UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): November 5,
2009
U.S.
CONCRETE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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000-26025
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76-0586680
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer Identification No.)
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of
incorporation)
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2925
Briarpark, Suite 1050
Houston, Texas 77042
(Address
of principal executive offices, including ZIP code)
(713)
499-6200
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement.
Item
3.03 Material Modification to Rights of Security Holders.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
November 5, 2009, the Board of Directors of U.S. Concrete, Inc. (the “Company”)
declared a dividend of one right (“Right”) for each outstanding share of the
Company’s Common Stock, par value $.001 per share (“Common Stock”), to
stockholders of record at the close of business on November 16, 2009. Each Right
entitles the registered holder to purchase from the Company a unit consisting of
one one-hundredth of a share (“Fractional Share”) of Series A Junior
Participating Preferred Stock, par value $.001 per share (the “Preferred
Stock”), at a purchase price of $10.00 per Fractional Share, subject to
adjustment (the “Purchase Price”). The description and terms of the Rights are
set forth in a Rights Agreement dated as of November 5, 2009 as it may from time
to time be supplemented or amended (the “Rights Agreement”) between the Company
and American Stock Transfer & Trust Company, LLC, as Rights
Agent.
The Board of Directors of the Company
adopted the Rights Agreement in an effort to protect stockholder value by
attempting to protect against a possible limitation on the Company’s ability to
use its net operating loss carryforwards (the “NOLs”) to reduce potential future
federal income tax obligations. The Company has experienced and continues to
experience substantial operating losses, and under the Internal Revenue Code of
1986, as amended (the “Code”), and rules promulgated by the Internal Revenue
Service, the Company may “carry forward” these losses in certain circumstances
to offset any current and future earnings and thus reduce the Company’s federal
income tax liability, subject to certain requirements and restrictions. To the
extent that the NOLs do not otherwise become limited, the Company believes that
it will be able to carry forward a significant amount of NOLs, and therefore
these NOLs could be a substantial asset to the Company. However, if the Company
experiences an “Ownership Change,” as defined in Section 382 of the Code, its
ability to use the NOLs will be substantially limited, and the timing of the
usage of the NOLs could be substantially delayed, which could therefore
significantly impair the value of that asset.
Initially,
the Rights will be evidenced by the certificates for Common Stock registered in
the names of the holders of the Common Stock or, for Common Stock held in
book-entry accounts through the direct registration service of the Company’s
transfer agent, by such book-entry accounts (together with a direct registration
transaction advice with respect to such shares), and no separate certificates
for the Rights (“Rights Certificates”) will be distributed. The Rights will
separate from the Common Stock and a “Distribution Date” will occur, with
certain exceptions, upon the earlier of (i) ten days following a public
announcement that a person or group of affiliated or associated persons (an
“Acquiring Person”) has acquired, or obtained the right to acquire, beneficial
ownership of 4.9% or more of the outstanding shares of Common Stock (the date of
the announcement being the “Stock Acquisition Date”), or (ii) ten business days
following the commencement of a tender offer or exchange offer that would result
in a person’s becoming an Acquiring Person. In certain circumstances, the
Distribution Date may be deferred by the Board of Directors. Certain inadvertent
acquisitions will not result in a person’s becoming an Acquiring Person if the
person promptly divests itself of sufficient Common Stock and the Board of
Directors determines that an exemption is in the best interests of the Company.
If at the time of the adoption of the Rights Agreement, any person or group of
affiliated or associated persons is the beneficial owner of 4.9% or more of the
outstanding shares of Common Stock, such person shall not become an Acquiring
Person unless and until certain increases in such person’s beneficial ownership
occur or are deemed to occur. The definition of Acquiring Person
excludes any Exempt Person (as defined below) and any person who would become an
Acquiring Person solely as a result of an Exempt Transaction (as defined
below).
