Preview of our top selling Vice President (VP) Corporate Development Employment Agreement
US Concrete - Director of Corporate Development Employment Agreement - Michael D. Mitschele
Exhibit 10.1
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Amendment") is effective as of June 1, 2005, by and between U.S. Concrete, Inc., a Delaware corporation (the "Company"), and Michael D. Mitschele ("Executive").
PRELIMINARY STATEMENT
WHEREAS, the Company and Executive have entered into that certain Employment Agreement, dated as of May 28, 2003 (the "Agreement"); and
WHEREAS, the Company and Executive desire to amend the Agreement in accordance with Section 5.7 of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Defined Terms . All capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings assigned to them in the Agreement.
2. Amendment to Section 1.1 . Section 1.1 of the Agreement is hereby amended by deleting Section 1.1 in its entirety and replacing it with the following:
" 1.1 Term and Position . The Company agrees to employ Executive, and Executive agrees to be employed by the Company for the term described on Exhibit "A" (the "Term"). Executive will serve in the position described on Exhibit "A" (the "Position"), and in that capacity, effective June 1, 2005, shall devote his time and efforts to (i)(A) work directly with the Chief Executive Officer of the Company (the "CEO"), as requested by the CEO, to identify and pursue Acquisition Candidates (as defined herein), and (B) assist Company officers, as requested by them, in coordinating various aspects of due diligence on Acquisition Candidates, and (ii) assist, as requested by the CEO, in the identification and development of new internal growth projects of the Company, as agreed to among the Executive, CEO and Chief Operating Officer of the Company."
3. Amendment to Section 1.6 . Section 1.6 of the Agreement is hereby amended by deleting Section 1.6 in its entirety and replacing it with the following:
" 1.6 Annual Bonuses . Effective June 1, 2005, if Executive is not paid aggregate Commissions (as defined herein) in a bonus year (either because no Transactions closed or because the Commissions on closed Transactions were completely offset by his annual base salary), then Executive will be entitled to participate, at grade level 19, in an annual cash incentive compensation plan generally applicable to the employees of the Company and its affiliated entities, on the same basis as other similarly-situated employees. Effective June 1, 2005, if Executive is paid a Commission in a bonus year, then he will be entitled to participate, at grade level 19, in the annual cash incentive compensation plan generally applicable to the employees of the Company and its affiliated entities, on the same basis as other similarly-situated employees, but he will only be eligible to receive a bonus under the plan to the extent his bonus (determined in accordance with the plan) exceeds his Co mmissions for that bonus year. In no event will employee's aggregate annual base salary, Commissions and bonus exceed $375,000.00 during the period from June 1, 2005 through May 31, 2006."
4. Addition of Section 1.8 . A new Section 1.8 is added to the Agreement, such Section 1.8 to read as follows:
" 1.8 Commissions . Effective June 1, 2005, the Company shall pay to Executive a Commission in accordance with the formula provided below within 30 days after the closing of each transaction (a "Transaction") that involves the purchase by the Company or an affiliate of the Company of all of the capital stock or substantially all of the assets of, or a merger, consolidation or similar business combination involving, an Acquisition Candidate, provided that (i) Executive assists the Company in any manner it may reasonably request within the parameters of this Agreement (a) towards the execution of a non-binding letter of intent with that Acquisition Candidate and (b), if the Company determines to further pursue the Acquisition Candidate after signing a letter of intent, towards the execution of a definitive acquisition agreement relating to the Transaction, and (ii) such Transaction closes during, or within one year after the end of, the Term of this Agreement. Fo r purposes of this Section 1.8 , an " Acquisition Candidate " shall mean a business that is a candidate for acquisition by the Company which Executive and the CEO have jointly identified and which the CEO has agreed to pursue, and which the Company requests that Executive assist it in any manner it may reasonably request within the parameters of this Agreement towards the execution of a non-binding letter of intent with that Acquisition Candidate and, if the Company determines to further pursue the Acquisition Candidate after signing a letter of intent, towards the execution of a definitive acquisition agreement relating to the Transaction. Each commission (a "Commission") which shall be paid to Executive after the closing of a Transaction involving an Acquisition Candidate pursuant to the first sentence of this Section 1.8 shall equal the sum of (i) two percent of that Acquisition Candidate's normalized earnings before interest, taxes, depreciation and amortization ( "EBITDA") for the 12-month period ended on the most recent date for which financial statements are provided in the purchase agreement for that Acquisition Candidate (the " Acquisition Candidate's EBITDA ") up to $5,000,000, plus (ii) one percent of that Acquisition Candidate's EBITDA, if any, in excess of $5,000,000. Each Commission earned by Executive pursuant to this Section 1.8 will be payable by the Company up to 100% in shares of common stock of the Company, $.001 par value ("Common Stock"), in the Company's sole discretion, and the remainder, if any, in cash. The number of shares of Common Stock delivered to Executive in connection with each Commission will be determined by using the average closing price of Common Stock as reported on the Nasdaq National Market for 10 consecutive trading days, with the last such trading day being the trading day that is three trading days prior to the closing date of the Transaction that generated that Commission. Notwithst anding anything to the contrary contained in this Section 1.8 , the first $206,800 in aggregate Commissions will be offset by (and deemed earned in) Executive's annual base salary during the period from June 1, 2005 through May 31, 2006, and not paid to Executive, and any aggregate Commissions in excess of $206,800 will be paid to Executive. Any business that, as of June 1, 2005, is in active discussions with the Company, or has entered into a non-binding letter of intent with the Company, regarding a possible acquisition by the Company shall not be an Acquisition Candidate."
5. Addition of Section 1.9 . A new Section 1.9 is added to the Agreement, such Section 1.9 to read as follows:
" 1.9 Company Car . Executive shall be entitled to the use of a Company car during the period from June 1, 2005 through May 31, 2006. The Company shall be responsible for all lease payments for the Company car and for all routine and scheduled maintenance on the Company car during this period. All expenses for fuel Executive incurs in connection with the use of the Company car for Company business purposes shall be reimbursed in accordance with Section 1.4 , and all expenses for fuel Executive incurs in connection with the use of the Company car for personal purposes shall be Executive's responsibility."
6. Addition of Section 1.10 . A new Section 1.10 is added to the Agreement, such Section 1.10 to read as follows:
" 1.10 Additional Items . Executive shall be entitled to the use of his Company office in Elmwood Park, New Jersey and his assistant to transition to his new duties as of June 1, 2005 for a reasonable period of time thereafter. Executive shall be entitled to have the use of his Company laptop computer an...
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