US 1618138v.1 U.S. CONCRETE, INC. LONG TERM INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT (Directors) This Agreement is made and entered into as of [●] (the “Date of Grant”) by and between U.S. Concrete, Inc., a Delaware corporation (the “Company”)...
US 1618138v.1
U.S. CONCRETE, INC.
LONG TERM INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
(Directors)
This Agreement is made and entered into as of [●] (the “Date of Grant”) by and between
U.S. Concrete, Inc., a Delaware corporation (the “Company”) and [●] (“you” or “Grantee”);
WHEREAS, the Company, in order to induce you to enter into and to continue and
dedicate service to the Company and to materially contribute to the success of the Company,
agrees to grant you this restricted stock unit award;
WHEREAS, the Company adopted the U.S. Concrete, Inc. Long Term Incentive Plan, as
it may be amended from time to time (the “Plan”) under which the Company is authorized to
grant restricted stock units to certain employees, directors and other service providers of the
Company;
WHEREAS, a copy of the Plan has been furnished to you and shall be deemed a part of
this restricted stock unit agreement (“Agreement”) as if fully set forth herein and the terms
capitalized but not defined herein shall have the meanings set forth in the Plan; and
WHEREAS, you desire to accept the restricted stock unit award made pursuant to this
Agreement.
NOW, THEREFORE, in consideration of and mutual covenants set forth herein and for
other valuable consideration hereinafter set forth, the parties agree as follows:
1. The Grant.
(a) Generally. Subject to the conditions set forth below and in the remainder
of this Agreement, the Company hereby grants you, effective as of the Date of Grant, an award
consisting of [●] Restricted Stock Units, whereby each Restricted Stock Unit represents the right
to receive one share of common stock, par value $0.001 per share, of the Company (“Stock”),
plus the additional rights to Dividend Equivalents set forth in Section 3, in accordance with the
terms and conditions set forth herein and in the Plan (the “Award”). To the extent that any
provision of this Agreement conflicts with the expressly applicable terms of the Plan, you
acknowledge and agree that those terms of the Plan shall control and, if necessary, the applicable
terms of this Agreement shall be deemed amended so as to carry out the purpose and intent of the
Plan. Terms that have their initial letter capitalized, but that are not otherwise defined in this
Agreement shall have the meanings given to them in the Plan.
2. No Shareholder Rights. The Restricted Stock Units granted pursuant to this
Agreement do not and shall not entitle you to any rights of a holder of Stock prior to the date
shares of Stock are issued to you in settlement of the Award. Your rights with respect to the
Restricted Stock Units shall remain forfeitable at all times prior to the date on which rights
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become vested and the restrictions with respect to the Restricted Stock Units lapse in accordance
with Section 6.
3. Dividend Equivalents. In the event that the Company declares and pays a
dividend in respect of its outstanding shares of Stock and, on the record date for such dividend,
you hold Restricted Stock Units granted pursuant to this Agreement that have not been settled,
the Company shall create a bookkeeping account that will track the amount of the Dividend
Equivalents you would have been entitled to receive on or following the Date of Grant as if you
had been the holder of record of the number of shares of Stock related to the Restricted Stock
Units that have not been settled as of the record date, calculated without interest. All Dividend
Equivalent amounts credited to your bookkeeping account from the Date of Grant until the
settlement of the underlying Restricted Stock Units shall be paid to you in a lump sum cash
payment on the date that the underlying Restricted Stock Units associated with that Dividend
Equivalent amount is settled pursuant to Section 5 below. In the event that the Restricted Stock
Units are forfeited to the Company without settlement to you, you will also forfeit any associated
Dividend Equivalent amounts.
4. Restrictions; Forfeiture. The Restricted Stock Units are restricted in that they
may not be sold, transferred or otherwise alienated or hypothecated until these restrictions are
removed or expire as contemplated in Section 6 and Stock is issued to you as described in
Section 5. The Restricted Stock Units are also restricted in the sense that they may be forfeited
to the Company (the “Forfeiture Restrictions”).
5. Issuance of Stock. No shares of Stock shall be issued to you prior to the date on
which the Restricted Stock Units vest and the restrictions, including the Forfeiture Restrictions,
with respect to the Restricted Stock Units lapse, in accordance with Section 6. After the
Restricted Stock Units vest pursuant to Section 6, the Company shall, promptly and within 60
days of such vesting date, cause to be issued Stock registered in your name in payment of such
vested Restricted Stock Units. The Company shall evidence the Stock to be issued in payment of
such vested Restricted Stock Units in the manner it deems appropriate. The value of any
fractional Restricted Stock Units shall be rounded down at the time Stock is issued to you in
connection with the Restricted Stock Units. No fractional shares of Stock, nor the cash value of
any fractional shares of Stock, will be issuable or payable to you pursuant to this Agreement.
The value of such shares of Stock shall not bear any interest owing to the passage of time.
