EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
__________, 1999 by and among U.S. Concrete, Inc., a Delaware corporation
("USC"), the Holders listed on the signature pages hereof (the "Initial
Holders") and any Holder hereafter becoming a party hereto in accordance with
the provisions hereof.
PRELIMINARY STATEMENT
Each Initial Holder has received, or will receive on the IPO Closing
Date (as hereinafter defined), shares of common stock, par value $.001 per
share, of USC pursuant to an agreement with USC, and USC, in order to induce
that Initial Holder to enter into that agreement, has agreed to provide
registration rights on the terms this Agreement sets forth for the benefit of
that Initial Holder.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties to this Agreement agree
as follows:
Section 1. DEFINED TERMS. The following terms this Agreement uses
have the meanings this Section 1 assigns to them.
"Affiliate" means, as to any specified Person, any other Person
that, directly or indirectly through one or more intermediaries or
otherwise, controls, is controlled by or is under common control with the
specified Person. This definition uses "control" to mean the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person (whether through ownership of
capital stock of that Person, by contract or otherwise).
"Blue Sky Laws" has the meaning Section 4(f) specifies.
"Claims" has the meaning Section 10(a) specifies.
"Common Stock" means the common stock, par value $.001 per
share, of USC.
"Eligible Offering" has the meaning Section 3(a) specifies.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor thereto and the rules and regulations
thereunder.
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"Exempt Offering" means any offering by USC of shares of Common
Stock (i) in connection with or pursuant to any benefit, compensation,
incentive or savings plan or program in which any of the officers,
directors, employees or independent contractors of USC or any of its
subsidiaries participate, (ii) as consideration in any business
combination or other acquisition transaction, (iii) as the securities into
or for which other equity or debt securities are convertible or
exchangeable, or as the securities that may be acquired by the exercise of
options, warrants or other rights, in each case at a conversion, exchange
or exercise price representing a premium over the trading price of the
Common Stock at the time of the offering, (iv) made pursuant to Regulation
S under the Securities Act (or any similar provision then in force) or (v)
made only to existing holders of securities issued by USC.
"Holder" means at any time any Person then owning Registrable Common
and having the rights and obligations of a Holder and which (i) is an
Initial Holder, (ii) has been assigned those rights and obligations
pursuant to Section 9(a) or (iii) has become a Holder pursuant to Section
9(b).
"Indemnified Party" has the meaning Section 10(b) specifies.
"Initial Holder" has the meaning the preamble hereto specifies.
"IPO" means the first time a registration statement USC has filed
under the Securities Act and respecting an underwritten primary offering
by USC of shares of Common Stock becomes effective under the Securities
Act and USC issues and sells any of those registered shares.
"IPO Closing Date" means the date on which USC first receives
payment for shares of Common Stock it sells in the IPO.
"Inspector" has the meaning Section 4(e) specifies.
"Lockup Period" has the meaning Section 7 specifies.
"Person" means any natural person, sole proprietorship, corporation,
partnership, limited liability company, business trust, unincorporated
organization or association, estate or trust.
"Proceeding" has the meaning Section 10(b) specifies.
"Records" has the meaning Section 4(e) specifies.
"Red Xxxxxxx Prospectus" means, as applied to any registration
statement USC files under the Securities Act to register unissued shares
of Common Stock for its public offering
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of those shares (other than in an Exempt Offering), the prospectus that
registration statement includes which is labeled "subject to completion"
and is first used in "roadshow" presentations by USC to potential
investors in connection with that offering.
"Registrable Common" means (i) the Common Stock USC issues to the
Initial Holders on or before the IPO Closing Date and (ii) the Common
Stock USC designates in writing as Registrable Common and issues to
Persons who become Holders pursuant to Section 9(b). For purposes of this
Agreement, a share of Registrable Common will cease to be Registrable
Common when (i) a registration statement covering that share has been
filed and become effective under the Securities Act and its Holder
distributes it by means of that effective registration statement, (ii) its
Holder distributes it to the public pursuant to Rule 144 or (iii) it may
be distributed to the public in the United States without being registered
for resale under the Securities Act or subject to the volume limitations
of Rule 144.
