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) September 28, 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
(Address
of principal executive offices)
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77042
(Zip
Code)
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Registrant’s
telephone number, including area code: (713) 499-6200
(Former
name or former address, if changed since last report): Not Applicable
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.
On September 30, 2010, U.S. Concrete,
Inc. (the “Company”) entered into a Joinder Agreement with Kurtz Gravel
Company, Superior Holdings, Inc. (f/k/a Superior Redi-Mix, Inc.), BWB, Inc. of
Michigan, Builders’ Redi-Mix, LLC, and USC Michigan, Inc. (collectively, the
“Joint Venture Partners”), Superior Materials Holdings, LLC (“Superior”), Edw.
C. Levy Co. (“Levy”), VCNA Prairie, Inc. (the “New Joint Venture Partner”) and
Votorantim Cement North America, Inc. (“VCNA”), to the Redemption Agreement (the
“Redemption Agreement”), dated August 5, 2010, among the Company, the Joint
Venture Partners, Superior and Levy. Pursuant to the Joinder Agreement,
the New Joint Venture Partner and VCNA became parties to the Redemption
Agreement with the New Joint Venture Partner becoming an indemnifying party and
VCNA becoming an indemnified party under the Redemption Agreement as described
in more detail in Item 2.01 below.
The foregoing summary is qualified in
its entirety by reference to the Joinder Agreement, which is filed herewith as
Exhibit 10.2 and is incorporated herein by reference.
Item
1.02 Termination of a Material Definitive Agreement.
The information set forth in Item 2.01
below is incorporated by reference into this Item 1.02.
Item
2.01 Completion of Acquisition or Disposition of Assets.
On
September 30, 2010, the Company completed the disposition of its interest in
Superior pursuant to the Redemption Agreement.
As
previously reported in the Company’s Current Report on Form 8-K filed on March
30, 2007, several subsidiaries of the Company entered into a contribution
agreement with Levy to form a ready-mixed concrete joint venture that operated
in Michigan. Pursuant to this joint venture arrangement, Levy and the
Joint Venture Partners were members of Superior and each held “Shares” of
Superior, as defined in the Operating Agreement, dated April 1, 2007 (the
“Operating Agreement”), among Levy, the Joint Venture Partners and
Superior. Pursuant to the Redemption Agreement, Superior redeemed all of
the Joint Venture Partners’ Shares in Superior (the “Redemption”). In
connection with the Redemption of the Shares in Superior, the Company made
certain cash contributions to the joint venture in exchange for a release of
certain liabilities and obligations and indemnification related to contingent
underfunded pension liabilities as described below. Upon completion of the
Redemption, the Company no longer holds any interest in Superior pursuant to the
Operating Agreement. A copy of the press release issued by the Company
describing the Redemption is attached as Exhibit 99.1 and is incorporated herein
by reference.
Pursuant to the terms of the Redemption
Agreement, as consideration for the Redemption, Superior, Levy and the New Joint
Venture Partner (the “Indemnifying Parties”) agreed to indemnify the Company,
the Joint Venture Partners and VCNA from and against all
“Adverse Consequences” (as defined in the Redemption Agreement) arising out of,
or relating to or resulting from any of the following: (i) facts or
circumstances that occur on or after the closing of the Redemption (the
“Closing”) and which relate to the post-closing ownership or operation of
Superior; (ii) the Agreement Approving Asset Sale with Central States, Southeast
Areas Pension Fund, dated March 30, 2007; (iii) the Company’s obligation to
provide retiree medical coverage to current and former Clawson employees of
Superior and its affiliates pursuant to the collective bargaining agreement
between Superior and the Teamer’s Local Union No. 614; and (iv) Superior’s
issuance of 500 Shares to the New Joint Venture Partner.
