 30 days of termination, unless Employee agrees to other payment terms. B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may ----------------------------------------------- terminate this Agreement at any time upon thirty (30) days written notice to Employer and Employer shall be obligated, in that event, to pay Employee compensation up to the date of the termination only. All accrued but unpaid compensation and Employee benefits shall be paid in cash within 30 days of termination, unless Employee agrees to other payment terms. C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may -------------------------------------------- terminate this Agreement for reasonable cause upon the unanimous vote of the Board of Directors and by thirty (30) days written notice to the Employee and Employer shall be obligated, in that event, to pay Employee compensation up to the date of termination only. For purposes hereof, "cause" shall be defined as meaning (i) such conduct by the Employee which constitutes material breach of this Agreement which is not cured within ninety (90) days of written notice to the Employee of said alleged breach or (ii) a material failure to competently perform Employee's duties as stated in paragraph 1 in accordance with applicable professional standards as stated in paragraphs 1 and 8 hereof provided that Employer has previously given Employee written notice and a reasonable opportunity to remedy such failure and such failure has a materially adverse effect on the business or financial condition of Employer or (iii) material breach of Employee's fiduciary duty and such breach has a material adverse effect on the business or financial condition of Employer to (iv) egregiously improper or illegal conduct of the Employee which, based upon a unanimous good faith determination of the Board of Directors of the Employer, has a material adverse affect on Employer. D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may terminate -------------------------------------------- this Agreement for cause. In such event, Employer shall be obligated to pay Employee compensation in lump sum for the balance of the term of this Agreement within 30 days of termination or as Employee shall agree, plus damages suffered and expenses incurred by reason thereof. For this purpose "cause" shall mean (i) a material breach of this 4 EX-10.75 26 EMPLOYMENT AGREEMENT WITH MR. LARSON EXHIBIT 10.75 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is entered into as of the 8th day of January 1998, by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"), and Bradley E. Larson (the "Employee"). The Employer hereby employs the Employee on a full-time basis, and the Employee hereby accepts such full-time employment on the terms and conditions hereinafter set forth. 1. EMPLOYMENT. Employee is employed as the President and Chief ---------- Executive Officer for the Employer. Employee shall perform all duties as outlined herein and as may be assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the Employer. The duties of the Employee shall specifically be: A) To serve as a member of the Board of Directors, report directly to the Board, communicate with the board regarding current operational and financial status of Employer and strategic plans. B) To present to the board, for board approval, annual operating plans,capital improvement programs, budgets and annual updates of strategic plans. C) To assist the Chief Operating Officer in organizing operations personnel to maximize productivity and synergy between various area managers. Delegate responsibilities and oversee activities in the ares of finance/accounting, operations, estimating/marketing, safety and human resources. D) To active represent the Employer in industry organizations where the membership is deemed to be beneficial to the Employer; and serve as board member and/or officer in said organizations when elected to do so. E) To seek out, and present to the board, and opportunities for acquisition and/or investment for growth of the Employer, and to negotiate or assist in the negotiations of acquisitions or investment expenditures. F) To represent the Employer in contract negotiations with owners of work subcontractors and suppliers. G) To establish, foster and maintain relationships with important vendors and suppliers of strategic resources. H) Any other area specifically assigned by the Board of Directors. 2. TERM. Subject to the provisions of termination provided in paragraph ---- 12, the initial term of this Agreement shall commence on day and year first written above and terminate on December 31, 1999. This Agreement may be extended by the mutual written agreement of the Employee and the Employer. 3. COMPENSATION. Employee shall receive a base salary of One Hundred ------------ twenty Thousand Dollars ($120,000.00) per year, payable in accordance with the regular payroll practices of Employer, and subject to applicable deductions of withholding taxes and other customary employment taxes. The Board Compensation Committee of Employer shall review Employee's salary at a minimum annually and may adjust Employee's salary upward to recognize improvement, achievement or expansion of Employee's responsibilities. Employee shall participate as a member of senior management in cash incentive plans as currently existing or as amended or adopted in the future by the Compensation Committee of Employer's Board of Directors. Cash bonus plans are subject to annual review and/or change as recommended by the Compensation Committee and approved by the Board of Directors. 4. OPTIONS TO ACQUIRE COMMON STOCK. Employee is eligible to participate ------------------------------- in the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock options shall be subject to the discretion of Meadow Valley Corporation's board of directors. 