"Registration Notice" has the meaning Section 3(b) specifies.
"Related Party" means, as to any specified Person, any other Person
who is an officer, director or agent of the specified Person or who
controls the specified Person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act.
"Requesting Holder" has the meaning Section 3(d) specifies.
"Request Notice" has the meaning Section 3(c) specifies.
"Restricted Period" means (i) the period from and including the date
hereof through and including the first anniversary of the IPO Closing Date
and, as applied to Persons who become Holders at the option of USC
pursuant to Section 9(b), (ii) the period USC designates in writing as
their "Restricted Period."
"Rule 144" means Rule 144 (or any similar or successor provision)
under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor thereto and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission and any successor
thereto as the agency administering the Securities Act.
"Selling Holder" has the meaning Section 4(c) specifies.
"Sellers' Registration Statement" means a registration statement
filed by USC under the Securities Act to register shares of Registrable
Common for resale by Holders pursuant to the exercise of the registration
rights Section 3 provides.
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Section 2. OTHER DEFINITIONAL PROVISIONS. (a) This Agreement uses
the words "herein," "hereof," "hereto" and "hereunder" and words of similar
import to refer to this Agreement as a whole and not to any provision of this
Agreement.
(b) Whenever the context so requires, the singular number includes
the plural and vice versa, and a reference to one gender includes the other
genders.
(c) The word "including" (and, with correlative meaning, the word
"include") means including with limiting the generality of any description
preceding that word, and the verbs "shall" and "will" are used interchangeably
and have the same meaning.
(d) The term "underwriter," as used herein, does not include any
Holder.
Section 3. PIGGYBACK REGISTRATION RIGHTS. (a) If USC proposes to
register any shares of Common Stock for its own account under the Securities Act
at any time or times after the Restricted Period for a public offering, other
than an Exempt Offering, in the United States of those shares for cash (each
such public offering, other than an Exempt Offering, being an "Eligible
Offering"), then, at each of those times, each then Holder will, subject to the
terms and conditions hereof, be entitled to have such number of shares of that
Holder's Registrable Common as that Holder may request in accordance with
Section 3(c) registered under the Securities Act for disposition by means of the
registration statement relating to that Eligible Offering.
(b) In the case of each Eligible Offering, USC will deliver to each
then Holder a written notice of that offering (a "Registration Notice") at least
15 days prior to its filing with the SEC of the registration statement, or the
amendment thereto, which includes the Red Xxxxxxx Prospectus for that offering.
USC will briefly describe in each Registration Notice the Eligible Offering to
which that notice relates and inform the addressee that it has 10 days within
which to request to include shares of its Registrable Common in the registration
statement for that offering.
(c) Any Holder desiring to participate in any Eligible Offering must
deliver to USC within 10 days after the Holder receives the Registration Notice
for that offering a written notice to that effect (a "Request Notice") which
specifies the number of shares of the Holder's Registrable Common the Holder
desires to have registered under the Securities Act for inclusion in that
offering. Any Holder that does not deliver a Request Notice for an Eligible
Offering within that 10-day period will be deemed to have waived its right to
participate in that offering unless USC agrees otherwise in writing.
(d) Any holder that delivers a Request Notice relating to an
Eligible Offering on a timely basis, or as otherwise agreed by USC, pursuant to
Section 3(c) (each such Holder being a "Requesting Holder") will be entitled to
offer and sell shares of its Registrable Common in that offering on the terms
and conditions on which USC offers and sells shares of Common Stock in that
offering if the Requesting Holder complies with the applicable provisions of
Sections 5, 6 and 11; provided, however, that: (i) USC may reserve to itself the
right to be the exclusive grantor of any
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underwriter's overallotment option; and (ii) the shares of Registrable Common
any Requesting Holder will be entitled to offer and sell will be subject to
reduction as Section 3(e) provides.
