EXHIBIT 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is made as of
___________________, 1999 by and between U.S. Concrete, Inc., a Delaware
corporation (the "Company"), and ____________________ ("Indemnitee").
PRELIMINARY STATEMENT
Highly competent persons have become more reluctant to serve corporations
as directors or in other capacities unless they are provided with adequate
protection through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their service to and
activities on behalf of corporations.
The Board of Directors of the Company (the "Board") has determined
that, in order to attract and retain qualified individuals, the Company will
attempt to maintain on an ongoing basis, at its sole expense, liability
insurance to protect persons serving the Company and its subsidiaries from
certain liabilities. Although the furnishing of that insurance has been a
customary and widespread practice among United States-based corporations and
other business enterprises, the Board believes that, given current market
conditions and trends, that insurance may be available to it in the future only
at higher premiums and with more exclusions. At the same time, directors,
officers and other persons in service to corporations or business enterprises
increasingly are being subjected to expensive and time-consuming litigation
relating to, among other matters, matters that traditionally would have been
brought only against the corporation or business enterprise itself. The
uncertainties relating to liability insurance and to indemnification have
increased the difficult of attracting and retaining those persons, and the Board
has determined that (i) this increased difficulty is detrimental to the best
interests of the Company's stockholders and that the Company should act to
assure those persons that there will be increased certainty of such protection
in the future (ii) and it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify those persons to the fullest
extent applicable law permits so that they will serve or continue to serve the
Company free from undue concern that they will not be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants
herein, the parties to this Agreement agree as follows:
Section 1. SERVICES BY INDEMNITEE. Indemnitee agrees to serve as a
director and officer of the Company and, as mutually agreed by Indemnitee and
the Company, as a director, officer, employee, agent or fiduciary of other
corporations, partnerships, joint ventures, trusts or other enterprises
(including, without limitation, employee benefit plans)(each, an "Enterprise").
Indemnitee may at any time and for any reason resign from any such position
(subject to any other contractual obligation or any obligation applicable law
imposes), in which event the Company will have no obligation under this
Agreement to continue Indemnitee in that position. This Agreement is not and is
not to be construed as an employment contract between the Company (or any of its
subsidiaries) and Indemnitee. Indemnitee specifically acknowledges that
Indemnitee's employment
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with the Company (or any of its subsidiaries), if any, is at will, and the
Indemnitee may be discharged at any time for any reason, with or without cause,
except as may be otherwise provided in any written employment contract between
Indemnitee and the Company (or any of its subsidiaries), other applicable formal
severance policies duly adopted by the Board or, with respect to service as a
director of the Company, by the Company's Certificate of Incorporation, Bylaws
and the General Corporation Law of the State of Delaware. The foregoing
notwithstanding, subject to Section 12, this Agreement will continue in force
after Indemnitee has ceased to serve as an officer or director of the Company
and no longer serves at the written request of the Company as a director,
officer, employee, agent or fiduciary of any other Enterprise.
Section 2. INDEMNIFICATION--GENERAL. The Company will indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (i) as this Agreement
permits and (ii) (subject to the provisions hereof) to the fullest extent
applicable law in effect on the date hereof and as amended from time to time
permits. The rights the preceding sentence provide to Indemnitee will include,
but will not be limited to, the rights the other Sections hereof set forth.
Section 3. PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF THE COMPANY.