5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the ----------------- Employee's dependents, a comprehensive major medical, health, and dental insurance program comparable to the programs normally provided by other employers in the same industry and marketplace, and the Employer shall pay the cost of the Employee's portion of the premium. Should, at any time, the Employee opt to maintain a personal major medical and health insurance policy for himself and for his dependents and not participate in the Employer's group plan, then Employer shall reimburse Employee the lesser of the amount Employee pays for said personal policy, as evidenced by adequate documentation, or what Employer would otherwise be paying were Employee participating in the Employer's group plan. Should the Employee opt to maintain his own coverage, neither he nor his dependents shall be precluded from later participating in the Employer's group plan so long as they otherwise qualify for enrollment. At Employer's cost, Employer will maintain a life insurance policy covering Employee, with at least $250,000 of death benefits being payable, in a manner that is free of income tax, to Employee's estate or other beneficiaries designated by Employee. Employer agrees to provide Employee with an automobile for business-related use. In addition to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto. Employer shall pay for, or reimburse Employee for, dues for his membership in industry related associations perceived as beneficial to Employer and as approved by the Employer's Executive Committee. So long as it is within the guidelines of the respective plan, Employee shall be given the opportunity to participate in Employer's 401(k) and any other plans made available to other members of executive management. Employee shall be entitled to receive all other employee benefits for senior management personnel upon the terms and conditions then in effect. 6. MOVING EXPENSES AND SUBSISTENCE. In the event the Employer requires ------------------------------- the Employee to relocate, the Employer shall pay for all moving costs of reasonable and normal household effects, including up to six months storage of such household effects while Employee obtains a permanent residence in the relocation area. 2 Employee shall obtain a minimum of two moving and storage quotes from reputable movers and Employer shall pay the most competitive rate. Employer shall provide Employee a subsistence allowance of Two Thousand Dollars ($2,000.00) per month for the lesser of nine months from the date of reassignment in a new location or until such time as the relocation of Employee and his/her spouse to the relocation area is complete. In addition, costs for one round-trip airline ticket per week between the Employee's previous location and the relocation area will be reimbursed by Employer to Employee during the same nine-month period, or less if relocation is completed earlier. Such tickets may be used either by Employee or by his/her spouse. 7. HOLIDAYS AND VACATION. --------------------- A) Employee shall be paid for the following seven (7) holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day and all other holidays for Employees of the Company as approved by the Chief Executive Officer or Board of Directors. B) Employee is entitled to four weeks vacation during the first year of employment and for each year thereafter. Unused vacation in any given year shall accrue to following years up to a maximum of eight weeks in any one year. 8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such ---------------------------- reasonable time as is necessary or is deemed reasonably necessary by the Employer to carry out all required duties and will devote full time to the Employer during normal business hours. The Employee shall at all times faithfully, with diligence and to the Employee's best good faith ability, experience and talents, perform all the duties that may be required pursuant to the express terms hereof to the reasonable satisfaction of the Employer, in accordance with customary professional standards. 9. WORKING FACILITIES. The Employee shall be furnished with all ------------------ facilities and services suitable to Employee's position and adequate for the performance of Employee's duties. 10. EXPENSES. The Employee is authorized to incur reasonable expenses for -------- promoting business of the Employer, including expenses for entertainment, travel and similar items. The Employer shall reimburse the Employee for all such expenses on the presentation by the Employee of itemized and adequately documented accounts of such expenditures. 11. DISABILITY. If unable to perform duties under the terms of this ---------- Agreement by reason of illness or incapacity for a period of four weeks, Employee shall, commencing at the end of such four week period, be entitled to receive Employee's compensation hereunder for a period of up to and including a maximum of one year or until he is no longer disabled, whichever occurs first. After on year of disability at full salary, the Employee, or his designated beneficiary, shall be provided with a disability insurance policy, if available, at no cost to Employee. The disability income policy would provide 3 for monthly income benefits at the rate of sixty percent (60%) of the Employee's base salary at the time the disability occurred. The Company will attempt to procure a disability income policy that would provide monthly benefits until the Employee reaches 65 years of age or is no longer disabled whichever occurs first. If such a policy is unavailable, the Company will attempt to provide the best policy available. If no policy is available, no other disability income benefits will be provided. 