(e) USC will have the right to determine the aggregate size of each
Eligible Offering and to limit the number of shares of Registrable Common to be
included in that offering without reducing the number of shares of Common Stock
to be offered by USC in that offering, as follows: (i) if the lead managing
underwriter selected by USC for an Eligible Offering (or, if that offering will
not be underwritten, a financial advisor to USC) determines that marketing
factors render necessary or advisable a limitation on the number of shares of
Registrable Common to be included in that offering, USC will be required to
include in that offering only such number of shares of Registrable Common, if
any, as that lead managing underwriter (or financial advisor, as the case may
be) believes (as evidenced by its written advice to USC) will not jeopardize the
success of the primary offering by USC; and (ii) if USC limits the number of
shares of Registrable Common that Requesting Holders may have included in any
Eligible Offering pursuant to clause (i), but does not exclude all shares of
Registrable Common from that offering, the maximum number of shares of
Registrable Common to be included in that offering on behalf of each of those
Requesting Holders will be the product of (A) the number of shares of
Registrable Common that Requesting Holder has specified in its Request Notice
relating to that offering multiplied by (B) the fraction the numerator of which
is the number of shares of Registrable Common that Requesting Holder has
specified in its Request Notice relating to that offering and the denominator of
which is the aggregate number of shares of Registrable Common all those
Requesting Holders have specified in their Request Notices relating to that
offering. If USC reasonably determines, on the basis of advice of its tax
counsel or independent accountants, that the inclusion of a Requesting Holder's
shares of Registrable Common in any Eligible Offering likely would jeopardize
the nonrecognition status under the Internal Revenue Code of 1986, as amended,
of any acquisition transaction effected by USC, USC will be entitled to limit
the number of shares that Requesting Holder may have included in that offering
to such number, if any, as USC determines will not jeopardize that status.
(f) In connection with each Eligible Offering, USC, in its sole
discretion, will determine whether to proceed with or terminate that offering
and to select any underwriter or underwriters to administer that offering.
Section 4. REGISTRATION PROCEDURES. Whenever USC must include shares
of Registrable Common in a registration statement relating to an Eligible
Offering pursuant to Section 3, it will, subject to the applicable terms and
conditions hereof:
(a) cause those shares to be registered under the Securities Act by
means of a Seller's Registration Statement, in either the original filing
thereof or in a pre-effective amendment to a previously filed registration
statement;
(b) prior to the first to occur of (i) the sale by the Holders
thereof, by means of the Sellers' Registration Statement after it becomes
effective under the Securities Act, of all the shares of Registrable
Common covered by the Sellers' Registration Statement when it
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becomes effective under the Securities Act and the elapse of the period in
which a dealer is required by the Securities Act to deliver a prospectus
in connection with its offer and sale of any of those shares and (ii) the
withdrawal by USC of the Sellers' Registration Statement pursuant to
Securities Act Rule 477, prepare and file with the SEC under the
Securities Act such amendments (including post-effective amendments) to
the Sellers' Registration Statement and supplements to the related
prospectus as are necessary (A) to reflect the plan of distribution
contemplated by the Sellers' Registration Statement and (B) so that (1)
neither the Sellers' Registration Statement nor that prospectus contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (2) both the Sellers' Registration Statement and that
prospectus comply in all material respects with all other applicable legal
requirements;
(c) provide to each Holder named as a selling stockholder in the
Sellers' Registration Statement in accordance with such Holder's exercise
of the registration rights Section 3 provides (each a "Selling Holder")
such number of prospectuses (including preliminary prospectuses) and other
documents incident to the offering and sale of that Selling Holder's
Registrable Common by means of the Sellers' Registration Statement as that
Selling Holder from time to time reasonably may request;
(d) prior to the time the Seller's Registration Statement or any
post-effective amendment thereto becomes effective under the Securities
Act, provide an opportunity to review and comment with respect to that
document to one counsel selected by Selling Holders holding a majority of
the shares of Registrable Common covered by that document and reasonably
satisfactory to USC;
(e) provide to each Selling Holder, any managing underwriter
participating in the distribution of the shares of Registrable Common
covered by the Sellers' Registration Statement and any accountant, lawyer
or other professional retained by that Selling Holder or managing
underwriter (each an "Inspector") reasonable access to appropriate
officers and employees of USC to ask questions and obtain information