Indemnitee will be entitled to the rights of indemnification this Section 3
provides if, by reason of his Corporate Status, he is, or is threatened to be
made, a party to or a participant in any threatened, pending or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this Section 3, the Company will indemnify
Indemnitee against, and will hold Indemnitee harmless from and in respect of,
all Expenses, judgments, penalties, fines (including excise taxes) and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection with or in respect of those Expenses, judgments, fines,
penalties or amounts paid in settlement) actually and reasonably incurred by him
or on his behalf in connection with that Proceeding or any claim, issue or
matter therein, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company and, with respect
to any criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
Section 4. PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. Indemnitee
will be entitled to the rights of indemnification this Section 4 provides if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or a participant in any threatened, pending or completed Proceeding brought by
or in the right of the Company to procure a judgment in its favor. Pursuant to
this Section 4, the Company will indemnify Indemnitee against, and will hold
Indemnitee harmless from and in respect of, all Expenses actually and reasonably
incurred by him or on his behalf in connection with that Proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against those Expenses will be made in respect of
any claim, issue or matter in that Proceeding as to which Indemnitee has been
adjudged to be liable to the Company unless and to the extent that the Court of
Chancery, or the court in which that Proceeding has been brought or is pending,
determines that indemnification may be made.
Section 5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision hereof, to the extent
that Indemnitee is, by reason
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of his Corporate Status, a party to (or a participant in) and is successful, on
the merits or otherwise, in defense of any Proceeding, the Company will
indemnify him against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
defense of any Proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters in that Proceeding, the
Company will indemnify Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section 5 and without limitation,
the termination of any claim, issue or matter in any Proceeding by dismissal,
with or without prejudice, will be deemed to be a successful result as to that
claim, issue or matter.
Section 6. INDEMNIFICATION FOR EXPENSES AS A WITNESS.
Notwithstanding any other provision hereof, to the extent that Indemnitee is, by
reason of his Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, the Company will indemnify him against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith.
Section 7. ADVANCEMENT OF EXPENSES. The Company will advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within 10 days after the Company receives a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of that Proceeding. Each such
statement must reasonably evidence the Expenses incurred by or on behalf of
Indemnitee and include or be preceded or accompanied by an undertaking by or on
behalf of Indemnitee to repay any Expenses advanced if it ultimately is
determined that Indemnitee is not entitled to be indemnified by the Company
against those Expenses. The Company will accept any such undertaking without
reference to the financial ability of Indemnitee to make repayment.
Section 8. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION. (a) To obtain indemnification under this Agreement, Indemnitee
must submit to the Company a written request, including therein or therewith
such documentation and information as is reasonably available to Indemnitee and
is reasonably necessary to determine whether and to what extent Indemnitee is
entitled to that indemnification. The Secretary of the Company will, promptly on
receiving such a request for that indemnification, advise the Board in writing
of that request.
(b) On written request by Indemnitee for indemnification pursuant to
Section 8(a), a determination, if applicable law requires, with respect to
Indemnitee's entitlement thereto will be made in the specific case: (i) if a
Change of Control has occurred within two years prior to the date of that
request, by an Independent Counsel in a written opinion to the Board, a copy of
which will be delivered to Indemnitee; or (ii) if a Change of Control has not
occurred within two years prior to the date of that request, (A) by a majority
vote of the Disinterested Directors, even though less than a quorum of the
Board, or (B) if there are no Disinterested Directors, or if the Disinterested
Directors so direct, by an Independent Counsel in a written opinion to the
Board, a copy of which will be delivered to Indemnitee; and, if it is so
determined that Indemnitee is entitled to indemnification
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hereunder, the Company will: (i) within 10 days after that determination pay to
Indemnitee all amounts theretofore incurred by or on behalf of Indemnitee in
respect of which Indemnitee is entitled to that indemnification by reason of
that determination; and (ii) thereafter on written request by Indemnitee, pay to