12. TERMINATION. This Employment Agreement may be terminated under the ----------- following circumstances: A) WITHOUT CAUSE. Employer may terminate this Agreement at any time ------------- upon thirty (30) days written notice to Employee, but Employer shall be obligated to pay to Employee compensation in a lump sum for the balance of the term of this Agreement within 30 days of termination, unless Employee agrees to other payment terms. B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may ----------------------------------------------- terminate this Agreement at any time upon thirty (30) days written notice to Employer and Employer shall be obligated, in that event, to pay Employee compensation up to the date of the termination only. All accrued but unpaid compensation and Employee benefits shall be paid in cash within 30 days of termination, unless Employee agrees to other payment terms. C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may -------------------------------------------- terminate this Agreement for reasonable cause upon the unanimous vote of the Board of Directors and by thirty (30) days written notice to the Employee and Employer shall be obligated, in that event, to pay Employee compensation up to the date of termination only. For purposes hereof, "cause" shall be defined as meaning (i) such conduct by the Employee which constitutes material breach of this Agreement which is not cured within ninety (90) days of written notice to the Employee of said alleged breach or (ii) a material failure to competently perform Employee's duties as stated in paragraph 1 in accordance with applicable professional standards as stated in paragraphs 1 and 8 hereof provided that Employer has previously given Employee written notice and a reasonable opportunity to remedy such failure and such failure has a materially adverse effect on the business or financial condition of Employer or (iii) material breach of Employee's fiduciary duty and such breach has a material adverse effect on the business or financial condition of Employer or (iv) egregiously improper or illegal conduct of the Employee which, based upon a unanimous good faith determination of the Board of Directors of the Employer, has a material adverse affect on Employer. D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may -------------------------------------------- terminate this Agreement for cause. In such event, Employer shall be obligated to pay Employee compensation in lump sum for the balance of the term of this Agreement within 30 days of termination or as Employee shall agree, plus damages suffered and expenses incurred by reason thereof. For this purpose "cause" shall mean (i) a material breach of this 4 Agreement by Employer or (ii) failure of Employer to pay any amount owed Employee hereunder at the time and in the amount due or (iii) failure of Employer to follow applicable law, especially with respect to SEC filings and compliance over the objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously improper conduct with respect to dealing with Employee or in a manner which brings discredit to Employee. 13. CONFIDENTIALITY. Employee agrees not to disclose any confidential, --------------- proprietary competitively sensitive information to persons who are not employees, directors, lenders, bonding agents, insurance companies or advisors of the Employer, except as required by law, without prior consent of the Employer; provided however, any disclosure involving this paragraph shall not result in a breach of this Agreement unless the disclosure has a materially adverse effect on the Employer. 14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall --------------- provide Employee with an Officer Indemnification Agreement in the form attached hereto. 15. NOTICES. All notices, demands, and communications given under this ------- Agreement ("Notice") shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, in the United States mail, postage prepaid, addressed as follows: If to Employer: Meadow Valley Corporation P.O. Box 60726 Phoenix, AZ 85082-0726 If to Employee: Bradley E. Larson 671 E. Encinas Ave. Gilbert, AZ 85234 or at such other address as a party may from time to time designate by Notice hereunder. Notice shall be effective upon delivery in person, or if mailed, at midnight on the third business day after the date of mailing. 16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise ----------------------- transfer this Agreement or any of its rights or obligations hereunder without the prior written consent to such assignment or transfer by the other party hereto; and all the provisions of this Agreement shall be binding upon the respective employees, successors, heirs and assigns of the parties; provided, however, the benefits payable to Employee hereunder in the event of disability or death or incapacity are payable to Employee's spouse or personal representative. 5 17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement ----------------------------------------------------- and the representations, warranties, covenants and other agreements (however characterized or described) by both parties and contained herein or made pursuant to the provisions hereof shall survive the execution and delivery of this Agreement. 18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and all ------------------- such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of the Agreement into full force and effect. 