RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit
10.6
U.S.
CONCRETE, INC.
This Award Agreement (this “Agreement”)
is made as of _______________, 20__, by and between U.S. Concrete, Inc., a
Delaware corporation (the “Company”), and __________ (“Grantee”). For
value received, the Company hereby grants to Grantee, pursuant to the provisions
of the U.S. Concrete, Inc. Management Equity Incentive Plan (the “Plan”), a
restricted stock unit award for ________ units (the “RSUs”) and an incentive
restricted stock unit award for ________ units (the “Incentive RSUs”)
(collectively, this “Award”), effective as of _____________, 20__ (the “Grant
Date”), subject to the terms and conditions set forth herein and in the
Plan. Unless otherwise defined in this Agreement, capitalized terms
used in this Agreement shall have the meanings assigned to them in the
Plan.
TERMS AND
CONDITIONS OF AWARD
1. EFFECT
OF THE PLAN. The Award granted to Grantee is subject to all the
provisions of the Plan and of this Agreement, together with all rules and
determinations from time to time issued by the Committee and by the Board
pursuant to the Plan. The Company hereby reserves the right to amend,
modify, restate, supplement or terminate the Plan without the consent of
Grantee, so long as such amendment, modification, restatement or supplement
shall not materially reduce the rights and benefits available to Grantee
hereunder, and this Award shall be subject, without further action by the
Company or Grantee, to such amendment, modification, restatement or
supplement. In the event of any conflict between the terms and
conditions of this Agreement and the terms and conditions of the Plan, the terms
and conditions of the Plan shall control.
2. GRANT. This
Agreement shall evidence the grant of the RSUs and Incentive RSUs to Grantee,
and Grantee acknowledges that Grantee will not receive shares of Common Stock in
respect of the RSUs or Incentive RSUs unless and until the RSUs and Incentive
RSUs vest as provided in this Award and all tax withholding obligations
applicable to the “Vested RSUs” (as defined below) and “Vested Incentive RSUs”
(as defined below) have been satisfied. This Award constitutes a
Stock Award under, and this Agreement will be deemed for all purposes to
constitute an Award Agreement entered into pursuant to, the Plan, which hereby
is incorporated in this Agreement by this reference. Grantee agrees
that the Award shall be subject to all of the terms and conditions set forth in
this Agreement and the Plan, including, but not limited to, the forfeiture
conditions set forth in Section 3.2 hereof, the restrictions on transfer set
forth in Section 3.5 hereof and the satisfaction of any applicable tax
withholding obligation as set forth in Section 5 hereof.
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3. RSUs
AND INCENTIVE RSUs.
3.1 VESTING. Subject
to the terms and conditions of this Agreement and the Plan, the RSUs will become
vested as to one-twelfth (1/12) of the shares subject hereto on each of the
first twelve quarterly anniversaries of the Grant Date (each, a “Vesting Date”),
subject to Grantee’s continued service or employment with the Company or its
Subsidiaries on each applicable Vesting Date. There shall be no
proportionate or partial vesting in the periods prior to each Vesting Date and
all vesting shall occur only on the appropriate Vesting Date, subject to
Grantee’s continued service or employment with the Company or its Subsidiaries
on each applicable Vesting Date. RSUs that have vested pursuant to
this Award are referred to herein as “Vested RSUs,” and RSUs that have not yet
vested pursuant to this Award are referred to herein as “Unvested
RSUs.” Notwithstanding the foregoing and subject to any additional
benefits that may be provided under any applicable executive severance agreement
by and between Grantee and the Company in effect on the date hereof (any such
agreement, as may be amended from time to time, is referred to herein as the
“Executive Severance
Agreement”), upon a termination of Grantee’s service or employment by the
Company or its Subsidiaries without Cause, any portion of the RSUs that would
have become vested during the six (6)-month period following such termination
shall become immediately vested as of the date of such termination.
If an
installment of the vesting would result in a fractional Vested RSU, that
installment will be rounded to the next higher or lower RSU by rounding-down for
fractions less than one-half and rounding-up for fractions equal to or greater
than one-half, except for the final installment, which will be for the balance
of the RSUs.
3.2 FORFEITURE. Except
as provided otherwise in the Executive Severance Agreement, and subject to
Section 3.1 hereof and to the Committee’s discretion to otherwise accelerate
vesting hereunder in accordance with the Plan, all Unvested RSUs shall be
immediately forfeited and cancelled upon termination of Grantee’s service or
employment with the Company and its Subsidiaries for any reason.
