Contract
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U.S. CONCRETE, INC.
LONG TERM INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
(Employee Form)
This Agreement is made and entered into effective as of [Insert Date of Grant] (the “Date
of Grant”) by and between U.S. Concrete, Inc., a Delaware corporation (the “Company”) and
you, [Insert Name of Participant].
WHEREAS, the Company, in order to induce you to enter into and to continue and
dedicate service to the Company and to materially contribute to the success of the Company,
agrees to grant you this Restricted Stock Award;
WHEREAS, the Company adopted the U.S. Concrete, Inc. Long Term Incentive Plan, as
it may be amended from time to time (the “Plan”) under which the Company is authorized to
grant Restricted Stock Awards to certain employees and service providers of the Company;
WHEREAS, a copy of the Plan has been furnished to you and shall be deemed a part of
this Restricted Stock Award agreement (“Agreement”) as if fully set forth herein and the terms
capitalized but not defined herein shall have the meanings set forth in the Plan; and
WHEREAS, you desire to accept the Restricted Stock Award made pursuant to this
Agreement.
NOW, THEREFORE, in consideration of and mutual covenants set forth herein and for
other valuable consideration hereinafter set forth, the parties agree as follows:
1. The Grant. Subject to the conditions set forth below, the Company hereby grants
you, effective as of the Date of Grant, as a matter of separate inducement but not in lieu of any
salary or other compensation for your services for the Company, an award consisting of
[_______] shares of Restricted Stock (the “Award”) in accordance with the terms and conditions
set forth herein and in the Plan.
2. Escrow of Restricted Stock. The Company shall evidence the shares of Restricted
Stock in the manner that it deems appropriate, including, without limitation, in book entry form
or certificate form. The Company may issue in your name a certificate or certificates
representing the shares of Restricted Stock and retain that certificate or those certificates until the
restrictions on such shares of Restricted Stock expire as contemplated in Section 5 or Section 6
of this Agreement, as applicable, or the shares of Restricted Stock are forfeited as described in
Sections 4 and 6 of this Agreement. If the Company certificates the Restricted Stock, you shall
execute one or more stock powers in blank for those certificates and deliver those stock powers
to the Company. The Company shall hold the Restricted Stock and the related stock powers
pursuant to the terms of this Agreement, if applicable, until such time as (a) a certificate or
certificates for the shares of Restricted Stock are delivered to you, (b) the shares of Restricted
Stock are otherwise transferred to you free of restrictions, or (c) the shares of Restricted Stock
are canceled and forfeited pursuant to this Agreement.
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3. Ownership of Restricted Stock. From and after the time the shares of Restricted
Stock are issued in your name, unless and until such shares are forfeited pursuant to the terms of
this Agreement, you will be the record owner of such shares and, as such, be entitled to all the
rights of ownership of the Restricted Stock, other than as expressly provided for herein,
including the right to vote those shares and to receive dividends thereon if, as, and when declared
by the Board, subject, however, to the terms, conditions and restrictions set forth in this
Agreement; provided, however, that any dividends that are payable with respect to the Restricted
Stock shall be withheld and subject to the same vesting criteria and other restrictions as the
underlying shares of Restricted Stock and shall be paid to you (without interest) at such time as
the Restricted Stock vests and any restrictions thereon lapse in accordance with the terms and
conditions of this Agreement (but in no event later than the sixtieth (60th) day thereafter). In the
event that you forfeit the Restricted Stock, you shall have no further rights with respect to such
Restricted Stock or any dividends payable thereon; provided, however, that such a forfeiture
shall not invalidate any votes that you have given during the time that you held the Restricted
Stock.
4. Restrictions; Forfeiture. The shares of Restricted Stock are restricted in that they
may not be sold, transferred, pledged or otherwise encumbered, alienated or hypothecated by you
in any manner whatsoever until these restrictions are removed or expire as contemplated in
Section 5 or Section 6 of this Agreement, as applicable, except that this Award may be
transferred in accordance with the Plan, by will or by the laws of descent and distribution, or
pursuant to a domestic relations order as defined in the Code or in Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder. Any such transfer
or attempt to transfer in violation of this Section 4 of the Plan shall be void and of no force or
effect, and shall result in the immediate forfeiture of any unvested Restricted Stock granted
pursuant to this Agreement. The shares of Restricted Stock are also restricted in the sense that
they may be forfeited to the Company (the “Forfeiture Restrictions”). You hereby agree that if
the Restricted Stock is forfeited, as provided in Section 5 of Section 6, the Company shall have
the right to deliver the Restricted Stock to the Company’s transfer agent for, at the Company’s
election, cancellation or transfer to the Company. The Company shall have the full right to
cancel any evidence of your ownership of forfeited Restricted Stock or to take any other action
necessary to demonstrate that you no longer own the forfeited Restricted Stock. Following such
forfeiture, you shall have no further rights with respect to such forfeited Restricted Stock. By
acceptance of this Award, you irrevocably grant the Company a power of attorney to transfer any
forfeited unvested Restricted Stock and you agree to execute any documents requested by the
Company in connection with such forfeiture and transfer. The provisions of this Award
regarding the forfeiture and transfer of forfeited Restricted Stock shall be specifically
performable by the Company in any court of equity or law.
