UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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): July
31, 2007
U.S.
Concrete, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or
other jurisdiction of
incorporation)
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000-26025
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76-0588680
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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
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77042
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(Address
of principal executive offices)
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(Zip
Code)
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(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 (see
General
Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
| Item 5.02 |
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Departure
of Directors or Certain Officers; Election of Directors; Appointment
of
Certain Officers; Compensatory Arrangements of Certain
Officers
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New
Executive Severance Agreements
On
July
31, 2007, we entered into new Executive Severance Agreements with several of
our
officers, including the following “named executive officers” identified in our
proxy statement relating to our 2007 annual meeting of stockholders: Michael
W.
Harlan, Robert D. Hardy and Thomas J. Albanese. The new agreements generally
replace other agreements or term sheets previously agreed to between us and
the
applicable officers. Each Executive Severance Agreement 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 a confidentiality agreement, requiring the applicable officer to
maintain the confidentiality of confidential information we provide him, as
well
as a non-competition agreement that generally extends for one year after the
officer’s employment terminates (subject to extension in the event of a change
of control, so that the non-competition agreement will extend to cover the
number of months used to determine the severance benefits payable to him (as
described below)).
In
the
case of a termination of the applicable officer’s employment either by us
without “cause” or by the officer for “good cause,” the officer would generally
be entitled to the following severance benefits:
• a
lump-sum payment in cash equal to the officer’s monthly base salary in effect on
the date of termination multiplied by 12, together with a prorated amount of
monthly base salary for any partial month in which the termination
occurs;
• 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)
unused vacation days earned the year prior to the year in which the termination
occurs, plus pro rata vacation days earned in the year in which the termination
occurs;
• payment
by us 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
• immediate
vesting of all outstanding and previously unvested stock options, restricted
stock awards, restricted stock units and similar awards granted to the officer
by us prior to the date of termination, and immediate lapsing of any
restrictions, forfeiture conditions or other conditions or criteria applicable
to any such awards on the date of termination.
In
the
event there is a “change of control” of our company and within one year
thereafter the officer’s employment is terminated by us without cause or by the
officer for good cause, the lump-sum payments described above with respect
to
monthly base salary and target bonus will each be increased by multiplying
them
by: 3, in the case of Mr. Harlan; 2.5, in the case of Mr. Hardy and certain
other officers; or 2, in the case of Mr. Albanese and each other officer who
is
a party to an Executive Severance Agreement.
In
the
case of termination by reason of the officer’s death or long-term/permanent
disability, the officer or his heirs would be entitled to substantially the
same
benefits as outlined above for a termination by us without cause or by the
officer for good cause, except that any unvested stock options would not become
vested, but instead would terminate immediately.
In
the
case of a termination of the applicable officer’s employment either by us 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 unvested
stock options, restricted stock, restricted stock units and other awards held
by
the officer would be cancelled. Also, in the case of a termination by us for
cause, all vested stock options held by the officer would remain exercisable
for
a period of up to 90 days, after which they would expire.
Under
each Executive Severance Agreement, we would have “cause” to terminate the
applicable officer’s employment in the event of:
• the
officer’s gross negligence, willful misconduct or willful neglect in the
performance of his material duties and services to us;
• the
officer’s final conviction of a felony by a trial court, or his entry of a plea
of nolo contendere to a felony charge;
• any
criminal indictment of the officer relating to an event or occurrence for which
he was directly responsible which, in the business judgment of a majority of
our
Board of Directors, exposes our company to ridicule, shame or business or
financial risk; or
• a
material breach by the officer of any material provision of the Executive
Severance Agreement.
On
the
other hand, the officer generally would have “good cause” to terminate his
employment if there is:
• a
diminution in his then current monthly base salary;
• a
material change in the location of his principal place of employment by
us;
• any
material diminution in his current position or any title or position to which
he
has been promoted;
• any
material diminution of his authority, duties or responsibilities from those
commensurate and consistent with the character, status and dignity appropriate
to his current position or any title or position to which he has been promoted
(provided, however, that if at any time he ceases to have such duties and
responsibilities because we cease to have any securities registered under
Section 12 of the Securities Exchange Act of 1934, as amended, or cease to
be
required to file reports under Section 15(d) of the Securities Exchange Act
of
1934, as amended, then the officer’s authority, duties and responsibilities will
not be deemed to have been materially diminished solely due to the cessation
of
such publicly-traded company duties and responsibilities);
• any
material breach by us of any material provision of the Executive Severance
Agreement, including any failure by us to pay any amount due under the Executive
Severance Agreement; or
• with
respect to Messrs. Harlan and Hardy and other specified officers, any
restructuring of his direct reporting relationship within our
company.