19. SEVERABILITY. If any provision of this Agreement shall be held, ------------ declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason by any court of competent jurisdiction, governmental authority or otherwise, such holding, declaration or pronouncement shall not affect adversely any other provision of this Agreement, which shall otherwise remain in full force and effect and be enforced in accordance with its terms, and the effect of such holding, declaration or pronouncement shall be limited to the territory of jurisdiction in which made. 20. WAIVER. All the rights and remedies of either party under this ------ Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence. 21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in ------------------- accordance with, and governed by, the laws of the state of Arizona. Except as otherwise expressly stated herein, time is of the essence in performing under this Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings relating to the subject matter of this Agreement as it relates to the parties' duties and obligations from and after April 1, 1997, and this Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The headings of this Agreement are for convenience in reference only and shall not limit or otherwise affect the meaning thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term ----------------------------------------------------- of this Agreement, if (i) Employer is involved in a merger, consolidation or other business combination in which Employer is not the surviving and controlling entity; or (ii) all or substantially all the assets of Employer or its 6 principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the Phoenix, Arizona area in a manner not mutually acceptable to Employee and Employer, then Employee shall have the following rights: A) To terminate this Agreement with 30 days prior notice, in which event Employer shall pay Employee as if there were a termination without cause by the Employer; and B) All options granted shall, to the extent not specifically prohibited by the stock option plan then in effect, vest immediately and be exercisable within one year of the occurring of one of the events set forth in (i), (ii) or (iii) above. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Meadow Valley Corporation /s/ Bradley E. Larson By [SIGNATURE ILLEGIBLE] - ----------------------------- --------------------------------- Employee Chairman - Compensation Committee 7 EX-10.76 27 EMPLOYMENT AGREEMENT WITH MR. BURNELL EXHIBIT 10.76 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is entered into as of the 21st day of January 1997, by and between Meadow Valley Corporation, a Nevada corporation (the "Employer"), and Gary W. Burnell (the "Employee"). The Employer hereby employs the Employee on a full-time basis, and the Employee hereby accepts such full-time employment on the terms and conditions hereinafter set forth. 1. EMPLOYMENT. Employee is employed as the Chief Financial Officer, ---------- Treasurer and Vice President for the Employer. Employee shall perform all duties as outlined herein and as may be assigned by the Employer and shall devote full time, attention and loyalty to the affairs of the Employer. The duties of the Employee shall specifically be: A) To be responsible for all accounting, cash flow, and financial reporting functions of the Company. B) To prepare annual operating plans, capital improvement programs, budgets and annual updates of five-year strategic plans. C) To manage and supervise the staff and supervise all accounting-related functions. D) To manage affairs with all banking and other financial institutions. E) To represent the Employer to outside investors/stockholders, assist in providing investing information to brokers/dealers and other interested investors. To assist the CEO with presentation of investor information to the investing community. F) To assist in evaluating and analyzing potential acquisition and/or investment opportunities of the Company. To serve as a source of analysis for management and the board. G) To assist in all administrative functions including insurance, bonding, legal, etc. H) To perform or cause to be performed any other reasonable duties specifically assigned by the CEO and consistent with customary professionalism. 2. TERM. Subject to the provisions of termination provided in paragraph ---- 12, the initial term of this Agreement shall commence on April 1, 1997 and terminate on March 31, 2002. This Agreement may be extended by the mutual written agreement of the Employee and the Employer. 3. COMPENSATION. Employee shall receive a base salary of One Hundred ------------ Ten Thousand Dollars ($110,000.00) per year, payable in accordance with the regular payroll practices of Employer, and subject to applicable deductions of withholding taxes and other customary employment taxes. Compensation is to begin effective April 1, 1997, regardless of the date of execution of this Agreement. The Chief Executive Officer of Employee shall review Employee's salary at a minimum annually and may adjust Employee's salary upward to recognize improvement, achievement or expansion of Employee's responsibilities subject to approval of the Board Compensation Committee. Employee shall participate as a member of senior management in cash incentive plans as currently existing or as amended or adopted in the future by the Compensation Committee of Employer's Board of Directors. Cash bonus plans are subject to annual review and/or change as recommended by the Compensation Committee and approved by the Board of Directors. 4. OPTIONS TO ACQUIRE COMMON STOCK. Upon written notice of acceptance of ------------------------------- an offer of full-time employment Employee shall be granted an option to purchase 80,000 shares of the Company's common stock under the terms of the Meadow Valley Corporation 1994 Stock Option Plan. Future grants of stock options shall be subject to the discretion of Meadow Valley Corporation's board of directors. 