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 normali ...