Unassociated Document
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of Report (Date of earliest event reported) August 5, 2010
U.S.
CONCRETE, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-34530
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76-0586680
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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2925
Briarpark, Suite 1050, Houston, Texas 77042
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (713) 499-6200
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 Entry into a Material Definitive Agreement.
On August
5, 2010, U.S. Concrete, Inc. (the “Company”) entered into a Redemption Agreement
(the “Redemption Agreement”) with Kurtz Gravel Company, Superior Holdings, Inc.
(f/k/a Superior Redi-Mix, Inc.), BWB, Inc. of Michigan, Builders’ Redi-Mix, LLC,
and USC Michigan, Inc. (collectively, the “Joint Venture Partners”), Superior
Materials Holding, LLC (“Superior”) and Edw. C. Levy Co.
(“Levy”). Levy and the Joint Venture Partners are members of Superior
and each hold “Shares” of Superior, as defined in the Operating Agreement, dated
April 1, 2007 (the “Operating Agreement”), among Levy, the Joint Venture
Partners and Superior. Superior will redeem all of the Joint Venture
Partners’ Shares pursuant to the Redemption Agreement, subject to the
satisfaction of the conditions described below (the “Redemption”).
As
consideration for the Redemption, Superior and Levy (the “Indemnifying Parties”)
have agreed to indemnify the Company and the Joint Venture Partners from and
against all “Adverse Consequences” (as defined in the Redemption Agreement)
arising out of, or relating to or resulting from any of the following: (i) facts
or circumstances that occur on or after the closing of the Redemption (the
“Closing”) and which relate to the post-closing ownership or operation of
Superior; (ii) the Agreement Approving Asset Sale with Central States, Southeast
Areas Pension Fund, dated March 30, 2007; (iii) the Company’s obligation to
provide retiree medical coverage to current and former Clawson employees of
Superior and its affiliates pursuant to the collective bargaining agreement
between Superior and the Teamer’s Local Union No. 614; and (iv) Superior’s
anticipated issuance of 500 Shares to a third party (the “New Joint Venture
Partner”) prior to the consummation of the Redemption (the “Issuance”); provided
that the New Joint Venture Partner shall execute a joinder agreement to the
Redemption Agreement pursuant to which the New Joint Venture Partner shall
become a party to the Redemption Agreement and become subject to the
indemnification obligations thereunder, as an Indemnifying Party. The
parties to the Redemption Agreement have also agreed to terminate, amend or
assign certain agreements in connection with the Closing, including but not
limited to the Guaranty made as of April 1, 2007 by the Company in favor of
Superior and Levy in connection with the Contribution Agreement, dated as of
March 26, 2007, by and among Levy, the Joint Venture Partners and
Superior.
Under the
terms of the Redemption Agreement, Levy shall have until 12:00 p.m. midnight
Eastern Daylight Time on August 25, 2010 to exercise its rights under Section
5.4 of the Operating Agreement (“End Date”). If Levy does not
exercise its rights under Section 5.4 of the Operating Agreement on or before
the End Date, all such rights shall be terminated and of no further force or
effect as of the End Date.
The
Company and the Joint Venture Partners shall pay
$640,000 and issue a $1,500,000 promissory note, in the form attached to
the Redemption Agreement, to Superior at the Closing as partial consideration
for the indemnification and other consideration to be provided by the
Indemnifying Parties pursuant to the Redemption Agreement. The
Company and the Joint Venture Partners have also agreed, for a period of five
(5) years after the Closing, not to compete with Superior by, directly or
indirectly, engaging in, owning an interest in, making an investment in, or
becoming a creditor of, or providing any credit to, any business which
manufactures and delivers ready-mix concrete or produces and sells masonry block
and related concrete products (the “Business”) in the State of Michigan, subject
to certain exceptions.
The
parties to the Redemption Agreement have agreed to negotiate, during the period
commencing on the date of the Redemption Agreement (the “Execution Date”) and
ending on August 18, 2010 (as may be extended from time to time by the mutual
agreement of the parties, the “Negotiation End Date”), mutually acceptable forms
of amendments, assignments or terminations to the certain agreements relating to
Superior and the operation of the Business (such agreements, the “Ancillary
Agreements”). On the Negotiation End Date, the parties to the
Redemption Agreement shall execute a counterpart to the Redemption Agreement
(the “Supplement”) setting forth the agreed upon form of amendment, assignment
or termination with respect to each Ancillary Agreement (such forms, the “Final
Forms”). If the parties fail, on or prior to the Negotiation End
Date, to execute the Supplement or to agree upon a Final Form for each Ancillary
Agreement, any party to the Redemption Agreement may terminate the Redemption
Agreement by providing 10 days’ prior written notice to the other
parties.
