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) August 26, 2010
U.S.
CONCRETE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-34530
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76-0586680
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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2925
Briarpark, Suite 1050, Houston, Texas 77042
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (713) 499-6200
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:
o 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.
On August
26, 2010, U.S. Concrete, Inc. (the “Company”) entered into a Note Purchase
Agreement (the “Note Purchase Agreement”) among the Company, the direct and
indirect domestic subsidiaries of the Company signatory thereto (the
“Guarantors,” and together with the Company, the “Issuer Parties”), the
investors listed on the Schedule of Subscription Parties attached thereto as
Annex I (the “Subscription Parties”) that have properly completed and returned a
subscription certificate and each of the investors set forth on the Schedule of
Put Option Parties attached thereto as Annex II (the “Put Option Parties,” and
together with the Subscription Parties, the “Buyers”). Pursuant to
the Note Purchase Agreement, the Company will sell and the Buyers will purchase
the Subscription Amount (as defined in the Offering Memorandum) of 9.5%
convertible secured notes due 2015 (the “Convertible Notes”) at a price of
$1,000 for each $1,000 of principal amount of the Convertible Notes to be
purchased, subject in each case to the satisfaction or waiver of the conditions
contained therein.
As
disclosed in our Current Report on Form 8-K filed April 29, 2010, the Company
and its affiliated debtors and debtors-in-possession (the “Debtors”) are each
subject to a voluntary case (the “Cases”) under chapter 11 of title 11 of the
United States Code, in the United States Bankruptcy Court (the “Bankruptcy
Court”) for the District of Delaware. The Debtors will be reorganized
pursuant to a joint plan of reorganization, dated as of June 2, 2010 (the
“Plan”).
Each
Buyer’s obligation is subject to, among other things, (1) each of the
representations of the Issuer Parties being true and correct in all material
respects (other than those representations and warranties that are qualified by
“materiality” or “material adverse effect”, which shall be true and correct in
all respects) as of the date of the Note Purchase Agreement and as of the date
of the closing of the offering of the Convertible Notes (the “Subscription
Offer”) (the “Closing Date”) as though made at that time (except for
representations and warranties made as of a specified date, which shall be true
and correct only as of the specified date); (2) each of the Issuer Parties
having performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by the Note Purchase Agreement and
the Transaction Documents (as defined in the Note Purchase Agreement) to which
it is a party to be performed, satisfied or complied with by such Issuer Party
at or prior to the Closing Date; (3) there not having occurred a dismissal or
conversion of any Case to a case under chapter 7 of the Bankruptcy Code or the
appointment of a chapter 11 trustee in any Case; (4) no provision of the Plan
(as filed with the Bankruptcy Court) having been amended, supplemented or
otherwise modified in any respect in a manner materially adverse to the Buyers
without the consent of the Buyers (such consent not to be unreasonably withheld
or delayed); (5) the order by the Bankruptcy Court in the Cases confirming the
Plan (the “Confirmation Order”) having become a final order, in full force and
effect without reversal, modification or stay; the Plan having been consummated
on the terms and conditions set forth in the Note Purchase Agreement, as amended
and in effect as of the date of the Confirmation Order; (6) the Company having
provided evidence to the Buyers, in form and substance reasonably satisfactory
to the Buyers, that substantially concurrently with the issuance of the
Convertible Notes all obligations under the Debtors’ existing debtor-in
possession financing (described in our Current Report on Form 8-K filed May 3,
2010) (the “DIP Facility”) (other than contingent obligations not then due and
payable) have been repaid in full, all commitments under the DIP Facility have
been terminated and all liens and security interests related to the DIP Facility
have been terminated or released; (7) except to the extent disclosed by the