3.3 DELIVERY
OF SHARES.
i General. Subject
to the provisions of Section 3.3(ii) hereof, within thirty (30) days following
the vesting of the RSUs, Grantee shall receive the number of shares of Common
Stock that correspond to the number of RSUs that have become vested on the
applicable Vesting Date.
ii Deferrals. If
permitted by the Company, Grantee may elect, subject to the terms and conditions
of the Plan and any other applicable written plan or procedure adopted by the
Company from time to time for purposes of such election, to defer the
distribution of all or any portion of the shares of Common Stock that would
otherwise be distributed to Grantee hereunder (the “Deferred Shares”),
consistent with the requirements of Code Section 409A. Upon the
vesting of RSUs that have been so deferred, the applicable number of Deferred
Shares shall be credited to a bookkeeping account established on Grantee’s
behalf (the “Account”). Subject to Section 4 hereof, the number of
shares of Common Stock equal to the number of Deferred Shares credited to
Grantee’s Account shall be distributed to Grantee in accordance with the terms
and conditions of the Plan and the other applicable written plans or procedures
of the Company, consistent with the requirements of Code Section
409A.
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3.4 INCENTIVE
RSUs. With respect to each RSU awarded to Grantee under this
Agreement, Grantee will receive one Incentive RSU which shall entitle Grantee to
receive a payment equal to 0.35020 of a share of Common Stock to be delivered
within thirty (30) days following the later of the date on which (i) the related
RSU vests, or (ii) the Performance Goal is achieved. Each Incentive
RSU will vest on the same schedule as the related RSU and shall be immediately
forfeited and cancelled if such RSU is forfeited and cancelled for any
reason. Incentive RSUs that have vested pursuant to this Award are
referred to herein as “Vested Incentive RSUs,” and RSUs that have not yet vested
pursuant to this Award are referred to herein as “Unvested Incentive
RSUs.” For purposes of the foregoing, the “Performance Goal” shall be
deemed to have been achieved on the earlier of (a) the conversion on a
cumulative basis of 95% of the 9.5% Convertible Secured Notes due 2015 of the
Company issued pursuant to the Indenture dated August 31, 2010 between the
Company, U.S. Bank National Association, as Trustee and Noteholder Collateral
Agent, and the Guarantors named therein (the “Indenture”) or (b)
the date the Company delivers a Conversion Event Notice in accordance with the
terms of the Indenture. If the Performance Goal is not achieved prior to the
Maturity Date (as defined in the Indenture), each Incentive RSU will expire
without any payment being made with respect thereto.
3.5 NON-TRANSFERABILITY. This
Award may not be transferred, assigned, pledged or otherwise encumbered by
Grantee in any manner whatsoever, except that this Award may be transferred by
will or by the laws of descent and distribution or pursuant to a domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act of 1974, as amended, or the rules
thereunder. References to Grantee, to the extent relevant in
the context, shall include references to authorized
transferees. Except as otherwise determined by the Committee, Grantee
shall not sell, transfer, assign, pledge or otherwise encumber or dispose of, by
operation of law or otherwise, any portion of this Award. Any
transfer by Grantee in violation of the provisions hereof shall be void and of
no force or effect, and shall result in the immediate forfeiture of all Unvested
RSUs and Unvested Incentive RSUs.
4. DIVIDENDS;
RIGHTS AS STOCKHOLDER. Cash dividends on shares of Common Stock
issuable hereunder shall be credited to a dividend book entry account on behalf
of Grantee with respect to each RSU granted to Grantee, provided that such cash
dividends shall not be deemed to be reinvested in shares of Common Stock and
shall be held uninvested and without interest and paid in cash at the same time
that the shares of Common Stock underlying the RSUs are delivered to Grantee in
accordance with the provisions hereof. Stock dividends on shares of
Common Stock shall be credited to a dividend book entry account on behalf of
Grantee with respect to each RSU granted to Grantee, provided that such stock
dividends shall be paid in shares of Common Stock at the same time that the
shares of Common Stock underlying the RSUs are delivered to Grantee in
accordance with the provisions hereof. To the extent that any
Unvested RSUs are forfeited and cancelled for any reason, all cash dividends and
stock dividends credited with respect thereto shall also be forfeited and
cancelled at such time. Except as otherwise provided herein, Grantee
shall have no rights as a stockholder with respect to any shares of Common Stock
covered by any RSU unless and until Grantee has become the holder of record of
such shares, and except as otherwise provided by the Plan, Grantee agrees and
understands that nothing contained in this Agreement provides, or is intended to
provide, Grantee with any protection against potential future dilution of
Grantee’s interest in the Company for any reason.
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5. TAX
MATTERS.