During
the period commencing on the Execution Date and ending on August 16, 2010 (as
may be extended from time to time by the mutual agreement of the parties, the
“Due Diligence End Date”), the Company and the Joint Venture Partners will be
conducting due diligence on the financial condition and operations of Levy and
the New Joint Venture Partner, if applicable (the “Due Diligence Review”), based
on materials to be provided by Levy and the New Joint Venture
Partner. In the event that either the Company or any Joint Venture
Partner is dissatisfied, in its sole discretion, with the results of the Due
Diligence Review, the Company or any Joint Venture Partner may terminate the
Redemption Agreement by providing written notice to the other parties thereto by
12:00 p.m. midnight Eastern Daylight Time on the Due Diligence End
Date.
Superior’s
obligation to consummate the Redemption is subject to satisfaction of the
following conditions (unless waived by Levy in its sole discretion): (i)
consummation of the Issuance on terms satisfactory to Levy; provided, that if
such condition is not met or waived on or before the September 30, 2010 (the
“Issuance Deadline”), it shall no longer be applicable unless Levy has exercised
the related termination right or before the Issuance Deadline; and (ii) the
Company and each Joint Venture Partner, as applicable, shall have executed and
delivered to Levy counterparts to each Final Form to which it is a
party. The obligations of the Company and the Joint Venture
Partners to consummate the Redemption is subject to satisfaction of the
following conditions (unless waived by the Company in its sole discretion): (x)
the approval by the U.S. Bankruptcy Court of the entry by the Company into the
Redemption Agreement and the other agreements, amendments and documents
contemplated therein by August 20, 2010; provided, that the Company may not
waive this condition and (y) Levy, Superior and the New Joint Venture Partner,
as applicable, shall have executed and delivered to the Company counterparts to
each Final Form to which it is a party.
The
Redemption Agreement shall terminate upon the earlier of (i) September 30, 2010
if the Closing has not occurred by such date; (ii) such time as the Joint
Venture Partners or the Company notify Levy that a condition to the Closing has
become incapable of fulfillment; (iii) such time as Levy notifies the Company
and the Joint Venture Partners that a condition to the Closing has become
incapable of fulfillment; (iv) the delivery of a written notice by the Company
to Levy on or prior to the Due Diligence End Date that it is terminating the
Redemption Agreement in connection with the Due Diligence Review; (v) the
delivery of a written notice by the Company or Levy to the other parties to the
Redemption Agreement on or prior to the Negotiation End Date that it is
terminating the Redemption Agreement in connection with the negotiation of the
Final Forms and (vi) the delivery of a written notice by Levy to the
other parties to the Redemption Agreement on or prior to the Issuance Agreement
Deadline that it is terminating the Redemption Agreement.
Item
7.01 Regulation FD Disclosure.
On April
29, 2010, the Company and certain of its affiliates filed voluntary petitions in
the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy
Court”) seeking relief under the provisions of Chapter 11 of Title 11 of the
United States Code.
On August
4, 2010, the Company filed its Monthly Operating Report for June 2010 (“MOR”)
with the Bankruptcy Court. The MOR is available electronically on the
website of the Company's claims agent Epiq Bankruptcy Systems, LLC, at
http://dm.epiq11.com/USC under the link “Docket”.
Limitation
on Incorporation by Reference
In
accordance with General Instruction B.2 of Form 8−K, the information in this
Item 7.01 shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section, nor shall such information be deemed incorporated
by reference in any filing under the Securities Act of 1933, as amended, except
as shall be expressly set forth by specific reference in such a
filing.
Item
9.01 Financial Statements and Exhibits.
(c)
Exhibits
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Exhibit
No.
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Exhibit
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10.1
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Redemption
Agreement, dated August 5, 2010, among the Company, the Joint Venture
Partners and Levy.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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U.S. CONCRETE,
INC. |
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Date:
August 5, 2010
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By:
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/s/ Michael
W. Harlan |
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Michael
W. Harlan |
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President
and Chief Executive Officer |
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