At the
Closing on September 30, 2010, the Company and the Joint Venture Partners
collectively paid $640,000 in cash and issued a promissory note (the “Promissory
Note”) in the aggregate amount of $1,500,000 to Superior as partial
consideration for the indemnification and other consideration provided by the
Indemnifying Parties pursuant to the Redemption Agreement. The Promissory
Note does not bear interest and requires the Company and the Joint Venture
Partners to pay Superior $750,000 on or before January 1, 2011 and $750,000 on
or before January 1, 2012. The Promissory Note may be prepaid, in whole or in
part, without premium, penalty or additional interest. The foregoing
summary is qualified in its entirety by reference to the Promissory Note, which
is filed herewith as Exhibit 10.3 and is incorporated herein by
reference.
The
Company and the Joint Venture Partners also agreed, for a period of five (5)
years after the Closing, not to compete with Superior by, directly or
indirectly, engaging in, owning an interest in, making an investment in, or
becoming a creditor of, or providing any credit to, any business which
manufactures and delivers ready-mix concrete or produces and sells masonry block
and related concrete products in the State of Michigan, subject to certain
exceptions.
In
connection with the closing of the Redemption, the Company and the other parties
to the Redemption Agreement terminated, amended or assigned certain other
agreements, including but not limited to the termination of the Guaranty made as
of April 1, 2007 by the Company in favor of Superior and Levy in connection with
the Contribution Agreement, dated as of March 26, 2007, by and among Levy, the
Joint Venture Partners and Superior. On September 30, 2010, Comerica Bank
also released the Company from any and all obligations with respect to the
Comfort Letter In Support of Superior Materials, LLC and BWB, LLC dated August
6, 2008 between Comerica Bank and the Company.
The
information set forth in Item 1.01 above is incorporated by reference into this
Item 2.01.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 2.01
above is incorporated by reference into this Item 2.03.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Chief Financial Officer
On
October 1, 2010, the Company appointed James C. Lewis, 55, as its Senior Vice
President and Chief Financial Officer. Mr. Lewis has over 20 years of senior
financial management experience. From 2006 through 2010, Mr. Lewis served
as Vice President and Treasurer, and from 2003 through 2006, he served as
Assistant Treasurer, of McDermott International, Inc., a global engineering and
construction company with $6 billion in revenue. From 1995 through 2003, Mr.
Lewis held various positions of increasing responsibility in the finance
departments of Enron Corporation, including Vice President beginning in 1999.
Prior to 1999, Mr. Lewis held various finance positions with Tejas Power Corp.
and First City Bancorporation of Texas.
A copy of
the press release announcing the appointment of Mr. Lewis is attached hereto as
Exhibit 99.2 and incorporated herein by reference.
Executive Severance
Agreements
The
Company has entered or will enter into new executive severance agreements with
certain executive officers as of October 1, 2010, including Michael Harlan, Curt
Lindeman and James Lewis. Each of these new executive severance agreements
provides for severance payments and other benefits following termination of the
applicable officer’s employment under various scenarios, as described
below. Each such agreement also contains an ongoing confidentiality
covenant, requiring the applicable officer not to disclose confidential
information of the Company at any time, as well as covenants not to compete with
the Company or solicit employees and customers of the Company at any time during
employment and for either one year after the officer’s employment is terminated
or, if a qualifying termination occurs following a “change of control” (as
defined in the executive severance agreements), two and a half years
thereafter.