Neither this Section 5 nor any action taken pursuant to or in accordance with this Section 5 shall
be construed to create a trust or a funded or secured obligation of any kind.
6. Vesting Schedule. Subject to all other terms and conditions of this Agreement,
your Restricted Stock Units will be divided into four (4) tranches and will vest in accordance
with the following schedule, provided that you remain a service provider to the Company or its
Subsidiaries from the Date of Grant until the applicable vesting date:
Percentage of Restricted Stock Units Vesting Date
25% January 1, [●]
25% April 1, [●]
25% July 1, [●]
25% October 1, [●]
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Total: 100%
7. Termination of Services. If your service relationship with the Company or any of
its Subsidiaries terminates for any reason, then those Restricted Stock Units for which the
restrictions have not lapsed as of the date of termination shall become null and void and those
Restricted Stock Units shall be forfeited to the Company. The Restricted Stock Units for which
the restrictions have lapsed as of the date of such termination, including Restricted Stock Units
for which the restrictions lapsed in connection with such termination, shall not be forfeited to the
Company and shall be settled as set forth in Section 5.
8. Payment of Taxes. As an independent contractor you will be responsible for the
payment of any and all taxes that result from the grant, vesting or settlement of this Award.
9. Compliance with Securities Law. Notwithstanding any provision of this
Agreement to the contrary, the issuance of Stock will be subject to compliance with all
applicable requirements of federal, state, or foreign law with respect to such securities and with
the requirements of any stock exchange or market system upon which the Stock may then be
listed. No Stock will be issued hereunder if such issuance would constitute a violation of any
applicable federal, state, or foreign securities laws or other law or regulations or the requirements
of any stock exchange or market system upon which the Stock may then be listed. In addition,
Stock will not be issued hereunder unless (a) a registration statement under the Securities Act is,
at the time of issuance, in effect with respect to the shares issued or (b) in the opinion of legal
counsel to the Company, the shares issued may be issued in accordance with the terms of an
applicable exemption from the registration requirements of the Securities Act. YOU ARE
CAUTIONED THAT ISSUANCE OF STOCK UPON THE VESTING OF RESTRICTED
STOCK UNITS GRANTED PURSUANT TO THIS AGREEMENT MAY NOT OCCUR
UNLESS THE FOREGOING CONDITIONS ARE SATISFIED. The inability of the Company
to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the
Company’s legal counsel to be necessary to the lawful issuance and sale of any shares subject to
the Award will relieve the Company of any liability in respect of the failure to issue such shares
as to which such requisite authority has not been obtained. As a condition to any issuance
hereunder, the Company may require you to satisfy any qualifications that may be necessary or
appropriate to evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect to such compliance as may be requested by the
Company. From time to time, the Board and appropriate officers of the Company are authorized
to take the actions necessary and appropriate to file required documents with governmental
authorities, stock exchanges, and other appropriate Persons to make shares of Stock available for
issuance.
10. Non-Solicitation and Non-Disclosure. In consideration for the grant of the
Award, you agree that you will not, during your service with the Company or any of its
Subsidiaries, and for one year thereafter, directly or indirectly, for any reason, for your own
account or on behalf of or together with any other person, entity or organization (a) call on or
otherwise solicit any natural person who is employed by, or providing services to, the Company
or any Subsidiary of the Company in any capacity with the purpose or intent of attracting that
person from the employ of the Company or its Subsidiaries, or (b) divert or attempt to divert
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from the Company or any of its Subsidiaries any customer, client or business relating to the
provision of ready-mixed concrete and services. As further consideration for the grant of the
Award, your agree that you will not at any time, either while providing services to the Company
or its Subsidiaries or at any time thereafter, make any independent use of, or disclose to any
other person, entity or organization (except as authorized in advance in writing by the Company)
any confidential, nonpublic and/or proprietary information of the Company or any of its
Subsidiaries, including, without limitation, information derived from reports, work in progress,
codes, marketing and sales programs, customer lists, records of customer service requirements,
cost summaries, pricing formulae, methods of doing business, ideas, materials or information
prepared or performed for, by or on behalf of the Company or any of its Subsidiaries. In
accordance with the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), and other applicable law,
nothing in this Agreement or any other agreement or policy shall prevent you from, or expose
you to criminal or civil liability under federal or state trade secret law for, (A) directly or
indirectly sharing any Company trade secrets or other confidential information (except
information protected by the Company’s attorney-client or work product privilege) with an
attorney or with any federal, state, or local government agencies, regulators, or officials, for the
purpose of investigating or reporting a suspected violation of law, whether in response to a
subpoena or otherwise, without notice to the Company, or (B) disclosing trade secrets in a
complaint or other document filed in connection with a legal claim, provided that the filing is
made under seal. This Section 10 shall survive the termination of this Award.
