Exhibit 10.11
AGREEMENT
This Agreement dated as of April 5,
2005 (this “Agreement”) is made and entered into by and
between U.S. Concrete, Inc., a Delaware corporation (the
“Company”), and Cesar Monroy
(“Employee”).
PRELIMINARY STATEMENT
The Company has granted to Employee
7,000 shares of common stock, par value $0.001 per share, of the
Company (the “Awarded Shares”) pursuant to the award
agreement attached hereto as Exhibit A (the “Award
Agreement”), which was authorized and approved by the
Compensation Committee of the Board of Directors of the Company
(the “Committee”). The Awarded Shares were not awarded
pursuant to any plan that has heretofore been approved by the
stockholders of the Company.
The premises on which the Company
granted Employee the Awarded Shares were based on an administrative
oversight in that the number of Awarded Shares, taken together with
similar awards of shares to other employees of the Company (all
such awards of shares and the Awarded Shares, collectively, the
“Shares Subject to Ratification”) exceeded the maximum
number of shares of Common Stock available for such awards pursuant
to the de minimis exception available under Nasdaq
Marketplace Rule 4350(i)(A), as in effect at the times such awards
were made.
At the 2005 annual meeting of
stockholders of the Company (the “2005 Annual
Meeting”), the Company will request that its stockholders
approve a proposal to ratify the awards and issuances of all the
Shares Subject to Ratification (the “Proposal”). The
Committee has indicated that, following the 2005 Annual Meeting, if
the stockholders approve the Proposal at the 2005 Annual Meeting,
the Committee currently intends to ratify the grant of the Shares
Subject to Ratification, including the Awarded Shares, and any and
all associated award agreements (such Committee action, the
“Ratification”).
The parties hereto have concluded
that it is in their respective best interests that: (1) pending the
stockholder vote on the Proposal at the 2005 Annual Meeting,
Employee will enter into the lockup arrangements and other
restrictions this Agreement provides; and (2) if the stockholders
of the Company do not approve the Proposal at the 2005 Annual
Meeting, (a) the Award Agreement will be rescinded by this
Agreement, effective as of the adjournment of the 2005 Annual
Meeting, and (b) Employee will return to the Company, and the
Company will cancel, all the Awarded Shares.
NOW, THEREFORE, in consideration of
the premises and agreements this Agreement contains and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby,
the undersigned hereby agree as follows:
1. Lockup Agreement and Other
Restrictions and Limitations . Until the occurrence of both the
requisite stockholder vote approving the Proposal at the 2005
Annual Meeting (in accordance with the Company’s Bylaws, as
currently in effect) and the Ratification, Employee: (a) will not,
directly or indirectly, (i) offer for sale, sell, pledge or
otherwise dispose of (or enter
1
into any transaction or device that is designed
to, or could be expected to, result in the disposition by any
person at any time in the future of) any of the Awarded Shares or
(ii) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of the Awarded Shares, whether any
such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or other securities, in cash or
otherwise; (b) will not be entitled to vote any of the Awarded
Shares on any matter that may be submitted to a vote of the
Company’s stockholders; and (c) will not be entitled to
receive any dividends on, or any distribution with respect to, any
of the Awarded Shares. In furtherance of the foregoing, the Company
and its transfer agent, American Stock Transfer & Trust
Company, are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach
of this Section 1. Employee hereby irrevocably authorizes the
Company to direct American Stock Transfer & Trust Company to
make or cause to be effected appropriate book entries to return the
Awarded Shares to the Company under Section 2 hereof.
2. Rescission of Awards; Return
of the Awarded Shares . If the Company does not receive the
requisite stockholder vote to approve the Proposal at the 2005
Annual Meeting (in accordance with the Company’s Bylaws, as
currently in effect), then, effective as of the adjournment of the
2005 Annual Meeting: (a) the awards of