5. EMPLOYEE BENEFITS. Employer shall provide to Employee, and to the ----------------- Employee's dependents, a comprehensive major medical, health, and dental insurance program comparable to the programs normally provided by other employers in the same industry and marketplace, and the Employer shall pay the cost of the Employee's portion of the premium. Should, at any time, the Employee opt to maintain a personal major medical and health insurance policy for himself and for his dependents and not participate in the Employer's group plan, then Employer shall reimburse Employee the lesser of the amount Employee pays for said personal policy, as evidenced by adequate documentation, or what Employer would otherwise be paying were Employee participating in the Employer's group plan. Should the Employee opt to maintain his own coverage, neither he nor his dependents shall be precluded from later participating in the Employer's group plan so long as they otherwise qualify for enrollment. At Employer's cost, Employer will by April 1, 1997, obtain a life insurance policy covering Employee, with at least $250,000 of death benefits being payable, in a manner that is free of income tax, to Employee's estate or other beneficiaries designated by Employee. Employer agrees to provide Employee with an automobile for business-related use. In addition to the cost of the vehicle itself, Employer shall pay, directly or by reimbursement to Employee, for all maintenance, fuel, repairs, insurance, operating and other costs incidental thereto. Employer shall pay for, or reimburse Employee for, dues for his membership in Financial Executives Institute, the American Institute of CPAs and one state society of CPAs, as well as any other professional associations that are perceived as beneficial to Employer. Additionally, Employer will provide reasonable time for and pay the registration and related expense for the Employee to participate in a sufficient number of hours of continuing education course (currently thirty hours per year average) to maintain his membership in the American Institute of CPAs. So long as it is within the guidelines of the respective plan, Employee shall be given the opportunity to participate in Employer's 401(k) and any other plans made available to other members of executive management. Employee shall be entitled to receive all other employee benefits for senior management personnel upon the terms and conditions then in effect. 6. MOVING EXPENSES AND SUBSISTENCE. Employer shall pay for all moving ------------------------------- costs of reasonable and normal household effects from Tulsa to the Phoenix area, including up to six months storage of such household effects in Tulsa or Phoenix, whichever is more economical and practical, while Employee and his spouse obtain a permanent residence in the Phoenix area. Employee shall obtain a minimum of two moving and storage quotes from reputable movers and Employer shall pay the most competitive rate. Employer shall provide Employee a subsistence allowance of One Thousand Dollars ($1000.00) per month for the lesser of nine months from April 1, 1997 or until such time as the relocation of Employee and his spouse to the Phoenix area is complete. In addition, costs for one round-trip airline ticket per week between Tulsa and Phoenix will be reimbursed by Employer to Employee during the same nine-month period, or less if relocation to the Phoenix area is completed earlier. Such tickets can be used either by Employee or by his spouse. 7. HOLIDAYS AND VACATION. --------------------- A) Employee shall be paid for the following seven (7) holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving, and Christmas Day and all other holidays for Employees of the Company as approved by the Chief Executive Officer or Board of Directors. B) Employee is entitled to four weeks vacation during the first year of employment and for each year thereafter. Unused vacation in any given year shall accrue to following years up to a maximum of eight weeks in any one year. 8. RESPONSIBILITIES OF EMPLOYEE. The Employee shall devote such ---------------------------- reasonable time as is necessary or is deemed reasonably necessary by the Employer to carry out all required duties and will devote full time to the Employer during normal business hours. The Employee shall at all times faithfully, with diligence and to the Employee's best good faith ability, experience and talents, perform all the duties that may be required pursuant to the express terms hereof to the reasonable satisfaction of the Employer, in accordance with customary professional standards. 9. WORKING FACILITIES. The Employee shall be furnished with all ------------------ facilities and services suitable to Employee's position and adequate for the performance of Employee's duties. 10. EXPENSES. The Employee is authorized to incur reasonable expenses for -------- promoting business of the Employer, including expenses for entertainment, travel and similar items. The Employer shall reimburse the Employee for all such expenses on the presentation by the Employee of itemized and adequately documented accounts of such expenditures. 11. DISABILITY. If unable to perform duties under the terms of this ---------- Agreement by reason of illness or incapacity for a period of four weeks, Employee shall, commencing at the end of such four week period, be entitled to receive Employee's compensation hereunder for a period of up to and including a maximum of one year or until he is no longer disabled, whichever occurs first. Thereafter, Employee, or his designated beneficiary, shall be provided a disability insurance policy, at no cost to Employee, that provides for monthly payments at the rate of at least sixty percent (60%) of the Employee's base salary at the time the disability occurred, such payments to continue until Employee reaches 65 years old or is no longer disabled whichever occurs first. 