Indemnitee within 10 days after that request such additional amounts theretofore
incurred by or on behalf of Indemnitee in respect of which Indemnitee is
entitled to that indemnification by reason of that determination. Indemnitee
will cooperate with the person, persons or entity making the determination with
respect to Indemnitee's entitlement to indemnification under this Agreement,
including providing to such person, persons or entity on reasonable advance
request any documentation or information which is (i) not privileged or
otherwise protected from disclosure, (ii) reasonably available to Indemnitee and
(iii) reasonably necessary to that determination. The Company will bear all
costs and expenses (including attorneys' fees and disbursements) Indemnitee
incurs in so cooperating (irrespective of the determination as to Indemnitee's
entitlement to indemnification) and hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(c) If an Independent Counsel is to make the determination of
entitlement to indemnification pursuant to Section 8(b), the Independent Counsel
will be selected as this Section 8(c) provides. If a Change of Control has not
occurred within two years prior to the date of Indemnitee's written request for
indemnification pursuant to Section 8(a), the Board will select the Independent
Counsel, and the Company will give written notice to Indemnitee advising him of
the identity of the Independent Counsel so selected. If a Change of Control has
occurred within two years prior to the date of that written request, Indemnitee
will select the Independent Counsel (unless Indemnitee requests that the Board
make the selection, in which event the preceding sentence will apply), and
Indemnitee will give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the
Company, as the case may be, may, within 10 days after the written notice of
selection has been given, deliver to the Company or to Indemnitee, as the case
may be, a written objection to the selection; provided, however, that any such
objection may be asserted only on the ground that the Independent Counsel so
selected is not an "Independent Counsel" as Section 17 defines that term, and
the objection must set forth with particularity the factual basis for that
assertion. If any such written objection is so made and substantiated, the
Independent Counsel so selected may not serve as Independent Counsel unless and
until that objection is withdrawn or a court has determined that objection is
without merit. If (i) an Independent Counsel is to make the determination of
entitlement to indemnification pursuant to Section 8(b) and (ii) within 20 days
after submission by Indemnitee of a written request for indemnification pursuant
to Section 8(a), no Independent Counsel has been selected and not objected to,
either the Company or Indemnitee may petition the Court of Chancery or other
court of competent jurisdiction for resolution of any objection that has been
made by the Company or Indemnitee to the other's selection of Independent
Counsel and/or for the appointment as Independent Counsel of a person selected
by the petitioned court or by such other person as the petitioned court
designates, and the person with respect to whom all objections are so resolved
or the person so appointed will act as the Independent Counsel under Section
8(b). The Company will pay any and all reasonable fees and expenses the
Independent Counsel incurs in connection with acting pursuant to Section 8(b),
and the Company will pay all reasonable fees and expenses incident to the
procedures this Section 8(c) sets forth, regardless of the manner in which the
Independent
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Counsel is selected or appointed. If (i) the Independent Counsel selected or
appointed pursuant to this Section 8(c) does not make any determination
respecting Indemnitee's entitlement to indemnification hereunder within 90 days
after the Company receives a written request therefor and (ii) any judicial
proceeding or arbitration pursuant to Section 10(a) is then commenced, that
Independent Counsel will be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
Section 9. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. (a) In
making a determination with respect to entitlement to indemnification hereunder,
the person, persons or entity making that determination must presume that
Indemnitee is entitled to indemnification hereunder if Indemnitee has submitted
a request for indemnification in accordance with Section 8(a), and the Company
will have the burden of proof to overcome that presumption in connection with
the making by any person, persons or entity of any determination contrary to
that presumption.
(b) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or on a plea of
nolo contendere or its equivalent, will not (except as this Agreement otherwise
expressly provides) of itself adversely affect the right of Indemnitee to
indemnification hereunder or create a presumption that Indemnitee did not act in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
(c) Any action Indemnitee takes or omits to take in connection with
any employee benefit plan will, if taken or omitted in good faith by Indemnitee
and in a manner Indemnitee reasonably believed to be in the interest of the
participants in or beneficiaries of that plan, be deemed to have been taken or
omitted in a manner "not opposed to the best interests of the Company" for all
purposes hereof.