Company in any filing made by the Company with the Securities and Exchange
Commission (the “SEC”) prior to July 20, 2010, in the Plan or in writing to the
Put Option Parties on July 20, 2010, (i) there not having occurred or become
known to the Buyers any events, developments, conditions or circumstances that,
individually or in the aggregate, have had or could reasonably be expected to
have a material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of the Company and its direct and indirect
subsidiaries, taken as a whole (or the reorganized Company and its direct and
indirect subsidiaries, taken as a whole) (a “Material Adverse Effect”) and
(ii) no material assets of the Debtors having been sold or agreed to be
sold outside of the ordinary course of business from and after the date hereof;
(8) (i) the Issuer Parties having entered into the Transaction Documents and the
Company having delivered the executed versions of the Transaction
Documents to the Put Option Parties on the Closing Date and (ii) on the
effective date of the Plan (the “Effective Date”), (A) there not being any event
or condition which constitutes an event of default, or which upon notice, lapse
of time, or both would constitute an event of default, under the Transaction
Documents and (B) the Transaction Documents being in full force and effect; (9)
the payment of the fees and reimbursement of out-of-pocket costs and expenses as
set forth in the Purchaser Letter, the Plan and the letter, dated as of February
22, 2010, between the Company and Paul, Weiss, Rifkind, Wharton & Garrison
LLP (“Paul Weiss”) regarding payment by the Company of fees and expenses to Paul
Weiss as counsel to a group formed by certain holders of the Existing Notes (the
“Expense Agreement”), in accordance with the terms hereof and thereof; provided,
that the Put Option Parties shall cause Paul Weiss to provide the Company with
an estimate of its fees and expenses through the Closing Date at least two (2)
business days prior to the Closing Date; (10) the Effective Date and the Closing
Date occurring on or prior to October 1, 2010; (11) as of the date of the
Offering Supplement to the Disclosure Statement, dated as of August 16, 2010
(including all documents incorporated by reference therein, the “Offering
Memorandum”) and on the Closing Date, the materials to be used in connection
with the Subscription Offer regarding the Company, its subsidiaries and the
Convertible Notes, for distribution to eligible holders of the Company’s 8.375%
senior subordinated notes due 2014 (the “Existing Notes”), when furnished and
taken as a whole, being complete and correct in all material respects and not
containing any untrue statement of a material fact or omitting to state a
material fact necessary to make the statements contained therein, in light of
the circumstances under which such statements are made, not misleading; (12)
each of the Company’s filings with the SEC since January 1, 2010 is, as of its
respective filing date, having been complete and correct in all material
respects and not containing any untrue statement of a material fact or omitting
to state a material fact necessary to make the statements contained therein, in
light of the circumstances under which such statements are made, not misleading;
(13) substantially concurrently with the issuance of the Convertible Notes, the
Debtors and the lenders under the revolving credit facility among the Company,
certain affiliates thereof, JPMorgan Chase Bank, N.A. as administrative agent
and the lenders party thereto and any related documents (the “Revolving
Facility”) (i) having entered into the definitive documentation for the
Revolving Facility and any related documentation and reasonably satisfactory to
the Buyers and (ii) all conditions to borrowing under the Revolving
Facility having been satisfied or waived (provided that if such waiver could
reasonably be expected to be adverse in any material respect to the interests of
the Put Option Parties, the Put Option Parties shall have consented to such
waiver) on or prior to the Effective Date, and (iii) on the Effective Date
(y) there not having been any event or condition which constitutes an event
of default, or which upon notice, lapse of time, or both would become an event
of default, under the Revolving Facility and (z) the Revolving Facility shall be
in full force and effect; (14) all governmental, shareholder or third
party consents, if any, necessary for the consummation of the offering having
been obtained; and (15) certain other customary conditions.