Under
each Executive Severance Agreement, a “change in control” will be deemed to have
occurred on the earliest of any of the following dates:
• the
date
our company merges or consolidates with any other person or entity, and the
voting securities of our company outstanding immediately prior to such merger
or
consolidation do not continue to represent (either by remaining outstanding
or
by being converted into voting securities of the surviving entity) more than
50%
of the total voting power of the voting securities of our company or such
surviving entity outstanding immediately after such merger or
consolidation;
• the
date
our company sells all or substantially all of our assets to any other person
or
entity;
• the
date
our company is dissolved;
• the
date
any person or entity together with its affiliates becomes, directly or
indirectly, the beneficial owner of voting securities representing more than
50%
of the total voting power of all then outstanding voting securities of our
company; or
• the
date
the individuals who currently constitute the non-employee members of our Board
of Directors (the “Incumbent Board”) cease for any reason to constitute at least
a majority of the non-employee members of our Board, provided that, for purposes
of this clause, any person becoming a director whose election or nomination
for
election by our stockholders was approved by a vote of at least 80% of the
directors comprising the Incumbent Board then still in office (or whose election
or nomination was previously so approved) will be considered as though such
person were a member of the Incumbent Board.
The
terms
of the Executive Severance Agreements with each of the named executive officers,
copies of which is being filed as exhibits to this Current Report on Form 8-K,
are hereby incorporated by reference in their entirety.
Modified
Director Fee Schedule
In
addition, on July 31, 2007, our Board of Directors approved modifications
to the annual retainers and meeting fees we pay to members of our Board of
Directors and its committees. The revised fees, which became effective upon
adoption, are as follows:
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Amount
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Board
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Retainer
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$30,000*
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Meeting
Fee (in person/telephonic)
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$5,000/$2,500
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Audit
Committee
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Retainer
(Chair)
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$10,000
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Retainer
(Other Members)
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$5,000
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Meeting
Fee (Chair) (in person/telephonic)
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$4,000/$2,000
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Meeting
Fee (Other Members) (in person/telephonic)
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$4,000/$2,000
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Compensation
Committee &
Nominating
and Corporate Governance Committee
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Retainer
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$5,000
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Meeting
Fee (in person/telephonic)
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$2,000/$1,000**
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Equity
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Annual
Option Award (number of shares of Common Stock underlying
award)
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10,000
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*
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The
retainer includes amounts to be paid in place of meeting fees for
two
telephonic board meetings and two telephonic committee meetings.
Accordingly, the board and committee meeting fees set forth below
will not
apply to such telephonic meetings.
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| ** |
If
a committee meeting is held on the same day as a Board meeting, then
the
committee member will receive no separate fee for attending that
committee
meeting.
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Addition
of William T. Albanese to Board of Directors
On
August
6, 2007, U.S. Concrete announced that its Board of Directors elected William
T.
Albanese to fill a newly created directorship and serve as a member of the
Board
of Directors. Mr. Albanese will, along with U.S. Concrete’s continuing
directors, be subject to re-election at U.S. Concrete’s 2008 annual meeting of
shareholders. Mr. Albanese was not elected to the Board of Directors pursuant
to
any arrangement or understanding with any third party. As of the date of this
report, no decision has been made by the Board of Directors as to the committees
of the Board on which Mr. Albanese will serve.
Mr.
Albanese currently serves as our Regional Vice President—Northern California
Region, and has served in that role since May 2005. He previously served as
President of our Bay Area Region from June 1999 through May 2005. From
1987 through May 1999, Mr. Albanese served as President of Central
Concrete Supply Co., Inc. (“Central”), one of the companies we acquired in
May 1999 as the platform business of our Bay Area Region into which we
subsequently consolidated other Bay Area operations. Previously, he served
in
various other capacities for Central since 1966.
Resignation
of Robert S. Walker from the Board of Directors, effective December 31,
2007
On
August
6, 2007, U.S. Concrete announced that Robert S. Walker will be retiring from
the
Company’s Board of Directors, effective December 31, 2007.
Promotion
of Robert D. Hardy as Executive Vice President
On
August
6, 2007, U.S. Concrete announced that Robert D. Hardy, the Company’s Senior Vice
President and Chief Financial Officer, has been appointed Executive Vice
President and Chief Financial Officer.
| Item
9.01 |
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Financial
Statements and Exhibits
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Exhibit No.
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Exhibit
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10.1
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Michael W. Harlan.
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10.2
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Robert D. Hardy.
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10.3
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Thomas J. Albanese.
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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:
August 6, 2007 |
By: |
/s/
Robert D. Hardy
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Robert
D. Hardy
Senior
Vice President and Chief Financial
Officer
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Exhibit
Index
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Exhibit
No.
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Exhibit
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10.1
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Michael W. Harlan.
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10.2
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Robert D. Hardy.
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10.3
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Severance
Agreement, dated as of July 31, 2007, by and between U.S. Concrete,
Inc.
and Thomas J. Albanese.
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