Section 10. REMEDIES OF INDEMNITEE. (a) In the event that (i) a
determination is made pursuant to Section 8 that Indemnitee is not entitled to
indemnification hereunder, (ii) advancement of Expenses is not timely made
pursuant to Section 7, (iii) an Independent Counsel is to determine Indemnitee's
entitlement to indemnification hereunder, but does not make that determination
within 90 days after receipt by the Company of the request for that
indemnification, (iv) payment of indemnification is not made pursuant to Section
5 or 6 within 10 days after receipt by the Company of a written request therefor
or (v) payment of indemnification pursuant to Section 8(b) is not made timely,
Indemnitee will be entitled to an adjudication from the Court of Chancery of his
entitlement to that indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Indemnitee must commence any such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence that proceeding pursuant to
this Section 10(a); provided, however, that this sentence will not apply in
respect of a proceeding brought by Indemnitee to enforce his rights under
Section 5.
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(b) If a determination has been made pursuant to Section 8(b) that
Indemnitee is not entitled to indemnification hereunder, any judicial proceeding
or arbitration commenced pursuant to this Section 10 will be conducted in all
respects as a de novo trial, or arbitration, on the merits and Indemnitee will
not be prejudiced by reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this Section 10, the Company
will have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be.
(c) If a determination has been made pursuant to Section 8(b) that
Indemnitee is entitled to indemnification hereunder, the Company will be bound
by that determination in any judicial proceeding or arbitration commenced
pursuant to this Section 10, absent (i) a misstatement by Indemnitee of a
material fact, or an omission by Indemnitee of a material fact necessary to make
Indemnitee's statements not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d) If Indemnitee, pursuant to this Section 10, seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or to
recover damages for breach of, this Agreement, Indemnitee will be entitled to
recover from the Company, and will be indemnified by the Company against, any
and all expenses (of the types described in the definition of Expenses in
Section 17) actually and reasonably incurred by him in that judicial
adjudication or arbitration, but only if he prevails therein. If it is
determined in that judicial adjudication or arbitration that Indemnitee is
entitled to receive part of, but not all, the indemnification or advancement of
expenses sought, the Expenses incurred by Indemnitee in connection with that
judicial adjudication or arbitration will be appropriately prorated between
those in respect of which this Section 10(d) entitles Indemnitee to
indemnification and those Indemnitee must bear.
Section 11. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION. (a) The rights to indemnification and advancement of Expenses this
Agreement provides are not and will not be deemed exclusive of any other rights
to which Indemnitee may at any time be entitled under applicable law, the
Company's Certificate of Incorporation, the Company's Bylaws, any agreement, a
vote of stockholders or a resolution of directors, or otherwise. No amendment,
alteration or termination of this Agreement or any provision hereof will limit
or restrict any right of Indemnitee hereunder in respect of any action
Indemnitee has taken or omitted in his Corporate Status prior to that amendment,
alteration or termination. To the extent that a change in Delaware law (whether
by statute or judicial decision) permits greater indemnification by agreement
than would be afforded currently under this Agreement, it is the intent and
agreement of the parties hereto that Indemnitee will enjoy by this Agreement the
greater benefits that change affords.
(b) If the Company maintains an insurance policy or policies
providing liability insurance for directors, officers, employees, agents or
fiduciaries of the Company or of any other Enterprise that any such person
serves at the written request of the Company, Indemnitee will be covered by such
policy or policies in accordance with its or their terms to the maximum extent
of
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the coverage available for any such director, officer, employee, agent or
fiduciary under such policy or policies.
(c) The Company will not be liable under this Agreement to make any
payment of amounts otherwise indemnifiable hereunder if and to the extent that
Indemnitee has otherwise actually received that payment or obtained the entire
benefit therefrom under any insurance policy, contract, agreement or otherwise.
(d) If the Company makes any payment hereunder, it will be
subrogated to the extent of that payment to all the rights of recovery of
Indemnitee, who will execute all papers required and take all action necessary
to secure those rights, including execution of such documents as are necessary
to enable the Company to bring suit to enforce those rights.
(e) The Company's obligation to indemnify or advance Expenses
hereunder to Indemnitee with respect to Indemnitee's service at the written
request of the Company as a director, officer, employee, agent or fiduciary of
any other Enterprise will be reduced by any amount Indemnitee has actually
received as indemnification or advancement of Expenses from that other
Enterprise.