Each
Issuer Party’s obligation is subject to, among other things, (1) the
Confirmation Order having become a final order, in full force and effect without
reversal, modification or stay and the Plan shall have been consummated on the
terms and conditions set forth therein, as amended and in effect as of the date
of the Confirmation Order; (2) the Effective Date and the Closing
Date occurring no later than October 1, 2010; (3) the Put Option Parties having
deposited funds as provided in the Note Purchase Agreement and in the Support
Agreement (as defined in the Note Purchase Agreement) sufficient to satisfy in
full their obligation under the Support Agreement and the transactions
contemplated by the Support Agreement occurring concurrently with the Closing of
the Subscription Offer; (4) the Revolving Facility (as defined in the Note
Purchase Agreement) credit agreement having been executed and delivered by all
requisite parties (other than the Company and the Guarantors) and be binding on
and enforceable against all parties thereto (other than the Company and the
Guarantors), all conditions to funding thereunder shall have been satisfied with
the closing of the Transactions (as defined in the Note Purchase Agreement), all
obligations under the DIP Facility (other than contingent obligations not then
due and payable) will have been repaid in full, all commitments under the DIP
Facility will have been terminated and all liens and security interests related
to the DIP Facility will have been terminated or released; (5) no legal action
or litigation having been taken or instituted, or threatened by a third party,
which seeks to (or does) restrain, prevent or otherwise impose conditions on the
Transactions which individually or in the aggregate could reasonably be expected
to result in a Material Adverse Effect or that would materially and adversely
affect the consummation of the Transactions; (6) the representations and
warranties of each Buyer contained in the Transaction Documents (as defined in
the Note Purchase Agreement) to which such Buyer is a party being true and
correct in all material respects (other than those representations and
warranties that are qualified by “materiality” or “material adverse effect”,
which shall be true and correct in all respects) as of the date when made and as
of the Closing Date as though made at that time (except for representations and
warranties that speak as of a specific date, which shall be true and correct as
of such specified date), and each Buyer having performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by the Note Purchase Agreement to be performed, satisfied or complied with by
such Buyer at or prior to the Closing Date; (7) no action having been taken and
no statute, rule, regulation or order having been enacted, adopted or issued by
any federal, state or foreign governmental or regulatory authority of competent
jurisdiction that would, as of the Closing Date, render impossible the issuance
or sale of the Securities or the consummation of the Transactions; (8) no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities; and (9) certain other customary conditions.
The Note
Purchase Agreement will terminate on the earlier of (1) the mutual written
agreement of the Company and the Buyers who have collectively subscribed to
purchase a majority of the aggregate principal amount of Convertible Notes
offered pursuant to the Subscription Offer (the “Requisite Buyers”), provided
that such Requisite Buyers shall include each of the Put Option Parties; (2)
written notice by the Company to the Buyers after October 1, 2010 (the “Drop
Dead Date”); provided that the Company shall not be entitled to terminate the
Note Purchase Agreement if it is then in material breach of its obligations
under the Note Purchase Agreement; (3) written notice by the Put Option Parties
after the Drop Dead Date; provided that the Put Option Parties shall not be
entitled to terminate the Note Purchase Agreement if the Put Option Parties are
then in material breach of their obligations under the Note Purchase Agreement;
(4) 10 days after the Requisite Buyers have delivered written notice to the
Company that the Company has materially breached the Note Purchase Agreement, if
such breach remains uncured at the conclusion of such 10-day period; provided
that in no event shall this cure period limit the right of the Requisite Buyers
to terminate after the Drop Dead Date; provided further that such Requisite
Buyers shall include each of the Put Option Parties; or (5) 10 days after the
Company has delivered notice to the Buyers that the Buyers have materially
breached the Note Purchase Agreement, if such breach remains uncured at the
conclusion of such 10-day period; provided that in no event shall this cure
period limit the right of the Company to terminate after the Drop Dead
Date.
Item
8.01 Other Events
The
Subscription Offer made to certain eligible holders of the Company’s existing
notes expired at 5:00 p.m. New York City time on August 26,
2010. The Company currently expects to close the Subscription Offer
on August 31, 2010, subject to satisfaction or waiver of all conditions
contained in the Note Purchase Agreement.
The securities to be offered to holders
of the Existing Notes have not been and will not be registered under the
Securities Act of 1933 and may not be offered or sold in the United States
absent an applicable exemption from registration requirements. The disclosure about the Subscription
Offer contained herein does not constitute an offer to sell or a solicitation of
an offer to buy any securities of the Company, and is made only as required
under applicable rules for filing current reports with the
SEC.
Item
9.01 Financial Statements and Exhibits.
(c)
Exhibits
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Exhibit
No.
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Exhibit
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10.1
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Note
Purchase Agreement, dated August 26, 2010 among U.S. Concrete, Inc., the
guarantors set forth on the signature pages thereto, the Subscription
Parties set forth in Annex I thereto and the Put Option Parties set forth
on Annex II thereto.
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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 thereunto
duly authorized.
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U.S.
CONCRETE, INC. |
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Date:
August 27, 2010
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By:
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/s/ Michael
W. Harlan |
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Michael
W. Harlan |
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President
and Chief Executive Officer |
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