Exhibit 10.5
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 Gary Konnie
(“Participant”).
PRELIMINARY STATEMENT
Under the 1999 Incentive Plan of
U.S. Concrete, Inc. (the “Incentive Plan”), the Company
has granted to Participant the Stock Awards (as defined in the
Incentive Plan) set forth in the attached Exhibit A (each such
Stock Award, a “Participant Award”). Exhibit A sets
forth for each Participant Award the number of shares of the common
stock, par value $0.001 per share, of the Company (“Common
Stock”) subject to that Participant Award (the “Awarded
Shares”) and, if those shares constitute Restricted Stock (as
defined in the Incentive Plan), the vesting schedule applicable to
those shares.
As used in this Agreement,
“Award Agreement” means any award agreement to which
the Company is a party that relates to any of the Awarded
Shares.
The premises on which the Company
granted Participant the Participant Awards were based on an
administrative oversight in that a portion of each Participant
Award exceeded the maximum number of shares of Common Stock
available for award to a single participant in any year under the
Incentive Plan in the form of a Stock Award.
The Incentive Plan permits the
Committee (as defined in the Incentive Plan) to amend or modify
each Participant Award in any manner that is consented to in
writing by Participant.
At the 2005 annual meeting of
stockholders of the Company (the “2005 Annual
Meeting”), the Company will request that its stockholders
approve a proposed amendment to the Incentive Plan, to be effective
as of April 1, 2001, to, among other things, increase the number of
shares of Common Stock that may be granted in the form of Stock
Awards to any individual in any year from 10,000 shares to 100,000
shares (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 Participant Awards 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,
Participant 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) each Participant Award will be amended by this
Agreement, effective as of the adjournment of the 2005 Annual
Meeting, to reduce the total number of Awarded Shares subject
thereto to 10,000 and (b) pursuant to that amendment, Participant
will return to the Company, and the Company will cancel, the number
of Rescission Shares (as defined below) subject to that Participant
Award.
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, Participant: (a) will
not, directly or indirectly, (i) offer for sale, sell, pledge or
otherwise dispose of (or enter 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 Rescission
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 Rescission 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 Rescission
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 Rescission 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. To the extent any of the Rescission Shares are
represented by one or more stock certificates, Participant will, as
soon as practicable following his execution and delivery of this
Agreement, deliver those stock certificates, duly endorsed for
transfer to the Company under Section 2 hereof, or accompanied by a
duly executed stock power, to the Company. If the Ratification
occurs, the Company will promptly return those stock certificates
to Participant. To the extent that the issuance of any of the
Rescission Shares is evidenced by book entry pursuant to records
maintained by or at the direction of American Stock Transfer &
Trust Company, Participant hereby irrevocably authorizes the
Company to direct American Stock Transfer & Trust Company to
make or cause to be effected appropriate book entries to return
those Rescission Shares to the Company under Section 2
hereof.
2. Amendment of Participant
Awards; Return of Rescission Shares . If the Company does not
receive the requisite s