12. TERMINATION. This Employment Agreement may be terminated under the ----------- following circumstances: A) WITHOUT CAUSE. Employer may terminate this Agreement at any time ------------- upon thirty (30) days written notice to Employee, but Employer shall be obligated to pay to Employee compensation in a lump sum for the balance of the term of this Agreement within 30 days of termination, unless Employee agrees to other payment terms. B) VOLUNTARY TERMINATION BY EMPLOYEE WITHOUT CAUSE. Employee may ----------------------------------------------- terminate this Agreement at any time upon thirty (30) days written notice to Employer and Employer shall be obligated, in that event, to pay Employee compensation up to the date of the termination only. All accrued but unpaid compensation and Employee benefits shall be paid in cash within 30 days of termination, unless Employee agrees to other payment terms. C) TERMINATION BY EMPLOYER FOR REASONABLE CAUSE. The Employer may -------------------------------------------- terminate this Agreement for reasonable cause upon the unanimous vote of the Board of Directors and by thirty (30) days written notice to the Employee and Employer shall be obligated, in that event, to pay Employee compensation up to the date of termination only. For purposes hereof, "cause" shall be defined as meaning (i) such conduct by the Employee which constitutes material breach of this Agreement which is not cured within ninety (90) days of written notice to the Employee of said alleged breach or (ii) a material failure to competently perform Employee's duties as stated in paragraph 1 in accordance with applicable professional standards as stated in paragraph 1 and 8 hereof provided that Employer has previously given Employee written notice and a reasonable opportunity to remedy such failure and such failure has a materially adverse effect on the business or financial condition of Employer or (iii) material breach of Employee's fiduciary duty and such breach has a material adverse effect on the business or financial condition of Employer or (iv) egregiously improper or illegal conduct of the Employee which, based upon a unanimous good faith determination of the Board of Directors of the Employer, has a material adverse affect on Employer. D) TERMINATION BY EMPLOYEE FOR REASONABLE CAUSE. Employee may -------------------------------------------- terminate this Agreement for cause. In such event, Employer shall be obligated to pay Employee compensation in lump sum for the balance of the term of this Agreement within 30 days of termination or as Employee shall agree, plus damages suffered and expenses incurred by reason thereof. For this purpose "cause" shall mean (i) a material breach of this Agreement by Employer or (ii) failure of Employer to pay any amount owed Employee hereunder at the time and in the amount due or (iii) failure of Employer to follow applicable law, especially with respect to SEC filings and compliance over the objection of Employee or contrary to the reasonable advice of Employee or (iv) egregiously improper conduct with respect to dealing with Employee or in a manner which brings discredit to Employee. 13. CONFIDENTIALITY. Employee agrees not to disclose any confidential, --------------- proprietary competitively sensitive information to persons who are not employees, directors, lenders, bonding agents, insurance companies or advisors of the Employer, except as required by law, without prior consent of the Employer, provided however, any disclosure involving this paragraph shall not result in a breach of this Agreement unless the disclosure has a materially adverse effect on the Employer. 14. INDEMNIFICATION. Employer and Meadow Valley Contractors, Inc. shall --------------- provide Employee with an Officer Indemnification Agreement in the form attached hereto. 15. NOTICES. All notices, demands, and communications given under this ------- Agreement ("Notice") shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, in the United States mail, postage prepaid, addressed as follows: If to Employer: Meadow Valley Corporation P.O. Box 60726 Phoenix, AZ 85082-0726 If to Employee: Gary W. Burnell 8205 S. Marion Avenue Tulsa, OK 74137 or at such other address as a party may from time to time designate by Notice hereunder. Notice shall be effective upon delivery in person, or if mailed, at midnight on the third business day after the date of mailing. 16. ASSIGNMENT OF AGREEMENT. Neither party may assign or otherwise ----------------------- transfer this Agreement or any of its rights or obligations hereunder without the prior written consent to such assignment or transfer by the other party hereto; and all the provisions of this Agreement shall be binding upon the respective employees, successors, heirs and assigns of the parties; provided, however, the benefits payable to Employee hereunder in the event of disability or death or incapacity are payable to Employee's spouse or personal representative. 17. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement ----------------------------------------------------- and the representations, warranties, covenants and other agreements (however characterized or described) by both parties and contained herein or made pursuant to the provisions hereof shall survive the execution and delivery of this Agreement. 18. FURTHER INSTRUMENTS. The parties shall execute and deliver any and ------------------- all such other instruments in reasonable mutually acceptable form and substance and shall take any and all such other actions as may be reasonably necessary to carry the intent of the Agreement into full force and effect. 19. SEVERABILITY. If any provision of this Agreement shall be held, ------------ declared or pronounced void, voidable, invalid, unenforceable or inoperative for any reason by any court of competent jurisdiction, governmental authority or otherwise, such holding, declaration or pronouncement shall not affect adversely any other provision of this Agreement, which shall otherwise remain in full force and effect and be enforced in accordance with its terms, and the effect of such holding, declaration or pronouncement shall be limited to the territory of jurisdiction in which made. 20. WAIVER. All the rights and remedies of either party under this ------ Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence. 21. GENERAL PROVISIONS. This Agreement shall be construed and enforced in ------------------ accordance with, and governed by, the laws of the state of Arizona. Except as otherwise expressly stated herein, time is of the essence in performing under this Agreement. This Agreement embodies the entire agreement and understanding between the parties and supersedes all prior agreements and understandings relating to the subject matter of this Agreement as it relates to the parties' duties and obligations from and after April 1, 1997, and this Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. The headings of this Agreement are for convenience in reference only and shall not limit or otherwise affect the meaning thereof. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same instrument. 22. SPECIAL RIGHT OF EMPLOYEE UNDER CERTAIN CIRCUMSTANCES. During the term ----------------------------------------------------- of this Agreement, if (i) Employer is involved in a merger, consolidation or other business combination in which Employer is not the surviving and controlling entity; or (ii) all or substantially all the assets of Employer or its principal subsidiary are sold; or (iii) in the event Employee is required to relocate outside the Pheonix metropolitan area in a manner not mutually acceptable to Employee and Employer, then Employee shall have the following rights: A) To terminate this Agreement with 30 days prior notice, in which event Employer shall pay Employee as if there were a termination without cause by the Employer; and B) All options granted shall, to the extent not specifically prohibited by the stock option plan then in effect, vest immediately and be exercisable within one year of the occurring of one of the events set forth in (i), (ii) or (iii) above. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. Meadow Valley Corporation /s/ Gary W. Burnell By /s/ Bradley E. Larson - ----------------------------- --------------------------------- Employee President/CEO MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. OFFICER/DIRECTOR INDEMNIFICATION AGREEMENT ------------------------------------------ THIS AGREEMENT ("Agreement") is entered into and effective this 1st day of April, 1997, by and between Meadow Valley Corporation and Meadow Valley Contractors, Inc., Nevada corporations ("Corporation"), and Gary W. Burnell ("Indemnified Party"). WHEREAS, the Board of Directors has determined that it is in the best interest of the Corporation and its shareholders to agree to indemnify Indemnified Party (who is a Director and/or Officer of the Corporation) from and against certain liabilities for actions taken by him during the performance of his tasks for the Corporation. NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INDEMNIFICATION. The Corporation hereby agrees to indemnify and hold --------------- harmless Indemnified Party to the maximum extent possible under all applicable laws against any and all claims, demands, debts, duties, liabilities, judgments, fines and amounts paid in settlement and expenses (including attorneys' fees and expenses) actually and reasonably incurred by Indemnified Party in connection with the investigation, defense, negotiation and settlement of any such claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of the Corporation) to which Indemnified Party is or becomes a party, or is threatened to be made a party, by reason of the fact that Indemnified Party is an officer or a director of the Corporation or any of its subsidiaries. 2. LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Agreement ------------------------ shall be made by the Corporation: (a) For the amount of such losses for which the Indemnified Party is indemnified pursuant to any insurance purchased and maintained by the Corporation; or (b) In respect to remuneration paid to Indemnified Party if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (c) On account of any suit in which judgement is rendered against Indemnified Party for an accounting of profits made (i) for an improper personal profit without full and fair disclosure to the Corporation of all material conflicts of interest and not approved thereof by a majority of the disinterested members of the Board of Directors of the Corporation; or (ii) from the purchase or sale by Indemnified Party of securities of the Corporation pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local law; or (d) On account of Indemnified Party's conduct which is finally determined to have been knowingly fraudulent, deliberately dishonest or willfully in violation of applicable law for which the corporation suffered actual financial damages; or (e) If a final decision by a court having jurisdiction in the matter shall determine that such indemnification is not lawful. 3. CONTINUATION OF INDEMNITY. All agreements and obligations of the ------------------------- Corporation contained herein shall continue during the period Indemnified Party is an officer or director of the Corporation or a subsidiary and thereafter so long as Indemnified Party shall be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, by reason of the fact that Indemnified Party was an officer or a director of the Corporation or any subsidiary. 4. NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by --------------------------------- Indemnified Party of notice of any claim or any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which Indemnified Party has a right to Indemnification hereunder, Indemnified Party will notify the Corporation of the commencement thereof. With respect to any such action, suit or proceeding as to which Indemnified Party notifies the Corporation of the commencement thereof: (a) The Corporation will be entitled to participate therein at its own expense; and (b) Except as otherwise provided below, to the extent that it may wish, the Corporation jointly with any other indemnifying party will be entitled to assume the defense thereof, with counsel satisfactory to Indemnify Party. After notice from the Corporation to Indemnified Party of its election to assume the defense thereof, the Corporation will not be liable to Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by Indemnified Party in connection with the defense thereof other than reasonable costs of investigation or as otherwise provided below. Indemnified Party shall have the right to employ counsel in such action, suit or proceeding, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of Indemnified Party, unless (i) the employment of counsel by Indemnified Party has been authorized by the Corporation, (ii) Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Corporation and Indemnified Party in the conduct of the defense of such action, (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel shall be at the expense of the Corporation, or (iv) unless the Indemnified Party reasonably and in good faith asserts defenses and theories of defense not asserted by the Corporation. The Corporation shall not be entitled to assume the defense of any action, suit or proceeding brought by or on behalf of the Corporation or as to which Indemnified Party shall have made the conclusion provided for in (ii) or (iv) above. (c) The Corporation shall not be liable to indemnify Indemnified Party under this Agreement for any amounts paid in settlement of any action or claim effected without the Corporation's written consent. The Corporation shall not settle any action or claim in any manner which would impose any penalty or limitation on Indemnified Party without Indemnified Party's written consent. Neither the Corporation or Indemnified Party will unreasonably withhold their consent to any proposed settlement. 5. REPAYMENT OF EXPENSES. Indemnified Party agrees that Indemnified Party --------------------- will reimburse the Corporation for all reasonable expenses paid by the Corporation in defending any civil or criminal action, suit or proceeding against Indemnified Party in the event and only to the extent that Indemnified Party is finally determined that Indemnified Party is not entitled to be indemnified by the Corporation for such expenses under the Corporation's charter or bylaws, this Agreement or under applicable law. 6. ENFORCEMENT. ----------- (a) The Corporation expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on the Corporation hereby in order to induce Indemnified Party to serve as an officer and/or director of the Corporation or any subsidiary thereof, and acknowledges that Indemnified Party is relying upon this Agreement as part of the consideration for so acting. (b) In the event Indemnified Party is required to bring any action to enforce rights or to collect moneys due under this Agreement and is successful in such action, the Corporation shall reimburse Indemnified Party for all of Indemnified Party's reasonable attorneys' and other fees and expenses in bringing and pursuing such action. 7. SEVERABILITY. Each of the provisions of this Agreement is a separate ------------ and distinct agreement and independent of the others, so that if any provision hereof shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of the other provisions hereof. 8. GOVERNING LAW; BINDING EFFECT; AMENDMENT AND TERMINATION. -------------------------------------------------------- (a) This Agreement shall be interpreted and enforced in accordance with the laws of the State of Arizona. (b) This Agreement shall be binding upon Indemnified Party and upon the Corporation, its successors and assigns, and shall inure to the benefit of Indemnified Party, his heirs, personal representatives and assigns and to the benefit of the Corporation, its successors and assigns. (c) No amendment, modification, termination or change of this Agreement shall be effective unless it is signed by both parties hereto. 9. ADDITIONAL RIGHTS. This Agreement is in addition to, and not in lieu ----------------- of, any other right to indemnification under the Corporation's corporate charter, bylaws, insurance contracts or otherwise at law or in equity. IN WITNESS WHEREOF, the parties were have executed this Agreement on and as of the day and year first above written. MEADOW VALLEY CORPORATION AND MEADOW VALLEY CONTRACTORS, INC. By: /s/ Bradley E. Larson ----------------------------------------------- Bradley E. Larson, President and Chief Executive Officer Indemnified Party: /s/ Gary W. Burnell -------------------------------------------------- Gary W. Burnell EX-27 28 FINANCIAL DATA SCHEDULE
5 12-MOS DEC-31-1997 JAN-01-1997 DEC-31-1997 4,572,833 0 31,296,406 35,441 0 36,761,730 11,475,355 1,263,887 49,063,197 29,914,593 7,571,709 0 0 3,601 12,884,783 49,063,197 149,979,395 149,979,395 142,544,451 142,544,451 0 0 624,048 1,930,986 719,371 0 0 0 0 1,211,615 .34 .33
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