Exhibit 10.9
AGREEMENT
This Agreement dated as of April 5,
2005 (this “Agreement”) is made and entered into by and
between U.S. Concrete, Inc., a Delaware corporation (the
“Company”), and Michael W. Harlan
(“Employee”).
PRELIMINARY STATEMENT
The Company has granted to Employee
42,129 shares of common stock, par value $0.001 per share, of the
Company (the “Awarded Shares”) pursuant to the award
agreement attached hereto as Exhibit A (the “Award
Agreement”), which was authorized and approved by the
Compensation Committee of the Board of Directors of the Company
(the “Committee”). The Awarded Shares were not awarded
pursuant to any plan that has heretofore been approved by the
stockholders of the Company.
The premises on which the Company
granted Employee the Awarded Shares were based on an administrative
oversight in that the number of Awarded Shares, taken together with
similar awards of shares to other employees of the Company (all
such awards of shares and the Awarded Shares, collectively, the
“Shares Subject to Ratification”) exceeded the maximum
number of shares of Common Stock available for such awards pursuant
to the de minimis exception available under Nasdaq
Marketplace Rule 4350(i)(A), as in effect at the times such awards
were made.
At the 2005 annual meeting of
stockholders of the Company (the “2005 Annual
Meeting”), the Company will request that its stockholders
approve a proposal to ratify the awards and issuances of all the
Shares Subject to Ratification (the “Proposal”). The
Committee has indicated that, following the 2005 Annual Meeting, if
the stockholders approve the Proposal at the 2005 Annual Meeting,
the Committee currently intends to ratify the grant of the Shares
Subject to Ratification, including the Awarded Shares, and any and
all associated award agreements (such Committee action, the
“Ratification”).
The parties hereto have concluded
that it is in their respective best interests that: (1) pending the
stockholder vote on the Proposal at the 2005 Annual Meeting,
Employee will enter into the lockup arrangements and other
restrictions this Agreement provides; and (2) if the stockholders
of the Company do not approve the Proposal at the 2005 Annual
Meeting, (a) the Award Agreement will be rescinded by this
Agreement, effective as of the adjournment of the 2005 Annual
Meeting, and (b) Employee will return to the Company, and the
Company will cancel, all the Awarded Shares.
NOW, THEREFORE, in consideration of
the premises and agreements this Agreement contains and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby,
the undersigned hereby agree as follows:
1. Lockup Agreement and Other
Restrictions and Limitations . Until the occurrence of both the
requisite stockholder vote approving the Proposal at the 2005
Annual Meeting (in accordance with the Company’s Bylaws, as
currently in effect) and the Ratification, Employee: (a) will not,
directly or indirectly, (i) offer for sale, sell, pledge or
otherwise dispose of (or enter
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into any transaction or device that is designed
to, or could be expected to, result in the disposition by any
person at any time in the future of) any of the Awarded Shares or
(ii) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of the Awarded Shares, whether any
such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or other securities, in cash or
otherwise; (b) will not be entitled to vote any of the Awarded
Shares on any matter that may be submitted to a vote of the
Company’s stockholders; and (c) will not be entitled to
receive any dividends on, or any distribution with respect to, any
of the Awarded Shares. In furtherance of the foregoing, the Company
and its transfer agent, American Stock Transfer & Trust
Company, are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach
of this Section 1. Employee hereby irrevocably authorizes the
Company to direct American Stock Transfer & Trust Company to
make or cause to be effected appropriate book entries to return the
Awarded Shares to the Company under Section 2 hereof.
2. Rescission of Awards; Return
of the Awarded Shares . If the Company does not receive the
requisite stockholder vote to approve the Proposal at the 2005
Annual Meeting (in accordance with the Company’s Bylaws, as
currently in effect), then, effective as of the adjournment of the
2005 Annual Meeting: (a) the awards of the Awarded Shares will be
rescinded; (b) the issuance of the Awarded Shares will be rescinded
and the Awarded Shares will cease to be outstanding for any and all
purposes; and (c) at the direction of the Company, American Stock
Transfer & Trust Company will make the book entries necessary
to reflect the rescission of the issuance of the Awarded Shares. If
the award and issuance of the Awarded Shares are rescinded as
provided in the first sentence of this Section 2, then the Company,
through the Committee, intends to provide other compensation to the
Participant to replace the Awarded Shares.
3. Releases . Employee (a)
permanently waives any rights he may have under any Award Agreement
or any other agreement relating to the Awarded Shares and (b)
unconditionally and irrevocably releases and forever discharges, to
the fullest extent permitted by applicable law, the Company and
each of its officers, directors, employees, agents, affiliates,
representatives and counsel (collectively, the “Released
Parties”) from any and all debts, liabilities, obligations,
claims, demands, actions or causes of action, suits, judgments or
controversies of any kind whatsoever (collectively,
“Claims”) against the Released Parties, or any of them,
that arise out of or are based on any act or failure to act
(including any act or failure to act that constitutes ordinary
or gross negligence or reckless or willful, wanton misconduct)
, misrepresentation, omission, transaction, fact, event or other
matter relating to the original grant of any of the Awarded Shares
(including any inducement to remain in the employment of the
Company or any of its subsidiaries), the rescission of the award of
the Awarded Shares, or any past, present or future breach or
alleged breach of the Award Agreement (whether based on any right
of action at law or in equity or otherwise, foreseen or unforeseen,
matured or unmatured, known or unknown, accrued or not accrued).
Employee further agrees not to file or bring any litigation or
institute any other proceeding before any court or other
governmental authority or arbitrator on the basis of or respecting
any Claim concerning any of the foregoing matters against any
Released Party.
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4. Representations and Warranties
of Employee . Employee represents and warrants to the Company
as follows:
(a) Authority . Employee has
the legal capacity and all requisite power and authority to enter
into this Agreement and to consummate the agreements and release
contemplated hereby. Employee: (i) acknowledges that he fully
comprehends and understands all the terms of this Agreement and
their legal effects; and (ii) expressly represents and warrants
that (A) he has executed this Agreement voluntarily and without
reliance on any statement or representation of the Company or any
of its representatives and (B) he had the opportunity to consult
with an attorney of his choice regarding this Agreement.
(b) Enforceability . This
Agreement has been executed and delivered by Employee and
constitutes his legal, valid and binding obligation, enforceable
against him in accordance with the terms hereof, except as that
enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
transfer or other similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether
that enforceability is considered in a proceeding at law or in
equity).
5. Entire Agreement; Successors
and Assigns; Amendments and Waivers . This Agreement is
intended by the parties hereto as a final expr