reasonably requested by that Inspector in connection with that Sellers'
Registration Statement; provided, however, that in connection with any
such access or request, each Selling Holder will and will cause each of
its representative Inspectors to, and USC may require each other Inspector
to, (i) cooperate to the extent reasonably practicable to minimize any
disruption in the operation by USC of its business, (ii) keep confidential
all records, documents and information USC advises are confidential or of
a proprietary nature (collectively, the "Records") and (iii) not use the
information it obtains from the Records as a basis for any market
transactions in the securities of USC unless and until that information is
in the public domain or otherwise becomes publicly available;
(f) use its good-faith efforts to register and qualify the
Registrable Common covered by the Sellers' Registration Statement under
the applicable securities or "blue sky"
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laws (collectively, "Blue Sky Laws") of such jurisdictions as any Selling
Holder reasonably may request; provided that it will not be required to
(i) qualify generally to do business in any jurisdiction where it
otherwise would not be required to qualify but for this paragraph (f),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent
to general service of process in any such jurisdiction;
(g) notify each Selling Holder promptly (i) when it is informed that
the Sellers' Registration Statement or any post-effective amendment
thereto becomes effective under the Securities Act, (ii) of any request by
the SEC for an amendment to the Sellers' Registration Statement or a
supplement to any related prospectus, (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of the Sellers' Registration
Statement or any order preventing or suspending the use of any related
prospectus or the initiation or threat by the SEC of any proceeding for
any of those purposes, (iv) of the suspension of the qualification of any
shares of Registrable Common covered by the Sellers' Registration
Statement for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of any determination by it that any
event has occurred or fact exists which makes untrue any statement of a
material fact included in the Sellers' Registration Statement or any
related then current prospectus or which requires the making of a change
in the Sellers' Registration Statement or that prospectus in order that
the same will not contain any untrue statement of a material fact or omit
to state a material fact required to be contained therein or necessary to
make the statements therein not misleading;
(h) if any order is issued which (i) suspends the effectiveness of
the Sellers' Registration Statement, (ii) suspends or prevents the use of
any related then current prospectus or (iii) suspends the qualification of
any shares of Registrable Common covered by the Sellers' Registration
Statement for sale in any jurisdiction, use commercially reasonable
efforts to obtain the withdrawal of that order;
(i) if the Eligible Offering to which the Sellers' Registration
Statement relates is being underwritten by underwriters, (i) enter into
agreements customary at the time (including an underwriting or purchase
agreement in then-customary form) as those underwriters reasonably may
request in order to facilitate the disposition of the shares of
Registrable Common in that offering, (ii) use reasonable diligence to
obtain an opinion of legal counsel (who may be its general counsel)
covering such matters as are then customarily covered by opinions
addressed to those underwriters by an issuer's counsel and (iii) use
reasonable diligence to obtain a "comfort" letter or letters from its
independent public accountants in their customary form and covering such
matters of the type then customarily covered by "comfort" letters as those
underwriters reasonably may request; and
(j) otherwise use its good-faith efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings statement
that (i) covers a period of at least 12 months beginning
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within three months after the effective date of the Sellers' Registration
Statement and (ii) satisfies the provisions of Section 11(a) of the
Securities Act.
Section 5. UNDERWRITING ARRANGEMENTS. No Holder will be permitted to
participate in any registration hereunder of securities being underwritten and
offered for resale by underwriters unless the Holder (i) agrees to sell the
Holder's Registrable Common on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve those
arrangements, (ii) enters into a written agreement with the managing underwriter
or the representative of the underwriters in such form and containing such
provisions as are then customary in the securities business for such an
arrangement between those underwriters and issuers of USC's size and investment
stature and (iii) completes and executes all questionnaires, powers of attorney,
indemnities and other documents, and obtains such spousal or other consents, as
are reasonably required under the terms of those arrangements and this
Agreement. If a Selling Holder disapproves of the proposed terms of any such
underwriting, it may elect to withdraw therefrom by written notice to USC and
the managing underwriter, delivered not less than 10 days before the Sellers'
Registration Statement is first declared effective under the Securities Act.