Section 12. DURATION OF AGREEMENT. This Agreement will continue
until and terminate on the later of: (i) 10 years after the date that Indemnitee
has ceased to serve as a director or officer of the Company or as a director,
officer, employee, agent or fiduciary of any other Enterprise that Indemnitee
served on behalf of the Company at the written request of the Company; or (ii)
the final termination of any Proceeding then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Section 10
relating thereto. This Agreement will be binding on the Company and its
successors and assigns and will inure to the benefit of Indemnitee and his
spouse (if Indemnitee resides in Texas or another community property state),
heirs, executors and administrators.
Section 13. SEVERABILITY. If any provision or provisions of this
Agreement is or are invalid, illegal or unenforceable for any reason whatsoever:
(i) the validity, legality and enforceability of the remaining provisions hereof
(including, without limitation, each portion of any Section containing any such
invalid, illegal or unenforceable provision which is not itself invalid, illegal
or unenforceable) will not in any way be affected or impaired thereby; (ii) such
provision or provisions will be deemed reformed to the extent necessary to
conform to applicable law and to give the maximum effect to the intent of the
parties hereto; and (iii) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section containing
any such invalid, illegal or unenforceable provision which is not itself
invalid, illegal or unenforceable) will be construed so as to give effect to the
intent manifested thereby.
Section 14. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF
EXPENSES. Notwithstanding any other provision hereof, Indemnitee will not be
entitled to indemnification or
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advancement of Expenses under this Agreement with respect to any Proceeding
brought by Indemnitee or any claim therein prior to a Change of Control, unless
the Board has approved the bringing of that Proceeding or the making of that
claim.
Section 15. IDENTICAL COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which will for all purposes be deemed to be
an original but all of which together will constitute one and the same
agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
Section 16. HEADINGS. The headings of the Sections hereof are
inserted for convenience only and do not and will not be deemed to constitute
part of this Agreement or to affect the construction thereof.
Section 17. DEFINITIONS. For purposes of this Agreement:
"ACQUIRING PERSON" means any Person who or which, together with all
its Affiliates and Associates, is or are the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding, but does not include
any Exempt Person; provided, however, that a Person will not be or become
an Acquiring Person if that Person, together with its Affiliates and
Associates, becomes the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding solely as a result of a reduction in the
number of shares of Common Stock outstanding which results from the
Company's direct or indirect repurchase of Common Stock, unless and until
such time as that Person or any Affiliate or Associate of that Person
purchases or otherwise becomes the Beneficial Owner of additional shares
of Common Stock constituting 1% or more of the then outstanding shares of
Common Stock or any other Person (or Persons) who is (or collectively are)
the Beneficial Owner of shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock becomes an Affiliate or
Associate of that Person, unless, in either such case, that Person,
together with all its Affiliates and Associates, is not then the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding.
Notwithstanding anything in this definition of "Acquiring Person" to
the contrary, so long as Main Street Merchant Partners II, L.P., a
Delaware limited partnership ("Main Street"), together with all Affiliates
and Associates thereof, remains the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock, Main Street and any Affiliate or
Associate thereof will not be or become an Acquiring Person unless and
until that Person, together with all Affiliates and Associates thereof,
purchases or otherwise becomes the Beneficial Owner of additional shares
of Common Stock constituting 1% or more of the then outstanding shares of
Common Stock or any other Person (or Persons) who is (or collectively are)
the Beneficial Owner of shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock becomes an Affiliate or
Associate of that Person unless, in either such case, that Person,
together with all Affiliates and Associates of that
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Person, is not then the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding.
"AFFILIATE" has the meaning Exchange Act Rule 12b-2 specifies.