11. Legends. The Company may at any time place legends referencing any
restrictions imposed on the shares pursuant to Section 9 on all certificates representing shares
issued with respect to this Award.
12. Right of the Company and Subsidiaries to Terminate Services. Nothing in this
Agreement confers upon you the right to continue performing services for the Company or any
Subsidiary, or interfere in any way with the rights of the Company or any Subsidiary to terminate
your service relationship at any time.
13. Furnish Information. You agree to furnish to the Company all information
requested by the Company to enable it to comply with any reporting or other requirements
imposed upon the Company by or under any applicable statute or regulation.
14. Remedies. The parties to this Agreement shall be entitled to recover from each
other reasonable attorneys’ fees incurred in connection with the successful enforcement of the
terms and provisions of this Agreement whether by an action to enforce specific performance or
for damages for its breach or otherwise.
15. No Liability for Good Faith Determinations. The Company and the members of
the Board shall not be liable for any act, omission or determination taken or made in good faith
with respect to this Agreement or the Restricted Stock Units granted hereunder.
16. Execution of Receipts and Releases. Any payment of cash or any issuance or
transfer of shares of Stock or other property to you, or to your legal representative, heir, legatee
or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full
satisfaction of all claims of such Persons hereunder. The Company may require you or your legal
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representative, heir, legatee or distributee, as a condition precedent to such payment or issuance,
to execute a release and receipt therefor in such form as it shall determine.
17. No Guarantee of Interests. The Board and the Company do not guarantee the
Stock of the Company from loss or depreciation.
18. Company Records. Records of the Company or its Subsidiaries regarding your
period of service, termination of service and the reason(s) therefor, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Company to be incorrect.
19. Notice. All notices required or permitted under this Agreement must be in writing
and personally delivered or sent by mail and shall be deemed to be delivered on the date on
which it is actually received by the person to whom it is properly addressed or if earlier the date
it is sent via certified United States mail.
20. Waiver of Notice. Any person entitled to notice hereunder may waive such notice
in writing.
21. Successors. This Agreement shall be binding upon you, your legal
representatives, heirs, legatees and distributees, and upon the Company, its successors and
assigns.
22. Severability. If any provision of this Agreement is held to be illegal or invalid for
any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such
provision shall be fully severable and this Agreement shall be construed and enforced as if the
illegal or invalid provision had never been included herein.
23. Company Action. Any action required of the Company shall be by resolution of
the Board or by a person or entity authorized to act by resolution of the Board.
24. Headings. The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of the provisions hereof.
25. Governing Law. All questions arising with respect to the provisions of this
Agreement shall be determined by application of the laws of Delaware, without giving any effect
to any conflict of law provisions thereof, except to the extent Delaware state law is preempted by
federal law. The obligation of the Company to sell and deliver Stock hereunder is subject to
applicable laws and to the approval of any governmental authority required in connection with
the authorization, issuance, sale, or delivery of such Stock.
26. Amendment. This Agreement may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Board or the
Committee (i) to the extent permitted by the Plan, (ii) to the extent necessary to comply with
applicable laws and regulations or to conform the provisions of this Agreement to any changes
thereto, or (iii) to settle the Restricted Stock Units pursuant to all applicable provisions of the
Plan. Except as provided in the preceding sentence, this Agreement cannot be modified, altered
or amended in any way that is adverse to you except by a written agreement signed by both the
you and the Company.
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27. The Plan. This Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan.
28. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties with respect to the terms and conditions of the Restricted Stock
Units and supersedes and cancels all prior written or oral commitments, arrangements or
understandings with respect thereto.
29. Acceptance. You, as the above named Grantee, are not required to take any
further action to accept the terms and conditions of this Agreement. If you, as Grantee, desire to
accept the Agreement for the grant of Restricted Stock Units, subject to the terms and provisions
hereof of the Plan and administrative interpretations of such Plan referred to herein, simply retain
a copy of this Agreement for your records, and you shall be DEEMED to have ACCEPTED the
Agreement and you shall be DEEMED to become a PARTY to such Agreement, being bound to
its terms and conditions. By acceptance, Grantee confirms that the Plan and the S-8 prospectus
for the Plan have been made available to the Grantee, and that he or she has read and understands
the S-8 prospectus relating to the issuance of the Restricted Stock Units granted under the terms
and provisions of this Agreement.
If you DO NOT WISH TO ACCEPT this Agreement, you must provide WRITTEN notice of
your desire to reject the Agreement for the grant of Restricted Stock Units within thirty (30)
days of the receipt of this Agreement and such written notice must be signed and dated. Please
send such written notice to Stock Plan Administration, at 000 X. Xxxx Xxxxxx, Xxxxxx, Xxxxx,
00000, Attention: XxXx Xxxxxxx. Again, you must return your written notice of rejection of this
Agreement within 30 days of receipt of this Agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
U.S. CONCRETE, INC.
By:
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer