First Amendment to
Exhibit
10.28
First
Amendment to
U.S.
Concrete Executive Severance Agreement
U.S.
Concrete (the “Company”), having entered into an Executive Severance Agreement
with Xxxxxx X. Xxxxxxxx (“Executive”) effective as of July 31, 2007 (the
“Agreement”), does hereby amend the Agreement effective December 31, 2008 as set
forth below:
1. Section
1.2.a.(i) of the Agreement is hereby amended in its entirety to read as
follows:
“(i) a
material diminution in Executive’s then current Monthly Base
Salary,”
2. Section
1.4 of the Agreement is hereby amended by adding the following sentence to the
end of that Section:
“Notwithstanding
the foregoing, an offset may apply to compensation or benefits under this
Agreement only at the time when the compensation or benefits otherwise would
have been paid under this Agreement.”
3. Section
3.2(b) of the Agreement is hereby amended in its entirety to read as
follows:
“pay the
Executive a cash amount within 10 days after the consummation of the Change in
Control, equal to the excess of (i) the value of consideration per share of the
Company’s capital stock received by a shareholder of the Company in connection
with the Change in Control over (ii) the exercise price per share under the
Terminated Option, which excess shall be multiplied by the number of unexercised
shares subject to the Terminated Option.”
4. Section
4.10 of the Agreement is hereby amended in its entirety to read as
follows:
“All
amounts payable under Sections 1.1.b and 1.2 of this Agreement shall be paid
only after Executive’s timely execution, without revocation, of a release in a
form satisfactory to the Company. The Company shall provide the
aforementioned release to Executive within 10 days following the date of
Executive’s termination of employment. Executive’s execution of the
release shall be considered timely only if the release is executed and returned
to the Company by the deadline specified
by the
Company, which deadline shall not be earlier than the 21st day following the
date the release is provided to Executive nor later than the 55th day following
the date of termination of Executive’s employment. If Executive has
timely returned the executed release and the revocation period has expired, the
amounts payable under Sections 1.1.b and 1.2 of this Agreement shall be paid on
the 65th day following the date
of Executive’s termination of employment.
The
Company intends that this Agreement be interpreted in a manner compliant with
the requirements of Code Section 409A. If Executive is a “specified employee,”
as such term is defined in Code Section 409A and determined as described below
in this Section 4.10, any payments payable as a result of Executive’s
termination (other than death) shall be payable on the earliest of (i) the date
that is six months after Executive’s termination, (ii) the date of Executive’s
death, or (iii) the date that otherwise complies with the requirements of Code
Section 409A. This Section 4.10 shall be applied by accumulating all
payments that otherwise would have been paid within six months of Executive’s
termination and paying such accumulated amounts at the earliest date which
complies with the requirements of Code Section 409A. Executive shall
be a “specified employee” for the twelve-month period beginning on April 1 of a
year if Executive is a “key employee” as defined in Section 416(i) of the Code
(without regard to Section 416(i)(5)) as of December 31 of the preceding year or
using such dates as designated by the Company in accordance with Code Section
409A and in a manner that is consistent with respect to all of the Company’s
nonqualified deferred compensation plans. For purposes of determining
the identity of specified employees, the Company may establish procedures as it
deems appropriate in accordance with Code Section 409A.”
IN WITNESS WHEREOF, the
Company has signed this amendment on this 31st day of
December, 2008.
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U.S.
Concrete
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Agreed
by Executive:
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| By: |
/s/
Xxxxxxx X. Xxxxxx
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By: |
/s/
Xxxxxx X. Xxxxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxx X. Xxxxxxxx
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Title: President
& CEO
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