"ASSOCIATE" means, with reference to any Person, (i) any
corporation, firm, partnership, limited liability company, association,
unincorporated organization or other entity (other than the Company or a
subsidiary of the Company) of which that Person is an officer or general
partner (or officer or general partner of a general partner) or is,
directly or indirectly, the Beneficial Owner of 10% or more of any class
of its equity securities or interests, (ii) any trust or other estate in
which that Person has a substantial beneficial interest or for or of which
that Person serves as trustee or in a similar fiduciary capacity and (iii)
any relative or spouse of that Person, or any relative of that spouse, who
has the same home as that Person.
A specified Person is deemed the "BENEFICIAL OWNER" of, and is
deemed to "beneficially own," any securities:
(i) of which that Person or any of that Person's Affiliates or
Associates, directly or indirectly, is the "beneficial owner" (as
determined pursuant to Exchange Act Rule 13d-3) or otherwise has the
right to vote or dispose of, including pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
however, that a Person will not be deemed the "Beneficial Owner" of,
or to "beneficially own," any security under this subparagraph (i)
as a result of an agreement, arrangement or understanding to vote
that security if that agreement, arrangement or understanding: (A)
arises solely from a revocable proxy or consent given in response to
a public (that is, not including a solicitation exempted by Exchange
Act Rule 14a-2(b)(2)) proxy or consent solicitation made pursuant
to, and in accordance with, the applicable provisions of the
Exchange Act; and (B) is not then reportable by that Person on
Exchange Act Schedule 13D (or any comparable or successor report);
(ii) which that Person or any of that Person's Affiliates or
Associates, directly or indirectly, has the right or obligation to
acquire (whether that right or obligation is exercisable or
effective immediately or only after the passage of time or the
occurrence of an event) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or on the exercise of
conversion rights, exchange rights, other rights, warrants or
options, or otherwise; provided, however, that a Person will not be
deemed the "Beneficial Owner" of, or to "beneficially own,"
securities tendered pursuant to a tender or exchange offer made by
that Person or any of that Person's Affiliates or Associates until
those tendered securities are accepted for purchase or exchange; or
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(iii) which are beneficially owned, directly or indirectly, by
(A) any other Person (or any Affiliate or Associate thereof) with
which the specified Person or any of the specified Person's
Affiliates or Associates has any agreement, arrangement or
understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy or
consent as described in the proviso to subparagraph (i) of this
definition) or disposing of any voting securities of the Company or
(B) any group (as Exchange Act Rule 13d-5(b) uses that term) of
which that specified Person is a member;
provided, however, that nothing in this definition will cause a Person
engaged in business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own," any securities that Person acquires
through its participation in good faith in a firm commitment underwriting
(including, without limitation, securities acquired pursuant to
stabilizing transactions to facilitate a public offering in accordance
with Exchange Act Regulation M or to cover overallotments created in
connection with a public offering) until the expiration of 40 days after
the date of that acquisition. For purposes of this definition, "voting" a
security includes voting, granting a proxy, acting by consent, making a
request or demand relating to corporate action (including, without
limitation, calling a stockholder meeting) or otherwise giving an
authorization (within the meaning of Section 14(a) of the Exchange Act) in
respect of that security.
"CHANGE OF CONTROL" means the occurrence of any of the following
events that occurs after the IPO Closing Date: (i) any Person becomes an
Acquiring Person; (ii) at any time the then Continuing Directors cease to
constitute a majority of the members of the Board; (iii) a merger of the
Company with or into, or a sale by the Company of its properties and
assets substantially as an entirety to, another Person occurs and,
immediately after that occurrence, any Person, other than an Exempt
Person, together with all Affiliates and Associates of that Person (other
than Exempt Persons), will be the Beneficial Owner of 15% or more of the
total voting power of the then outstanding Voting Shares of the Person
surviving that transaction (in the case or a merger or consolidation) or
the Person acquiring those properties and assets substantially as an
entirety unless that Person, together with all its Affiliates and
Associates, was the Beneficial Owner of 15% or more of the shares of
Common Stock outstanding prior to that transaction.