Until the
Distribution Date, (a) the Rights will be evidenced by the Common Stock
certificates or, for Common Stock held in book-entry accounts through the direct
registration service of the Company’s transfer agent, by such book-entry
accounts (together with a direct registration transaction advice with respect to
such shares), and the Rights will be transferred with and only with such Common
Stock certificates, (b) new Common Stock certificates issued after November 16,
2009 will contain a notation incorporating the Rights Agreement by reference and
(c) the surrender for transfer of any certificate for Common Stock will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
Under the Rights Agreement, an “Exempt
Person” shall be a person whose beneficial ownership, together with all
affiliates and associates of that person, of 4.9% or more of the Company
Securities (as defined below) then outstanding (a) will not, as determined by
the Board of Directors in its sole discretion, jeopardize or endanger the
availability to the Company of its tax benefits or (b) is otherwise determined
by the Board of Directors in its sole discretion to be in the best interests of
the Company; provided, however, that such a person will cease to be an Exempt
Person if the Board of Directors subsequently makes a contrary determination
with respect to the effect of such Person’s beneficial ownership, together with
its affiliates and associates, on the availability to the Company of its tax
benefits. “Company Securities” means shares of common stock,
preferred stock, warrants, rights or options to purchase stock of the Company
and any other interests that would be treated as “stock” of the Company pursuant
to applicable Treasury regulations.
Under the Rights Agreement, an “Exempt
Transaction” shall be any transaction that the Board of Directors determines, in
its sole discretion, prior to the consummation of such transaction, is exempt
because (a) that transaction would not frustrate the ability of the Company to
protect the availability (in both timing and amount) of its tax benefits or (b)
that transaction is otherwise determined by the Board of Directors in its sole
discretion to be in the best interests of the Company.
The
Rights are not exercisable until the Distribution Date and will expire at the
close of business on October 31, 2019, unless earlier redeemed or exchanged by
the Company as described below.
As soon
as practicable after the Distribution Date, Rights Certificates will be mailed
to holders of record of Common Stock as of the close of business on the
Distribution Date and, from and after the Distribution Date, the separate Rights
Certificates alone will represent the Rights. All shares of Common Stock issued
prior to the Distribution Date will be issued with Rights. Shares of Common
Stock issued after the Distribution Date in connection with certain employee
benefit plans or upon conversion of certain securities will be issued with
Rights. Except as otherwise determined by the Board of Directors, no other
shares of Common Stock issued after the Distribution Date will be issued with
Rights. In the event the Company elects to distribute any Rights by crediting
book-entry accounts, the provisions described in this summary that reference
Rights Certificates will be interpreted to reflect that the Rights are credits
to the book-entry accounts, that separate Rights Certificates are not issued
with respect to some or all of the Rights, and that any legend required on a
Rights Certificate may be placed on the direct registration transaction advice
with respect to certain Rights.
In the
event (a “Flip-In Event”) that a person becomes an Acquiring Person (except
pursuant to a tender or exchange offer for all outstanding shares of Common
Stock at a price and on terms that a majority of the independent directors of
the Company determines to be fair to and otherwise in the best interests of the
Company and its stockholders (a “Permitted Offer”)), each holder of a Right will
thereafter have the right to receive, upon exercise of such Right, a number of
shares of Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) having a Current Market Price (as defined in the
Rights Agreement) equal to two times the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence of any Triggering Event,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by or transferred to an Acquiring Person (or
by certain related parties) will be null and void in the circumstances set forth
in the Rights Agreement. However, Rights are not exercisable following the
occurrence of any Flip-In Event until such time as the Rights are no longer
redeemable by the Company as set forth below.
In the
event (a “Flip-Over Event”) that, at any time from and after the time an
Acquiring Person becomes such, (i) the Company is acquired in a merger or other
business combination transaction (other than certain mergers that follow a
Permitted Offer), or (ii) 50% or more of the Company’s assets, cash flow or
earning power is sold or transferred, each holder of a Right (except Rights that
are voided as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as “Triggering
Events.”
The
number of outstanding Rights associated with a share of Common Stock, or the
number of Fractional Shares of Preferred Stock issuable upon exercise of a Right
and the Purchase Price, are subject to adjustment in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock occurring prior to the Distribution Date. The Purchase Price payable, and
the number of Fractional Shares of Preferred Stock or other securities or
property issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution in the event of certain transactions affecting
the Preferred Stock.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No
fractional shares of Preferred Stock that are not integral multiples of a
Fractional Share are required to be issued upon exercise of Rights and, in lieu
thereof, an adjustment in cash may be made based on the market price of the
Preferred Stock on the last trading date prior to the date of exercise. Pursuant
to the Rights Agreement, the Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise of Rights, a number of
Rights be exercised so that only whole shares of Preferred Stock will be
issued.
At any
time until ten days following the first date of public announcement of the
occurrence of a Flip-In Event, the Company may redeem the Rights in whole, but
not in part, at a price of $.001 per Right, payable, at the option of the
Company, in cash, shares of Common Stock or such other consideration as the
Board of Directors may determine. Immediately upon the effectiveness of the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the $.001 redemption price.
