Exhibit 10.5
May 29, 2003
Xx. Xxxxxx X. Xxxxxxxxx
C/o U.S. Concrete, Inc.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Re: First Amendment ("First Amendment") to Employment Agreement (the
"Agreement"), dated May 28, 2003, between U.S. Concrete, Inc. (the
"Company") and Xxxxxx X. Xxxxxxxxx.
Dear Gene:
This letter agreement shall be deemed to be the First Amendment to the
Agreement and is being executed in order to memorialize our agreement as
provided herein in the event and at such time all of the following conditions
are satisfied: (i) you voluntarily cease serving in the positions of President
and Chief Executive Officer of the Company, (ii) you are elected Chairman of the
Board of Directors of the Company by the Company's Board of Directors, and (iii)
the 2006 annual meeting of stockholders of the Company has occurred
(collectively, the "Conditions," and the date on which all of the conditions are
satisfied, the "Satisfaction Date"). All capitalized terms used in this First
Amendment and otherwise not defined herein shall have the meanings assigned to
them in the Agreement. The Company and you agree as follows:
1. On the Satisfaction Date, Exhibit "A" to the Agreement shall be amended by
deleting Exhibit "A" in its entirety and replacing it with the following:
" Exhibit "A" to Employment Agreement Between
Company And Xxxxxx X. Xxxxxxxxx
Term: The Term of Executive's employment shall
be for a term commencing on the
Satisfaction Date and ending on the date
of the 2009 Annual Meeting of Stockholders
of the Company.
Xx. Xxxxxx X. Xxxxxxxxx
May 29,2003
Page 2
Position: Executive Chairman of the Board of
Directors.
Location: Houston, Texas or the State of Florida
Geographic Region of Responsibility: During Executive's employment with the
Company, within 75 miles of any plant or
other operating facility in which the
Company is then engaged in business.
Upon termination of Executive's employment
with the Company, within 75 miles of any
plant or other operating facility in which
the Company was engaged in business on the
date immediately prior to Executive's
termination.
Period of Post-Employment Three years from the date of termination
Non-Competition Obligations: if Executive's employment is terminated
for Cause under Section 2.1.a. If
Executive's employment is terminated under
Sections 2.1.b., 2.1.c., 2.2.a. or 2.3 and
Executive receives any severance benefits
or Change in Control benefits, then the
Period of Post-Employment Non-Competition
Obligations shall be the period of time
for which Executive receives any such
severance benefits or Change in Control
benefits. If Executive's employment is
terminated under Section 2.2.b., the then
the Period of Post-Employment
Non-Competition Obligations shall be two
years from the date of termination. If
Executive is terminated under any other
section of this Agreement, there shall be
no Period of Post-Employment
Non-Competition Obligations.
Monthly Base Salary: An amount equal to one-half of Executive's
Monthly Base Salary during the month
immediately preceding the Satisfaction
Date, or such higher rate as may be
determined by the Company from time to
time.
Annual Paid Vacation: five weeks"
Xx. Xxxxxx X. Xxxxxxxxx
May 29, 2003
Page 3
2. On the Satisfaction Date, the Agreement shall be amended to add a new
section 1.10 as follows:
"1.10 Time. Executive shall devote not less than 20 hours per week to
perform Executive's duties and responsibilities to the Company; provided,
however, that Executive shall be required to devote a only prorated amount
of time per week to perform such duties and responsibilities during any
week in which (i) a legal holiday occurs, (ii) Executive takes an amount of
Annual Paid Vacation, or (iii) any other time off is then permitted by
Company policy or agreed to in writing by the Company."
3. On the Satisfaction Date, Section 2.1.b. of the Agreement shall be amended
by deleting subclause (i) in its entirety and replacing it with the
following:
" (i) the Monthly Base Salary in effect on the date of Involuntary
Termination, which the Company shall continue to pay in semi-monthly
installments as if Executive's employment (which ends on the date of
Involuntary Termination) had continued for the remainder of the Term;"
4. On the Satisfaction Date, Section 2.2.a. of the Agreement shall be amended
by deleting subclause (I) in its entirety and replacing it with the
following:
" (I) the Monthly Base Salary in effect on the date of termination for
Good Cause, which the Company shall continue to pay in semi-monthly
installments as if Executive's employment (which ends of the date of
termination for Good Cause) had continued for the remainder of the Term;"
5. On the Satisfaction Date, Section 2.1.b. of the Agreement shall be amended
by deleting subclause (v) in its entirety.
6. On the Satisfaction Date, Section 2.2.a. of the Agreement shall be amended
by deleting subclause (V) in its entirety.
7. On the Satisfaction Date, Section 2.1.c. of the Agreement shall be amended
by deleting it in its entirety and replacing it with the following:
" c. Death/Disability. Upon Executive's (i) death, or (ii) becoming
incapacitated or disabled so as to entitle Executive to benefits under the
Company's long-term disability
Xx. Xxxxxx X. Xxxxxxxxx
May 29, 2003
Page 4
plan, or (iii) becoming permanently and totally unable to perform
Executive's duties hereunder as a result of any physical or mental
impairment supported by a written opinion by a physician selected by the
Company who is reasonably acceptable to Executive. Notwithstanding anything
to the contrary contained in Section 2.1, upon Executive's death or
disability this Agreement and Executive's employment shall terminate. Upon
termination of employment due to such death or disability, Executive or
Executive's heirs shall be entitled to receive all severance benefits
described in Section 2.1.b. as if Executive's employment ended due to an
Involuntary Termination by the Company as of the date of death, first
payment of benefits under the Company's long-term disability plan or
permanent and total incapacity, as applicable, except that with respect to
severance benefits relating to stock options upon termination of employment
due to death or disability (a) all stock options previously granted by the
Company to Executive that are vested on the date of termination shall,
notwithstanding any contrary provision of any applicable plan or agreement
covering any such stock option awards, remain outstanding and continue to
be exercisable in accordance with their terms and (b) all stock options
previously granted by the Company to Executive that are not vested on the
date of termination shall terminate immediately."
8. Except as specifically set forth in this First Amendment, all other terms
and conditions of the Agreement as set forth therein are hereby ratified
and affirmed and shall remain in full force and effect.
If the foregoing meets with your approval, please so indicate by returning
to us one fully executed copy of this letter.
Sincerely,
U.S. CONCRETE, INC.
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Its:Executive Vice President, COO and CFO
-------------------------------------
Accepted and agreed to as of May
29, 2003.
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