"COMMON STOCK" means (i) the common stock, par value $.001 per
share, of the Company and (ii) any other class of capital stock of the
Company which is (A) except for less voting rights, identical to the
common stock clause (i) of this definition describes and (B) convertible
into that common stock on a share for share basis on the occurrence of a
Change of Control.
"CONTINUING DIRECTOR" means at any time any individual who then (i)
is a member of the Board and was a member of the Board as of the IPO
Closing Date or whose nomination for his first election, or that first
election, to the Board following that date was
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recommended or approved by a majority of the then Continuing Directors
(acting separately or as a part of any action taken by the Board or any
committee thereof) and (ii) is not an Acquiring Person, an Affiliate or
Associate of an Acquiring Person or a nominee or representative of an
Acquiring Person or of any such Affiliate or Associate.
"CORPORATE STATUS" describes the status of a natural person who is
or was a director, officer, employee or agent of the Company or of any
other Enterprise, provided that person is or was serving in that capacity
at the written request of the Company. For purposes of this Agreement,
"serving at the written request of the Company" includes any service by
Indemnitee which imposes duties on, or involves services by, Indemnitee
with respect to any employee benefit plan or its participants or
beneficiaries.
"COURT OF CHANCERY" means the Court of Chancery of the State of
Delaware.
"DISINTERESTED DIRECTOR" means a director of the Company who is not
and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee hereunder.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXEMPT PERSON" means: (i)(A) the Company, any subsidiary of the
Company, any employee benefit plan of the Company or of any subsidiary of
the Company and (B) any Person organized, appointed or established by the
Company for or pursuant to the terms of any such plan or for the purpose
of funding any such plan or funding other employee benefits for employees
of the Company or any subsidiary of the Company; and (ii) Indemnitee, any
Affiliate or Associate of Indemnitee or any group (as Exchange Act Rule
13d-5(b) uses that term) of which Indemnitee or any Affiliate or Associate
of Indemnitee is a member.
"EXPENSES" include all attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness
in, or otherwise participating in, a Proceeding and all interest or
finance charges attributable to any thereof. Should any payments by the
Company under this Agreement be determined to be subject to any federal,
state or local income or excise tax, "Expenses" also will include such
amounts as are necessary to place Indemnitee in the same after-tax
position (after giving effect to all applicable taxes) he would have been
in had no such tax been determined to apply to those payments.
"INDEPENDENT COUNSEL" means a law firm, or a member of a law firm,
that or who is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent:
(i) the Company, its affiliates or Indemnitee in any matter
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material to any such party; or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term "Independent Counsel" does not include at any time any
person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Company or Indemnitee in an action to determine Indemnitee's rights under
this Agreement.
"IPO" means the first time a registration statement the Company has
filed under the Securities Act of 1933, as amended, and respecting an
underwritten primary offering by the Company of shares of Common Stock
becomes effective under that Act and the Company issues and sells any of
the shares registered by that registration statement.
"IPO CLOSING DATE" means the date on which the Company first
receives payment for the shares of Common Stock it sells in the IPO.
"PERSON" means any natural person, sole proprietorship, corporation,
partnership of any kind having a separate legal status, limited liability
company, business trust, unincorporated organization or association,
mutual company, joint stock company, joint venture, estate, trust, union
or employee organization or governmental authority.
"PROCEEDING" includes any action, suit, alternate dispute resolution
mechanism, hearing or any other proceeding, whether civil, criminal,
administrative, arbitrative, investigative or mediative, any appeal in any
such action, suit, alternate dispute resolution mechanism, hearing or
other proceeding and any inquiry or investigation that could lead to any
such action, suit, alternate dispute resolution mechanism, hearing or
other proceeding, except one (i) initiated by an Indemnitee pursuant to
Section 10 to enforce his rights hereunder or (ii) pending on or before
the date of this Agreement.
