Exhibit 10.1
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is
made as of________ ___, 200_ by and between U.S. Concrete, Inc., a
Delaware corporation (the “Company”), and
__________________ (“Indemnitee”).
PRELIMINARY STATEMENT
Highly
competent persons have become more reluctant to serve corporations
as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification
against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of
corporations.
The
Board of Directors of the Company (the “Board”) has
determined that, in order to attract and retain qualified
individuals, the Company will attempt to maintain on an ongoing
basis, at its sole expense, liability insurance to protect persons
serving the Company and its subsidiaries from certain
liabilities. Although the furnishing of that insurance has
been a customary and widespread practice among United States-based
corporations and other business enterprises, the Board believes
that, given current market conditions and trends, that insurance
may be available to it in the future only at higher premiums and
with more exclusions. At the same time, directors, officers
and other persons in service to corporations or business
enterprises increasingly are being subjected to expensive and
time-consuming litigation relating to, among other matters, matters
that traditionally would have been brought only against the
corporation or business enterprise itself. The
uncertainties relating to liability insurance and to
indemnification have increased the difficulty of attracting and
retaining those persons, and the Board has determined that (i) this
increased difficulty is detrimental to the best interests of the
Company’s stockholders and that the Company should act
to assure those persons that there will be increased certainty of
such protection in the future and (ii) it is reasonable, prudent
and necessary for the Company contractually to obligate itself to
indemnify those persons to the fullest extent applicable law
permits so that they will serve or continue to serve the Company
free from undue concern that they will not be so
indemnified.
The
Bylaws of the Company require indemnification of the officers and
directors of the Company. Indemnitee may also be entitled to
indemnification pursuant to the Delaware General Corporation Law
(“DGCL”). The Bylaws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification.
This
Agreement is a supplement to and in furtherance of the Bylaws of
the Company and any resolutions adopted pursuant thereto, and shall
not be deemed a substitute therefor, nor to diminish or abrogate
any rights of Indemnitee thereunder.
The
Indemnitee does not regard the protection available under the
Company’s Bylaws and insurance as adequate in the present
circumstances, and may not be willing to serve as an officer or
director without adequate protection, and the Company desires
Indemnitee to serve in such capacity. Indemnitee is willing
to serve, continue to serve and to take on additional service for
or on behalf of the Company on the condition that he be so
indemnified.
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NOW,
THEREFORE, in consideration of the premises and the covenants
herein, the parties to this Agreement agree as follows:
Section
1. Services by Indemnitee.
Indemnitee agrees to serve as a director and/or officer of
the Company and, as mutually agreed by Indemnitee and the Company,
as a director, officer, trustee, general partner, managing member,
employee, agent or fiduciary of other corporations, limited
liability companies, partnerships, joint ventures, trusts or other
enterprises (including, without limitation, employee benefit
plans)(each, an “Enterprise”). Indemnitee may at
any time and for any reason resign from any such position (subject
to any other contractual obligation or any obligation applicable
law imposes), in which event the Company will have no obligation
under this Agreement to continue Indemnitee in that position.
This Agreement is not and is not to be construed as an employment
contract between the Company (or any of its subsidiaries) and
Indemnitee. Indemnitee specifically acknowledges that
Indemnitee’s employment with the Company (or any of its
subsidiaries), if any, is at will, and the Indemnitee may be
discharged at any time for any reason, with or without cause,
except as may be otherwise provided in any written employment
contract between Indemnitee and the Company (or any of its
subsidiaries), other applicable formal severance policies duly
adopted by the Board or, with respect to service as a director of
the Company, by the Company’s Certificate of Incorporation,
Bylaws and the DGCL. The foregoing notwithstanding,
subject to Section 12, this Agreement will continue in force after
Indemnitee has ceased to serve as an officer or director of the
Company and no longer serves at the request of the Company as a
director, officer, employee, agent or fiduciary of any other
Enterprise.
Section
2.
Indemnification—General. The Company will
indemnify, and advance Expenses (as hereinafter defined) to,
Indemnitee (i) as this Agreement permits and (ii) (subject to the
provisions hereof) to the fullest extent applicable law in effect
on the date hereof and as amended from time to time permits.
The rights the preceding sentence provide to Indemnitee will
include, but will not be limited to, the rights the other Sections
hereof set forth.