5. Expiration of Restrictions and Risk of Forfeiture. Except as provided otherwise
in Section 6, the restrictions on the Restricted Stock granted pursuant to this Agreement will
expire and the Restricted Stock will become vested, transferable and non-forfeitable, provided
that you remain in the employ of, or a service provider to, the Company or any of its Subsidiaries
through and including each of the applicable dates set forth below in Sections 5(a) and 5(b)
(each, a “Vesting Date”):
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(a) Time-Based Restricted Stock. Sixty percent (60%) of the total number of
shares of Restricted Stock subject to the Award shall vest based upon the passage of time (the
“Time-Based Restricted Stock”) in accordance with the following schedule:
Portion of Time-Based
Restricted Stock to Vest
Vesting Dates
1/3 First Anniversary of Date of Grant
1/3 Second Anniversary of Date of Grant
1/3 Third Anniversary of Date of Grant
Total: 100% of Time-Based Restricted Stock
Notwithstanding the foregoing, if the number of shares of Time-Based Restricted Stock is
not evenly divisible by three, then no fractional shares shall vest and the installments shall be as
equal as possible with the smaller installments vesting first.
(b) Performance-Based Restricted Stock. The remaining forty percent (40%)
of the shares of Restricted Stock subject to the Award shall vest based upon the satisfaction of
performance criteria (the “Performance-Based Restricted Stock”). Fifty percent (50%) of the
shares of Performance-Based Restricted Stock (the “First Tranche”) shall vest on the day, if
any, that the average of the daily volume-weighted average share price of the Company’s Stock
on the Nasdaq or such other primary stock exchange on which the Stock is listed and traded over
any period of twenty (20) consecutive trading days equals or exceeds $[●] per share (the “First
Hurdle”) within the three (3) year period beginning on the Date of Grant (the “Performance
Period”). If the First Hurdle is not attained during the Performance Period, the shares subject to
the First Tranche shall become null and void and those shares of Restricted Stock shall be
forfeited to the Company without any payment to you. The remaining fifty percent (50%) of the
Performance-Based Restricted Stock (the “Second Tranche”) shall vest on the day, if any, that
the average of the daily volume-weighted average share price of the Company’s Stock on the
Nasdaq or such other primary stock exchange on which the Stock is listed and traded over any
period of twenty (20) consecutive trading days equals or exceeds $[●] per share (the “Second
Hurdle”) within the Performance Period. If the Second Hurdle is not attained during the
Performance Period, the shares subject to the Second Tranche shall become null and void and
those shares of Restricted Stock shall be forfeited to the Company without any payment to you.
Notwithstanding the foregoing, if an installment of the vesting of any shares of
Performance-Based Restricted Stock would result in a fractional share of Restricted Stock
becoming vested, that installment will be rounded to the next higher or lower share, as
determined by the Committee, except for the second installment, if any, which will be for the
balance of the Award.
6. Termination of Services and Change in Control.
(a) Termination Generally. Subject to Section 6(b), Section 6(c), or Section
6(d), as applicable, if your service relationship with the Company or any of its Subsidiaries
terminates for any reason, then those shares of Restricted Stock (both Time-Based Restricted
Stock and Performance-Based Restricted Stock) for which the restrictions have not lapsed as of
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the date of termination shall become null and void and those shares of Restricted Stock shall be
forfeited to the Company without any payment to you. The Restricted Stock for which the
restrictions have lapsed as of the date of such termination shall not be forfeited to the Company.
For purposes of clarity, if your service relationship is transferred between the Company and/or
any of its Subsidiaries, such a transfer shall not constitute a termination of the service
relationship unless the transfer would be deemed to be a “separation from service” pursuant to
the Nonqualified Deferred Compensation Rules, to the extent applicable.
(b) Death. In the event that your service relationship with the Company or any
of its Subsidiaries terminates due to your death, all Time-Based Restricted Stock that has not
already become vested pursuant to Section 5(a) of this Agreement shall immediately become
vested. For purposes of clarity, the termination of your service relationship due to your death will
not automatically vest your Performance-Based Restricted Stock.