Section 6. RULE 144 REPORTING. USC will:
(i) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times from and after 90 days
following the IPO Closing Date;
(ii) use its good-faith efforts to file with the SEC in a timely
manner all reports and other documents Section 13 or 15(d) of the Exchange
Act, as applicable, requires it to file with the SEC; and
(iii) so long as a Holder owns shares of Registrable Common, deliver
to the Holder, on the Holder's request, a written statement as to whether
it is in compliance with the requirements referred to in clause (ii) above
(if it is then subject to those requirements).
Section 7. MARKET STANDOFF. Each Holder agrees, to the extent
permitted by applicable law, that, for so long as the Holder holds shares of
Registrable Common, the Holder will not, except as Section 3 permits, sell,
transfer or otherwise dispose of in a public transaction (including through put
or short-sale arrangements) shares of Common Stock in the period (i) beginning
10 days prior to the effectiveness under the Securities Act of any registration
statement covering shares of Common Stock being publicly offered in an Eligible
Offering or in an Exempt Offering of the type specified in clause (iii) of the
definition of Exempt Offering and (ii) ending 90 days following the date of that
effectiveness (each such period being a "Lockup Period"). USC will provide each
Holder written notice of any Lockup Period.
Section 8. REGISTRATION EXPENSES. (a) Except as Section 8(b)
provides, USC will pay or otherwise bear all the expense attributable to the
registration of Registrable Common under the Securities Act for sale pursuant to
Section 3, including all the following: (i) registration and
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filing fees payable under the Securities Act or Blue Sky Laws; (ii) fees and
expenses incurred in complying with Blue Sky Laws, including the reasonable fees
and disbursements of counsel incurred in that connection; (iii) printing
expenses; (iv) messenger and delivery expenses; (v) USC's internal expenses,
including the salaries and expenses of its employees; (vi) fees and expenses
attributable to the listing of the Registrable Common on each securities
exchange (including, for this purpose, the Nasdaq National Market) on which the
Common Stock is then listed or included at USC's initiation; (vii) registrar and
transfer agents' fees; (viii) fees and disbursements of USC's counsel and
independent certified public accountants; (ix) securities act liability
insurance premiums (if USC elects to obtain that insurance); and (x) fees and
expenses of any special experts or other Persons USC retains in connection with
its compliance with this Agreement.
(b) Each Selling Holder will pay or otherwise bear all underwriting
commissions and discounts and transfer taxes attributable to that Selling
Holder's sale or other disposition of shares of Registrable Common, and each
Holder will pay or otherwise bear (i) the fees and expenses of that Holder's
counsel and any other special experts or Persons that Holder retains in
connection with any Seller's Registration Statement or the sale or other
disposition of that Holder's Registrable Common and (ii) that Holder's internal
expenses, including the salaries and expenses of that Holder's employees.
Section 9. TRANSFERS AND ADDITIONAL GRANTS OF REGISTRATION RIGHTS.
(a) A Holder may not transfer the registration rights this Agreement affords the
Holder to any other Person except as follows: (i) a Holder who is a natural
person may transfer those rights to a member of his immediate family or a trust
for the benefit of one or more members of his immediate family; (ii) a Holder
that is a corporation or other entity may transfer those rights to an Affiliate
of the Holder which also is a corporation or other entity; and (iii) a Holder
may transfer those rights to any other Holder; provided, that any such transfer
will be permitted only if the transferee executes an addendum to this Agreement,
in a form satisfactory to USC, in which that transferee agrees to comply with
and otherwise be bound by all the terms and conditions hereof.