At any
time after the occurrence of a Flip-In Event and prior to a person’s becoming
the beneficial owner of 50% or more of the shares of Common Stock then
outstanding or the occurrence of a Flip-Over Event, the Company may exchange the
Rights (other than Rights owned by an Acquiring Person or an affiliate or an
associate of an Acquiring Person, which will have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, and/or other equity
securities deemed to have the same value as one share of Common Stock, per
Right, subject to adjustment.
Until a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or
to receive dividends. While the distribution of the Rights should not be taxable
to stockholders or to the Company, stockholders may, depending on the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for the
common stock of the acquiring company as set forth above or are exchanged as
provided in the preceding paragraph.
Other
than the redemption price, any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company as long as the Rights are
redeemable. Thereafter, the provisions of the Rights Agreement other than the
redemption price may be amended by the Board of Directors in order to cure any
ambiguity, defect or inconsistency, to make changes that do not materially
adversely affect the interests of holders of Rights (excluding the interests of
any Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to lengthen the time
period governing redemption shall be made at such time as the Rights are not
redeemable.
A copy of
the Rights Agreement has been filed with the Securities and Exchange Commission
as Exhibit 4.1 to this Current Report on Form 8-K. This summary description of
the Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated herein by reference. In
connection with the Rights Agreement, the Company filed a certificate of
designations with respect to the Series A Junior Participating Preferred Stock
setting forth the terms of the Preferred Stock issuable upon exercise of the
Rights. Such certificate of designations has been filed with the Securities and
Exchange Commission as Exhibit 3.1 to this Current Report on Form 8-K and is
incorporated herein by this reference.
The
Rights will have certain anti-takeover effects. The Rights will cause
substantial dilution to any person or group that attempts to acquire the Company
without the approval of the Company’s Board of Directors. As a result, the
overall effect of the Rights may be to render more difficult or discourage any
attempt to acquire the Company even if such acquisition may be favorable to the
interests of the Company’s stockholders. Because the Company’s Board of
Directors can redeem the Rights, amend the Rights Agreement or approve an Exempt
Person, Exempt Transaction or Permitted Offer, the Rights should not interfere
with a merger or other business combination approved by the Board of Directors
of the Company.
The
information set forth in the Company’s press release dated November 6, 2009,
included herewith as Exhibit 99.1, is incorporated by reference to this Current
Report on Form 8-K.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On
November 4, 2009, the Board of Directors approved the termination of the
Company’s Deferred Compensation Plan, effective November 4, 2009, with the
payout of the participants’ accounts on November 5, 2010.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d) Exhibits
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3.1
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Certificate
of Designations of Series A Junior Participating Preferred Stock of U.S.
Concrete, Inc.
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4.1.
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Rights
Agreement dated as of November 5, 2009 between U.S. Concrete, Inc. and
American Stock Transfer & Trust Company, LLC, as Rights Agent, which
includes as Exhibit A the form of Certificate of Designations of Series A
Junior Participating Preferred Stock setting forth the terms of the
Preferred Stock, as Exhibit B the form of Rights Certificate and as
Exhibit C the Summary of Rights to Purchase Preferred Stock Stock.
Pursuant to the Rights Agreement, Rights Certificates will not be mailed
until after the Distribution Date (as defined in the Rights
Agreement).
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99.1
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Press
release issued by the Company dated November 6,
2009.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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U.S.
CONCRETE, INC.
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Date: November
6, 2009
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By:
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/s/ Robert D. Hardy
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Name:
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Robert
D. Hardy
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Title:
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Executive
Vice President
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and
Chief Financial Officer
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Exhibit No.
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Description
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3.1
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Certificate
of Designations of Series A Junior Participating Preferred Stock of U.S.
Concrete, Inc.
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4.1.
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Rights
Agreement dated as of November 5, 2009 between U.S. Concrete, Inc. and
American Stock Transfer & Trust Company, LLC, as Rights Agent, which
includes as Exhibit A the form of Certificate of Designations of Series A
Junior Participating Preferred Stock setting forth the terms of the
Preferred Stock, as Exhibit B the form of Rights Certificate and as
Exhibit C the Summary of Rights to Purchase Preferred Stock Stock.
Pursuant to the Rights Agreement, Rights Certificates will not be mailed
until after the Distribution Date (as defined in the Rights
Agreement).
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99.1
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Press
release issued by the Company dated November 6,
2009.
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