(c) Change in Control. In the event of a Change in Control, all Restricted
Stock that has not already become vested pursuant to Section 5 of this Agreement and has not
previously been forfeited shall immediately become vested.
(d) Effect of Individual Agreement. Notwithstanding any provision herein to
the contrary, in the event of any inconsistency between Section 5 or Section 6 and any individual
employment, severance, change in control or other similar agreement entered into by and
between you and the Company, the terms of such other agreement shall control.
7. Leave of Absence. With respect to the Award, the Company may, in its sole
discretion, determine that if you are on leave of absence for any reason you will be considered to
still be in the employ of, or providing services for, the Company, provided that rights to the
Restricted Stock during a leave of absence will be limited to the extent to which those rights
were earned or vested when the leave of absence began.
8. Delivery of Stock. Promptly following the expiration of the restrictions on the
Restricted Stock as contemplated in Section 5 or Section 6 of this Agreement, the Company shall
cause to be issued and delivered to you or your designee a certificate or other evidence of the
number of shares of Restricted Stock as to which restrictions have lapsed, free of any restrictive
legend relating to the lapsed restrictions, upon receipt by the Company of any tax withholding as
may be requested pursuant to Section 9. The value of such Restricted Stock shall not bear any
interest owing to the passage of time.
9. Tax Issues.
(a) Payment of Taxes. The Company may require you to pay to the Company
(or the Company’s Subsidiary if you are an employee of a Subsidiary of the Company), an
amount the Company deems necessary to satisfy its (or its Subsidiary’s) current or future
obligation to withhold federal, state or local income or other taxes that you incur as a result of
the Award. With respect to any required tax withholding, you may (i) direct the Company to
withhold from the shares of Stock to be issued to you under this Agreement the number of shares
necessary to satisfy the Company’s obligation to withhold taxes; which determination will be
based on the shares’ Fair Market Value on the applicable Vesting Date; (ii) deliver to the
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Company shares of Stock sufficient to satisfy the Company’s tax withholding obligations, based
on the shares’ Fair Market Value on the applicable Vesting Date; (iii) deliver cash to the
Company sufficient to satisfy its tax withholding obligations; or (iv) satisfy such tax withholding
through any combination of clauses (i), (ii) and/or (iii). If you desire to elect to use the stock
withholding option described in subparagraph (i), you must make the election at the time and in
the manner the Company prescribes. The Company, in its discretion, may deny your request to
satisfy its tax withholding obligations using a method described under clause (i) or (ii). In the
event the Company determines that the aggregate Fair Market Value of the shares of Stock
withheld as payment of any tax withholding obligation is insufficient to discharge that tax
withholding obligation, then you must pay to the Company, in cash, the amount of that
deficiency immediately upon the Company’s request.
(b) Elections. By accepting this Award, you acknowledge that Section 83 of
the Code generally requires that the applicable portion of the Award be taxed to you as ordinary
income on each applicable Vesting Date. You also acknowledge that, provided that you are a
U.S. citizen, you may elect to be taxed at the Date of Grant rather than at the time the Restricted
Stock vests by filing an election under Section 83(b) of the Code with the Internal Revenue
Service and by providing a copy of the election to the Company. YOU ACKNOWLEDGE
THAT YOU HAVE BEEN INFORMED OF THE AVAILABILITY OF MAKING AN
ELECTION IN ACCORDANCE WITH SECTION 83(b) OF THE CODE; THAT SUCH
ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE (AND A COPY
OF THE ELECTION GIVEN TO THE COMPANY) WITHIN 30 DAYS OF THE DATE OF
GRANT OF THE RESTRICTED STOCK; AND THAT GRANTEE IS SOLELY
RESPONSIBLE FOR MAKING SUCH ELECTION. You further acknowledge that the tax
consequences associated with this Award are complex and that the Company has urged you to
review with your own tax advisors the federal, state and local tax consequences of this Award.
You are relying solely on such advisors and not on any statements or representations of the
Company or any of its agents.
10. Compliance with Securities Law. Notwithstanding any provision of this
Agreement to the contrary, the issuance of Stock (including Restricted Stock) will be subject to
compliance with all applicable requirements of federal, state, or foreign law with respect to such
securities and with the requirements of any stock exchange or market system upon which the
Stock may then be listed. No Stock will be issued hereunder if such issuance would constitute a
violation of any applicable federal, state, or foreign securities laws or other law or regulations or
the requirements of any stock exchange or market system upon which the Stock may then be
listed. In addition, Stock will not be issued hereunder unless (a) a registration statement under
the Securities Act, is, at the time of issuance, in effect with respect to the shares issued or (b) in
the opinion of legal counsel to the Company, the shares issued may be issued in accordance with
the terms of an applicable exemption from the registration requirements of the Securities Act.