(b) USC may, without the consent of any Holder, extend the
registration rights this Agreement provides to additional Persons who become
holders of Common Stock after the date hereof, in each case by entering into one
more addenda to this Agreement with those Persons pursuant to which, for all
purposes hereof, those Persons will become Holders and any shares of Common
Stock to which those addenda refer will become Registrable Common. Nothing
herein will limit or otherwise restrict the ability or right of USC to grant to
any Person any registration or similar rights in the future respecting shares of
Common Stock or any other securities USC may issue, whether pursuant to the
provisions of this Section 9 or otherwise.
Section 10. INDEMNIFICATION; CONTRIBUTION. (A) INDEMNIFICATION BY
USC USC will, to the extent applicable law permits, indemnify each Selling
Holder who sells shares of Registrable Common by means of a Sellers'
Registration Statement and each of that Selling Holder's Related Parties
against, and hold each of those Persons harmless from and in respect of, any and
all claims, damages, losses, liabilities and expenses (including reasonable
legal expenses) whatsoever
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(collectively, "Claims") that arise from or are based on any untrue statement or
alleged untrue statement of a material fact contained in that Sellers'
Registration Statement or any prospectus (including any preliminary prospectus)
forming a part thereof, or any amendment thereof or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, except insofar as those
Claims arise out of or are based on any such untrue statement or omission or
allegation thereof based on information furnished in writing to USC by or on
behalf of that Selling Holder expressly for use therein. In connection with any
underwritten offering of shares of Registrable Common, USC will indemnify and
hold harmless each participating underwriter and each of that underwriter's
Related Parties on either (i) substantially the same basis on which it will
indemnify each Selling Holder and that Selling Holder's Related Parties pursuant
to this Section 10(a) or (ii) such other basis as underwriters customarily
obtain from issuers at the time of that offering. Notwithstanding the foregoing,
USC's obligations to indemnify and hold harmless pursuant to this Section 10(a)
with respect to any Claim (or action or proceeding in respect thereof) that
arises from or is based on any untrue or alleged untrue statement contained in,
or any omission or alleged omission from, any preliminary prospectus will not
inure to the benefit of any Selling Holder or underwriter or its Related Parties
if it is determined that (i) a copy of the prospectus used to confirm the sale
of shares of Registrable Common to the Person asserting that claim was not sent
or given to that Person at or prior to the written confirmation of that sale,
(ii) the untrue statement or alleged untrue statement or the omission or alleged
omission was corrected by that prospectus and (iii) it was the responsibility of
that Selling Holder or that underwriter (or any dealer acquiring those shares
directly or indirectly from that underwriter) to send or give that prospectus to
that Person.
(b) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each Person claiming
indemnification from USC pursuant to this Section 10 (an "Indemnified Party")
will, promptly after that Indemnified Party becomes aware of any assertion or
commencement of any action or proceeding against that Indemnified Party in
respect of which indemnity may be sought from USC (a "Proceeding"), promptly
notify USC in writing of the Proceeding; provided, that an Indemnified Party's
failure to so notify USC will not relieve USC from any liability it may have to
that Indemnified Party otherwise than pursuant to the provisions of this Section
10. If any Proceeding is brought against any Indemnified Party and that
Indemnified Party duly notifies USC thereof: (i) USC will have the right, at its
expense, to assume the defense thereof, including the employment of counsel; and
(ii) the Indemnified Party will have the right to employ separate counsel in the
Proceeding and participate in the defense thereof, but the Indemnified Party
will pay the fees and expenses of that separate counsel unless (A) USC has
agreed in writing to pay those fees and expenses or (B) the named parties to the
Proceeding (including any impleaded parties) include both the Indemnified Party
and USC, and counsel advises the Indemnified Party in writing that one or more
legal defenses may be available to the Indemnified Party which is or are
different from or additional to those available to USC (in which case, if the
Indemnified Party notifies USC in writing that the Indemnified Party elects to
employ separate counsel at the expense of USC, USC will not have the right to
assume the defense of the Proceeding on behalf of the Indemnified Party; it
being understood, however, that USC will not, in connection with any one
Proceeding or separate but
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substantially similar or related Proceedings in the same jurisdiction and
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate law firm (together with appropriate
local counsel) at any time for all Indemnified Parties). USC will not be liable
for any settlement of any Proceeding which any Indemnified Party effects without
USC's written consent.