In the
case of a termination of the applicable officer’s employment prior to a “change
in control” by the Company without “cause,” by the officer for “good cause” or
as a result of death or “disability” (each, as defined in the executive
severance agreements), the officer would generally be entitled to the following
severance benefits:
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a
lump-sum payment in cash equal to the officer’s monthly base salary in
effect on the date of termination multiplied by
24;
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a
lump-sum payment in cash equal to the amount of the officer’s
(1) target bonus for the bonus year in which the termination occurs,
prorated based on the number of days in the bonus year that have elapsed
prior to the termination, and (2) the value of the officer’s accrued
salary through the date of such termination, plus the officer’s unused
vacation days earned for the year prior to the year in which the
termination occurs and a pro rata portion of the vacation days earned for
the year in which the termination
occurs;
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payment
by the Company of all applicable medical continuation premiums for
continuation coverage under the Consolidated Omnibus Budget Reconciliation
Act, or COBRA, for the benefit of the officer (and his covered dependents
as of the date of his termination, if any) under his then-current plan
election for 18 months after termination;
and
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a
pro rata portion of all outstanding and previously unvested stock options,
restricted stock awards, restricted stock units and similar awards granted
to the officer by the Company that would otherwise have vested during the
six-month period following the date of termination if such termination had
not occurred will become vested and exercisable (as applicable), and
vested stock options will remain exercisable until the earlier of (1) the
expiration of the twelve-month period following termination, and (2) the
expiration date of the original term of the applicable stock
option.
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In the
event that there is a “change in control” and within one year thereafter the
officer’s employment is terminated by the Company without “cause” or by the
officer for “good cause,” the officer would generally be entitled to the
following severance benefits:.
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a
lump sum payment in cash equal to (a) the sum of (I) the officer’s monthly
base salary in effect on the termination date multiplied by 12, and (II)
the amount of the officer’s full target bonus for the bonus year in which
termination occurs, multiplied by (b)
2.5;
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a
lump-sum payment in cash equal to the value of the officer’s accrued
salary through the date of such termination, plus the officer’s unused
vacation days earned for the year prior to the year in which the
termination occurs and a pro rata portion of the vacation days earned for
the year in which the termination
occurs;
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payment
by the Company of all applicable medical continuation premiums for
continuation coverage under COBRA for the benefit of the officer (and his
covered dependents as of the date of his termination, if any) under his
then-current plan election for 18 months after termination;
and
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all
stock options, restricted stock awards, restricted stock units and similar
awards granted to the officer by the Company shall become fully
vested.
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In the
case of a termination of the applicable officer’s employment either by the
Company for “cause” or by the officer without “good cause,” the officer would be
entitled to payments for his pro rata monthly base salary and unused vacation,
in each case, through the date of termination, and (except in the case of a for
“cause” termination for gross negligence or willful misconduct or neglect)
all stock options, restricted stock, restricted stock units and other awards
held by the officer would be cancelled. In the case of a termination by
the Company for “cause” for gross negligence or willful misconduct or neglect,
all vested stock options held by the officer would remain exercisable for a
period of up to 30 days following termination.
In
addition to the new executive severance agreements described above, the Company
has assumed the existing executive severance agreements between the Company and
certain of its key employees entered into prior to the Petition Date, including
its executive severance agreements with Michael Gentoso and Jeff
Davis.
The
foregoing description of the new executive severance agreements does not purport
to be complete and is qualified in its entirety by reference to the full text of
the new executive severance agreements for Messrs. Harlan, Lindeman and Lewis,
which are attached as Exhibits 10.4, 10.5 and 10.6 hereto, respectively, and are
incorporated herein by reference.
Salary
Adjustments, Awards under the Management Equity Incentive Plan and Cash
Bonuses
On
September 28, 2010, the Compensation Committee of the Board of Directors of U.S.
Concrete, Inc. (the “Committee”) approved (a) an increase in the annual salary
of Mr. Curt M. Lindeman, our Vice President, General Counsel and Corporate
Secretary, to $275,000, and (b) an annual salary of $275,000 for James C. Lewis,
our Senior Vice President and Chief Financial Officer, both effective as of
October 1, 2010.
On
September 28, 2010, the Committee also approved grants of restricted stock units
and nonqualified stock options to Messrs. Harlan, Lindeman, Lewis, Davis and
Gentoso. All grants of restricted shares and nonqualified stock options
are effective as of October 1, 2010, and shall become vested and exercisable as
to one-twelfth (1/12) of the shares subject thereto on each of the first twelve
quarterly anniversaries of the grant date. Mr. Harlan was granted 104,882
restricted stock units and 28,604, 28,604, 14,302 and 14,302 nonqualified stock
options at strike prices of $12.00, $15.00, $22.69 and $26.68, respectively. Mr.