The inability of the Company to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Company’s legal counsel to be necessary to the lawful issuance
and sale of any shares subject to the Award will relieve the Company of any liability in respect
of the failure to issue such shares as to which such requisite authority has not been obtained. As
a condition to any issuance hereunder, the Company may require you to satisfy any
qualifications that may be necessary or appropriate to evidence compliance with any applicable
law or regulation and to make any representation or warranty with respect to such compliance as
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may be requested by the Company. From time to time, the Board and appropriate officers of the
Company are authorized to take the actions necessary and appropriate to file required documents
with governmental authorities, stock exchanges, and other appropriate Persons to make shares of
Stock available for issuance.
11. Legends. The Company may at any time place legends referencing any
restrictions imposed on the shares pursuant to Section 4 or Section 10 of this Agreement on all
certificates representing shares issued with respect to this Award.
12. Right of the Company and Subsidiaries to Terminate Services. Nothing in this
Agreement confers upon you the right to continue in the employ of or performing services for the
Company or any of its Subsidiaries, or interfere in any way with the rights of the Company or
any of its Subsidiaries to terminate your employment or service relationship at any time.
13. Furnish Information. You agree to furnish to the Company all information
requested by the Company to enable it to comply with any reporting or other requirements
imposed upon the Company by or under any applicable statute or regulation.
14. Remedies. The parties to this Agreement shall be entitled to recover from each
other reasonable attorneys’ fees incurred in connection with the successful enforcement of the
terms and provisions of this Agreement whether by an action to enforce specific performance or
for damages for its breach or otherwise.
15. No Liability for Good Faith Determinations. The Company and the members of
the Board shall not be liable for any act, omission or determination taken or made in good faith
with respect to this Agreement or the Restricted Stock granted hereunder.
16. Execution of Receipts and Releases. Any payment of cash or any issuance or
transfer of shares of Stock or other property to you, or to your legal representative, heir, legatee
or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full
satisfaction of all claims of such Persons hereunder. The Company may require you or your legal
representative, heir, legatee or distributee, as a condition precedent to such payment or issuance,
to execute a release and receipt therefor in such form as it shall determine.
17. No Guarantee of Interests. The Board and the Company do not guarantee the
Stock of the Company from loss or depreciation.
18. Notice. All notices required or permitted under this Agreement must be in writing
and personally delivered or sent by mail and shall be deemed to be delivered on the date on
which it is actually received by the person to whom it is properly addressed or if earlier the date
it is sent via certified United States mail.
19. Waiver of Notice. Any Person entitled to notice hereunder may waive such notice
in writing.
20. Information Confidential. As partial consideration for the granting of the Award
hereunder, you hereby agree to keep confidential all information and knowledge, except that
which has been disclosed in any public filings required by law, that you have relating to the
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terms and conditions of this Agreement; provided, however, that such information may be
disclosed as required by law and may be given in confidence to your spouse and tax and
financial advisors. In the event any breach of this promise comes to the attention of the
Company, it shall take into consideration that breach in determining whether to recommend the
grant of any future similar award to you, as a factor weighing against the advisability of granting
any such future award to you.
21. Non-Solicitation and Non-Disclosure. In consideration for the grant of the
Award, you agree that you will not, during your service with the Company or any of its
Subsidiaries, and for one year thereafter, directly or indirectly, for any reason, for your own
account or on behalf of or together with any other Person (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 any of 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, your agree that you will not at any time, either while providing services
to, the Company or any of 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 or any of its
Subsidiaries, including, without limitation, information derived from reports, work in progress,
codes, marketing and sales programs, customer lists, records of customer service requirements,
cost summaries, pricing formulae, methods of doing business, ideas, materials or information
prepared or performed for, by or on behalf of the Company or any of its Subsidiaries.
Notwithstanding the foregoing, in accordance with the Defend Trade Secrets Act, 18 U.S.C. §
1833(b), and other applicable law, nothing in this Agreement or any other agreement or policy of
the Company or any of its Subsidiaries, shall prevent you from, or expose you to criminal or civil
liability under federal or state trade secret law for, (x) directly or indirectly sharing the
Company’s or any of its Subsidiaries’ trade secrets or other confidential, nonpublic and/or
proprietary information (except information protected by the Company’s or any of its
Subsidiaries’ attorney-client or work product privilege) with an attorney or with any federal,
state, or local government agencies, regulators, or officials, for the purpose of investigating or
reporting a suspected violation of law, whether in response to a subpoena or otherwise, without
notice to the Company or (y) disclosing trade secrets in a complaint or other document filed in
connection with a legal claim, provided that the filing is made under seal. This Section 21 shall
survive the termination of this Award.