(c) INDEMNIFICATION BY SELLING HOLDERS. Each Selling Holder will, to
the extent applicable law permits, indemnify USC and each of its Related Parties
against, and hold each of those Persons harmless from and in respect of, Claims
to the same extent as the indemnity from USC to that Selling Holder in Section
10(a), but only with respect to information that is furnished by or on behalf of
that Selling Holder expressly for use in a Sellers' Registration Statement or
any prospectus (including any preliminary prospectus) forming a part thereof, or
any amendment thereof or supplement thereto. If any action or proceeding is
brought against USC or any of its Related Parties in respect of which any of
those Persons may seek indemnity from a Selling Holder pursuant to this Section
10(c), that Selling Holder will have the rights and duties given to USC, and
each of those Persons will have the rights and duties given to that Selling
Holder and that Selling Holder's Related Parties, by Section 10(b). Each Selling
Holder also will, to the extent applicable law permits, indemnify and hold
harmless the underwriters of the shares of Registrable Common offered by that
Selling Holder on substantially the same basis on which USC will indemnify and
hold harmless those Persons pursuant to Section 10(a).
(d) CONTRIBUTION. If the indemnification this Section 10 provides
for is unavailable to any party intended to be indemnified pursuant to this
Section 10 in respect of any Claims referred to herein, the parties who would
have indemnified that party in the contemplation of this Section 10 will, in
lieu of providing that indemnification, contribute to the amount paid or payable
by that party as a result of those Claims, as follows:
(i) as between USC and the Selling Holders, on the one hand, and the
underwriters of shares of Registrable Common, on the other hand, (A) in
such proportion as is appropriate to reflect the relative benefits
received by USC and the Selling Holders and by those underwriters from the
offering of those shares or, if that allocation is not permitted by
applicable law, (B) in such proportion as is appropriate to reflect not
only those relative benefits, but also the relative faults of USC and the
Selling Holders and of those underwriters in connection with the
statements or omissions that resulted in those Claims, as well as any
other relevant equitable considerations; and
(ii) as between USC, on the one hand, and each Selling Holder, on
the other hand, in such proportion as is appropriate to reflect the
relative faults of USC and of that Selling Holder in connection with those
statements or omissions, as well as any other relevant equitable
considerations.
The relative benefits received by USC and the Selling Holders, on the one hand,
and the underwriters participating in the underwritten offering of shares of
Registrable Common, on the other hand, will
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be deemed to be in the same proportion as the total proceeds from that offering
(including shares of Common Stock, if any, being offered by USC), net of
underwriting discounts and commissions, but before deducting expenses, bear to
the total amount of underwriting discounts and commissions received by those
underwriters in that offering, while (i) relative faults of USC and the Selling
Holders and of those underwriters will be determined by reference to, among
other facts, whether the statements or omissions that resulted in the Claims in
respect of which contribution is being made are or relate to information
supplied by USC and the Selling Holders or by those underwriters and (ii) the
relative faults of USC and of the Selling Holders will be determined by
reference to, among other facts, (A) whether those statements or omissions are
or relate to information supplied by USC or by the Selling Holders and (B) those
Persons' relative intent, knowledge, access to information and opportunity to
correct those statements or omissions or prevent them from being made. USC and
the Selling Holders agree it would not be just or equitable if contribution
pursuant to this Section 10(d) were to be determined by pro rata allocation
(even if the underwriters, if any, were to be treated as one entity for this
purpose) or by any other allocation method that does not take into account the
equitable considerations referred to in this Section 10(d).