Lindeman was granted 25,696 restricted stock units and 7,008, 7,008, 3,504 and
3,504 nonqualified stock options at strike prices of $12.00, $15.00, $22.69 and
$26.68, respectively. Mr. Lewis was granted 21,632 restricted stock units and
5,900, 5,900, 2,950 and 2,950 nonqualified stock options at strike prices of
$12.00, $15.00, $22.69 and $26.68, respectively. Mr. Davis was granted 16,086
restricted stock units and 4,387, 4,387, 2,194 and 2,194 nonqualified stock
options at strike prices of $12.00, $15.00, $22.69 and $26.68, respectively. Mr.
Gentoso was granted 16,086 restricted stock units and 4,387, 4,387, 2,194 and
2,194 nonqualified stock options at strike prices of $12.00, $15.00, $22.69 and
$26.68, respectively.
On
September 28, 2010, the Committee also approved discretionary bonus payout
amounts to Messrs. Harlan and Lindeman of $200,000 and $98,000,
respectively.
Item
8.01 Other Events.
On
October 1, 2010, the Company issued a press release announcing that it had
completed the acquisition of three ready-mixed concrete plants and related
assets in the Company’s west Texas market. A copy of the press release is
attached hereto as Exhibit 99.1 and incorporated herein by
reference.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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Exhibit No.
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Exhibit
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10.1
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Redemption
Agreement, dated August 5, 2010, among the Company, the Joint Venture
Partners, Superior and Levy (incorporated by reference to Exhibit 10.1 to
U.S. Concrete’s Form 8-K, filed August 6, 2010).
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10.2
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Joinder
Agreement, dated September 30, 2010, among the Company, the Joint Venture
Partners, Superior, Levy, the New Joint Venture Partner and VCNA, to the
Redemption Agreement.
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10.3
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Promissory
Note, dated September 30, 2010.
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10.4
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Amended
and Restated Executive Severance Agreement, effective as of October 1,
2010, by and between U.S. Concrete, Inc. and Michael W.
Harlan.
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10.5
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Amended
and Restated Executive Severance Agreement, effective as of October 1,
2010, by and between U.S. Concrete, Inc. and Curt M.
Lindeman.
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10.6
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Executive
Severance Agreement, effective as of October 1, 2010, by and between U.S.
Concrete, Inc. and James C. Lewis.
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99.1
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Press
Release of U.S. Concrete, Inc. dated October 1, 2010.
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99.2
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Press
Release of U.S. Concrete, Inc. dated October 1,
2010.
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SIGNATURES
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:
October 4, 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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EXHIBIT
INDEX
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Exhibit
Number
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Description
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10.1
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Redemption
Agreement, dated August 5, 2010, among the Company, the Joint Venture
Partners, Superior and Levy (incorporated by reference to Exhibit 10.1 to
U.S. Concrete’s Form 8-K, filed August 6, 2010).
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10.2
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Joinder
Agreement, dated September 30, 2010, among the Company, the Joint Venture
Partners, Superior, Levy, the New Joint Venture Partner and VCNA, to the
Redemption Agreement.
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10.3
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Promissory
Note, dated September 30, 2010.
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10.4
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Amended
and Restated Executive Severance Agreement, effective as of October 1,
2010, by and between U.S. Concrete, Inc. and Michael W.
Harlan.
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10.5
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Amended
and Restated Executive Severance Agreement, effective as of October 1,
2010, by and between U.S. Concrete, Inc. and Curt M.
Lindeman.
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10.6
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Executive
Severance Agreement, effective as of October 1, 2010, by and between U.S.
Concrete, Inc. and James C. Lewis.
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99.1
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Press
Release of U.S. Concrete, Inc. dated October 1, 2010.
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99.2
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Press
Release of U.S. Concrete, Inc. dated October 1,
2010.
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