22. Securities Laws or Xxxx-Xxxxx Clawback Policies. This Agreement is subject to
any written clawback policies the Company, with the approval of the Board, may adopt. These
clawback policies may subject your rights and benefits under this Agreement to reduction,
cancellation, forfeiture or recoupment if certain specified events and wrongful conduct occur,
including, but not limited to, an accounting restatement due to the Company’s material
noncompliance with financial reporting regulations or other events and wrongful conduct
specified in any such clawback policies adopted by the Company, with the approval of the
Board, to conform to the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and
resulting rules issued by the Securities and Exchange Commission and that the Company
determines should apply to this Agreement.
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23. Company Records. Records of the Company or its Subsidiaries regarding your
period of service, termination of service and the reason(s) therefor, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Company to be incorrect.
24. Successors. This Agreement shall be binding upon you, your legal
representatives, heirs, legatees and distributees, and upon the Company, its successors and
assigns.
25. Severability. If any provision of this Agreement is held to be illegal or invalid for
any reason, the illegality or invalidity shall not affect the remaining provisions hereof, but such
provision shall be fully severable and this Agreement shall be construed and enforced as if the
illegal or invalid provision had never been included herein.
26. Company Action. Any action required of the Company shall be by resolution of
the Board or by a person or entity authorized to act by resolution of the Board.
27. Headings. The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of the provisions hereof.
28. Governing Law. All questions arising with respect to the provisions of this
Agreement shall be determined by application of the laws of Delaware without giving any effect
to any conflict of law provisions thereof, except to the extent Delaware state law is preempted by
federal law. The obligation of the Company to sell and deliver Stock hereunder is subject to
applicable laws and to the approval of any governmental authority required in connection with
the authorization, issuance, sale, or delivery of such Stock.
29. Amendment. This Agreement may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Board or the
Committee (i) to the extent permitted by the Plan or (ii) to the extent necessary to comply with
applicable laws and regulations or to conform the provisions of this Agreement to any changes
thereto. Except as provided in the preceding sentence, this Agreement cannot be modified,
altered or amended in any way that is adverse to you except by a written agreement signed by
both you and the Company.
30. The Plan. This Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan.
31. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties with respect to the terms and conditions of the Restricted Stock and
supersedes and cancels all prior written or oral commitments, arrangements or understandings
with respect thereto unless expressly provided for herein.
32. Code Section 409A. Notwithstanding anything herein to the contrary, this
Agreement is intended to be interpreted and applied so that the payments and benefits set forth
herein either shall be exempt from the requirements of Code Section 409A, or shall comply with
the requirements of Code Section 409A, and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted to be exempt from or in compliance with Code Section 409A. If
you notify the Company (with specificity as to the reason therefor) that you believe that any
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provision of this Agreement would cause you to incur any additional tax or interest under Code
Section 409A or the Company independently makes such determination, the Company may
reform such provision (or award of compensation or benefit) to attempt to comply with or be
exempt from Code Section 409A through good faith modifications to the minimum extent
reasonably appropriate. To the extent that any provision hereof is modified in order to comply
with Code Section 409A, such modification shall be made in good faith and shall, to the
maximum extent reasonably possible, maintain the original intent and economic benefit to you
and the Company without violating the provisions of Code Section 409A. Notwithstanding the
foregoing, none of the Company or its Affiliates or their respective employees, directors,
officers, agents, representatives, attorneys, equity holders, principals, members, managers,
partners or affiliates guarantees that this Agreement complies with, or is exempt from, the
requirements of Code Section 409A and none of the foregoing shall have any liability for the
failure of this Agreement to comply with, or be exempt from, such requirements.
33. Acceptance of Agreement. Notwithstanding anything herein to the contrary, in
order for this Award to become effective, you must (a) execute this Agreement and (b) deliver
such executed signature page to Stock Plan Administration at 000 X. Xxxx Xxxxxx, Xxxxxx, Xxxxx,
00000, Attention Xxxx Xxxxxxx, in each case, no later than the sixtieth (60th) day following the
Date of Grant (the “Final Acceptance Date”). If you do not satisfy the foregoing conditions by
the Final Acceptance Date, then the entire Award will be forfeited and cancelled without any
consideration therefor, except as may otherwise be determined by the Committee in its sole and
absolute discretion.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
U.S. CONCRETE, INC.
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
___________________________________
[NAME]