(e) LIMITATIONS ON CONTRIBUTION. No underwriter will be required to
contribute to USC or the Selling Holders, pursuant to Section 10(d) or
otherwise, any amount in excess of the amount by which (i) the total price at
which the shares of Registrable Common underwritten by it and distributed to the
public were offered to the public exceeds (ii) the amount of any damages it
otherwise has been required to pay by reason of the statements or omissions that
resulted in the Claims in respect of which contribution is being made, and no
Selling Holder will be required to contribute to USC or any underwriter,
pursuant to Section 10(d) or otherwise, any amount in excess of the amount by
which (i) the total price at which that Selling Holder's shares of Registrable
Common were offered to the public exceeds (ii) the amount of any damages that
Selling Holder otherwise has been required to pay by reason of those statements
or omissions. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation. If
indemnification is available under this Section 10, the indemnifying parties
will indemnify each indemnified party to the full extent Sections 10(a) and (c)
provide without regard to the relative fault of any Person or any other
equitable consideration referred to in Section 10(d).
Section 11. MISCELLANEOUS. (a) AMENDMENTS AND WAIVERS. Except as
otherwise provided herein, the provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless USC has obtained the written consent
of Holders of at least 51% of the shares of Registrable Common then outstanding.
(b) NOTICES. All notices and other communications provided for or
permitted 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 Houston, Texas business day next
following the day
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when placed in the mail, postage prepaid, certified or registered, addressed to
the appropriate party or parties at the address of that party set forth or
referred to below (or at such other address as that party may designate by
written notice to each other party in accordance herewith):
(A) if to a Holder, at the most current address given by that Holder
to USC in a writing making specific reference to this Agreement, with a
copy (which will not constitute notice for purposes of this Agreement) to
such legal counsel, if any, as that Holder may designate in that writing;
and
(B) if to USC, at the following address:
U.S. Concrete, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx ____
Xxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Telecopy: (713) ________
with copies to: Xxxxx & Xxxxx, L.L.P.
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxx X. Paris, Esq.
Telecopy: (000) 000-0000
(c) SUCCESSORS AND ASSIGNS. This Agreement will inure to the benefit
of and be binding on the heirs, executors, administrators, successors and
assigns of each of the parties hereto.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same agreement.
(e) HEADINGS AND REFERENCES. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the meaning
hereof. References herein to "Sections" are to Sections of this Agreement unless
otherwise indicated.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY WITHIN THAT STATE.
(g) SEVERABILITY. If any one or more of the provisions herein, or
the application thereof in any circumstances, is invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of that provision in every other respect and of the remaining
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provisions contained herein will not be in any way impaired thereby, it being
intended by each party hereto that all the rights and privileges of all parties
hereto will be enforceable to the fullest extent permitted by law.
(h) ENTIRE AGREEMENT; TERMINATION. The parties hereto intend that
this Agreement will be considered for all purposes as the final expression, and
a complete and exclusive statement, of their mutual agreement and understanding
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties to this Agreement with
respect to that subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
U.S. CONCRETE, INC.
By: _____________________________________
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
HOLDERS:
MAIN STREET MERCHANT PARTNERS II, L.P.
By: _____________________________________
Name: _______________________________
Title: ______________________________
AMERICAN READY MIX, L.L.C.
By:______________________________________
Name: _______________________________
Title: ______________________________
_________________________________________
Xxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxx
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_________________________________________
Xxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxxxx X. Xxxxxxxx
_________________________________________
Xxxxxxxx X. Xxxxxxxx
_________________________________________
Xxxxx X. Xxxxxx, trustee of the Xxxxx X.
Xxxxxx Revocable Trust
_________________________________________
Xxxxx X. Xxxxxxx, trustee of the CSS 1998
GRAT
_________________________________________
Xxxxx X. XxXxxx, independent trustee of the
CSS 1998 GRAT
_________________________________________
Xxxx X. Xxxxxxx, trustee of the MSS 1998
GRAT
_________________________________________
Xxxxx X. XxXxxx, independent trustee of the
MSS 1998 GRAT
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_________________________________________
Xxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxxx X. Xxxxxxx
_________________________________________
Xxxxxx Xxxxx
_________________________________________
Xxxx X. Xxxxxxxx
_________________________________________
Xxxxxx Xxxxxxxxxxx
_________________________________________
Xxxx Xxxxxxxx
_________________________________________
Xxxxxxx Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxxxxx
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