5.1 The
Company shall have the power and the right to deduct or withhold, or require
Grantee to remit to the Company, an amount sufficient to satisfy any applicable
federal, state, local and foreign taxes of any kind (including, but not limited
to, Grantee’s FICA and SDI obligations) which the Company, in its sole
discretion, deems necessary to be withheld or remitted to comply with the Code
and/or any other applicable law, rule or regulation with respect to the RSUs and
Incentive RSUs and, if Grantee fails to do so, the Company may otherwise refuse
to issue or transfer any shares of Common Stock otherwise required to be issued
pursuant to this Agreement. Any statutorily required withholding
obligation with regard to Grantee may be satisfied by reducing the amount of
cash or shares of Common Stock otherwise deliverable to Grantee
hereunder.
5.2 Grantee
acknowledges that the tax consequences associated with this Award are complex
and that the Company has urged Grantee to review with Grantee’s own tax advisors
the federal, state and local tax consequences of this Award. Grantee
is relying solely on such advisors and not on any statements or representations
of the Company or any of its Subsidiaries or any of their respective
agents. The Company does not guarantee any particular tax effect, and
Grantee shall be solely responsible and liable for the satisfaction of all
taxes, penalties and interest that may be imposed on or for the account of
Grantee in connection with this Award (including any taxes, penalties and
interest under Code Section 409A), and neither the Company nor any of its
Subsidiaries shall have any obligation to indemnify or otherwise hold Grantee
(or any authorized transferee or beneficiary) harmless from any or all of such
taxes, penalties or interest.
6. GOVERNING
LAW. This Award shall be construed, interpreted and enforced in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of laws provisions that would result in the application of
the laws of any other jurisdiction.
7. NO
RIGHT TO CONTINUED SERVICE. This Award shall not be construed as
giving Grantee any right to continued service or employment with the Company or
its Subsidiaries. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with Grantee, free from
any liability or claim under this Award or the Plan, except as expressly
provided in this Award.
8. NATURE
OF PAYMENTS. The Award hereunder shall constitute a special incentive
payment to Grantee and shall not be taken into account in computing the amount
of salary or compensation of Grantee for the purpose of determining any
retirement, death or other benefits under (a) any retirement, bonus, life
insurance or other employee benefit plan of the Company or (b) any agreement
between the Company and Grantee, except as such plan or agreement shall
otherwise expressly provide.
9. COMPLIANCE
WITH LAWS AND REGULATIONS. The issuance and transfer of the shares of
Common Stock hereunder will be subject to compliance by the Company and Grantee
with all applicable requirements of federal and state laws and with all
applicable requirements of any stock exchange on which the Common Stock may be
listed at the time of that issuance or transfer.
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10. NON-SOLICITATION
AND NON-DISCLOSURE. In consideration for the grant of the Award,
Grantee agrees that Grantee will not, during Grantee’s employment or service
with the Company or any of its Subsidiaries, and for one year thereafter,
directly or indirectly, for any reason, for Grantee’s 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 from the Company or any of
its Subsidiaries any customer, client or business relating to the provision of
ready-mixed concrete, precast concrete or related concrete products or
services. As further consideration for the grant of the Award,
Grantee agrees that Grantee will not at any time, either while employed by, or
providing services to, the Company or its Subsidiaries, or at any time
thereafter, make any independent use of, or disclose to any other person (except
as authorized in advance in writing by the Company) any confidential, nonpublic
and/or proprietary information of the Company and 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 its Subsidiaries. This Section 10 shall survive
termination of this Award.
11. BINDING
EFFECT. This Agreement shall be binding upon and inure to the benefit
of the Company and Grantee and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 3.4 of this Award.
12. SEVERABILITY. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable to
the extent permitted by applicable law.
13. AMENDMENT;
WAIVER; MISCELLANEOUS. The Committee shall have the right, in its
sole discretion, to modify or amend this Agreement from time to time in
accordance with and as provided in the Plan, and the Company shall give written
notice to Grantee of any such modification or amendment of this Agreement as
soon as practicable after the adoption thereof; provided, however, that if such
modification or amendment would adversely affect the rights of Grantee, the
Agreement may only be so modified or amended by a writing signed by both the
Company and Grantee. Any provision for the benefit of the Company
contained in this Agreement may be waived, either generally or in any particular
instance, by the Board or by the Committee. A waiver on one occasion
shall not be deemed to be a waiver of the same or any other breach on a future
occasion.
14. ENTIRE
AGREEMENT. This Agreement and the Plan embody the entire agreement of
the parties hereto with respect to the RSUs, Incentive RSUs and all other
matters contained herein.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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U.S.
CONCRETE, INC.
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By:
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Name:
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Title:
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Acceptance
Grantee
hereby acknowledges receipt of a copy of the Plan, represents that Grantee has
read and understands the terms and provisions of the Plan and this Agreement,
and accepts the Award, as of the date first written above, subject to all of the
terms and provisions of the Plan and this Agreement.
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Grantee
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Print
Name:
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Social
Security No.:
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