"VOTING SHARES" means: (i) in the case of any corporation, stock of
that corporation of the class or classes having general voting power under
ordinary circumstances to elect a majority of that corporation's board of
directors; and (ii) in the case of any other entity, equity interests of
the class or classes having general voting power under ordinary
circumstances equivalent to the Voting Shares of a corporation.
Section 18. MODIFICATION AND WAIVER. No supplement to or
modification or amendment of this Agreement will be binding unless executed in
writing by both parties hereto. No waiver of any of the provisions of this
Agreement will be deemed or will constitute a waiver of any other provisions
hereof (whether or not similar), nor will any such waiver constitute a
continuing waiver.
Section 19. NOTICE BY INDEMNITEE. Indemnitee agrees promptly to
notify the Company in writing on being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses hereunder; provided, however, a failure to give that
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notice will not deprive Indemnitee of his rights to indemnification and
advancement of Expenses hereunder unless the Company is actually and materially
prejudiced thereby.
Section 20. NOTICES. All notices, requests, demands and other
communications hereunder must be in writing and will be deemed delivered and
received (i) if personally delivered or if delivered by telex, telegram,
facsimile or courier service, when actually received by the party to whom the
notice or communication is sent or (ii) if delivered by mail (whether actually
received or not), at the close of business on the third business day in the city
in which the Company's principal executive office is located next following the
day when placed in the mail, postage prepaid, certified or registered, addressed
to the appropriate party at the address of that party set forth below (or at
such other address as that party may designate by written notice to the other
party in accordance herewith):
(a) If to Indemnitee, to: ______________________________________
______________________________________
______________________________________
with a copy (which will not constitute notice for the purposes
of this Agreement) to such legal counsel, if any, as the
Indemnitee may designate in writing; and
(b) If to the Company, to: U.S. Concrete, Inc.
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
Section 21. CONTRIBUTION. To the fullest extent applicable law
permits, if the indemnification this Agreement provides is unavailable to
Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying
Indemnitee, will contribute to the amount incurred by Indemnitee, whether for
judgments, fines, penalties, excise taxes, amounts paid or to be paid in
settlement and/or for Expenses, in connection with any claim relating to an
indemnifiable event under this Agreement, in such proportion as is deemed fair
and reasonable in light of all the circumstances of that Proceeding in order to
reflect: (i) the relative benefits received by the Company and Indemnitee as a
result of the event(s) and/or transaction(s) giving rise to that Proceeding;
and/or (ii) the relative fault of the Company (and its directors, officers,
employees and agents) and Indemnitee in connection with such event(s) and/or
transaction(s).
Section 22. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and the legal relations among the parties will be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. Except with respect to any
arbitration Indemnitee commences pursuant to Section 10(a), the Company and
Indemnitee hereby irrevocably and unconditionally (i) agree that any action or
proceeding arising out of or in connection with this Agreement will be brought
only in the Court of Chancery and not
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in any other state or federal court in the United States of America or any court
in any other country, (ii) consent to submit to the exclusive jurisdiction of
the Court of Chancery for purposes of any action or proceeding arising out of or
in connection with this Agreement, (iii) waive any objection to the laying of
venue of any such action or proceeding in the Court of Chancery and (iv) waive,
and agree not to plead or to make, any claim that any such action or proceeding
brought in the Court of Chancery has been brought in an improper or otherwise
inconvenient forum.
Section 23. MISCELLANEOUS. Use of one gender herein includes usage
of each other gender where appropriate. This Agreement uses the words "herein,"
"hereof" and words of similar import to refer to this Agreement as a whole and
not to any provision of this Agreement, and the word "Section" refers to a
Section of this Agreement, unless otherwise specified.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST: U.S. CONCRETE, INC.
By: ____________________________ By: ___________________________________
Print Name: ____________________ Name: _________________________________
Title: ________________________________
ATTEST: INDEMNITEE:
By:_____________________________ _______________________________________
Print Name:_____________________ [Name]
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