Section
3. Proceedings Other Than by or in
the Right of the Company. Indemnitee will be entitled to
the rights of indemnification this Section 3 provides if, by reason
of his Corporate Status, he is, or is threatened to be made, a
party to or a participant in any threatened, pending or completed
Proceeding (as hereinafter defined), other than a Proceeding by or
in the right of the Company. Pursuant to this Section 3, the
Company will indemnify Indemnitee against, and will hold Indemnitee
harmless from and in respect of, all Expenses, judgments,
penalties, fines (including excise taxes) and amounts paid in
settlement (including all interest, assessments and other charges
paid or payable in connection with or in respect of those Expenses,
judgments, fines, penalties or amounts paid in settlement) actually
and reasonably incurred by him or on his behalf in connection with
that Proceeding or any claim, issue or matter therein, if he acted
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company and, with respect
to any criminal Proceeding, had no reasonable cause to believe his
conduct was unlawful.
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Section
4. Proceedings by or in the Right
of the Company. Indemnitee will be entitled to the
rights of indemnification this Section 4 provides if, by reason of
his Corporate Status, he is, or is threatened to be made, a
party to or a participant (as a witness or otherwise) in any
threatened, pending or completed Proceeding brought by or in the
right of the Company to procure a judgment in its favor.
Pursuant to this Section 4, the Company will indemnify Indemnitee
against, and will hold Indemnitee harmless from and in respect of,
all Expenses actually and reasonably incurred by him or on his
behalf in connection with that Proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company; provided, however, that no
indemnification against those Expenses will be made in respect of
any claim, issue or matter in that Proceeding as to which
Indemnitee has been adjudged to be liable to the Company unless and
to the extent that the Court of Chancery, or the court in which
that Proceeding has been brought or is pending, determines that
despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnification.
Section
5. Indemnification for Expenses of
a Party Who Is Wholly or Partly Successful.
Notwithstanding any other provision hereof, to the extent
that Indemnitee is, by reason of his Corporate Status, a party to
(or a participant in) and is successful, on the merits or
otherwise, in defense of any Proceeding, the Company will indemnify
him against all Expenses actually and reasonably incurred by him or
on his behalf in connection therewith. If Indemnitee is not wholly
successful in defense of any Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in that Proceeding, the Company will indemnify
Indemnitee against all Expenses actually and reasonably incurred by
him or on his behalf in connection with each successfully resolved
claim, issue or matter. For purposes of this Section 5 and
without limitation, the termination of any claim, issue or matter
in any Proceeding by dismissal, with or without prejudice, will be
deemed to be a successful result as to that claim, issue or
matter.
Section
6. Indemnification for Expenses as
a Witness. Notwithstanding any other provision hereof, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, the
Company will indemnify him against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith.
Section
7. Advancement of Expenses.
The Company will advance all reasonable Expenses incurred by or on
behalf of Indemnitee in connection with any Proceeding within 10
days after the Company receives a statement or statements from
Indemnitee requesting such advance or advances from time to time,
whether prior to or after final disposition of that
Proceeding. Each such statement must reasonably evidence the
Expenses incurred by or on behalf of Indemnitee and include or be
preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it ultimately is
determined that Indemnitee is not entitled to be indemnified by the
Company against those Expenses. The Company will accept any
such undertaking without reference to the financial ability of
Indemnitee to make repayment, and without regard to
Indemnitee’s ultimate entitlement to indemnification under
other provisions of this Agreement.
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Section
8. Procedure for Determination of
Entitlement to Indemnification . (a) Within sixty
(60) days after the actual receipt by Indemnitee of notice that he
or she is a party to or a participant (as a witness or otherwise)
in any Proceeding, Indemnitee shall submit to the Company a written
notice identifying the Proceeding. The omission by the
Indemnitee to notify the Company will not relieve the Company from
any liability which it may have to Indemnitee (i) otherwise than
under this Agreement, and (ii) under this Agreement only to the
extent the Company can establish that such omission to notify
resulted in actual prejudice to the Company.
(b) Indemnitee
shall thereafter deliver to the Company a written application to
indemnify Indemnitee in accordance with this Agreement. Such
application(s) may be delivered from time to time and at such
time(s) as Indemnitee deems appropriate in his or her sole
discretion. Following such a written application for
indemnification by Indemnitee, the Indemnitee’s entitlement
to indemnification shall be determined according to Section 8(c) of
this Agreement.
(c) On
written request by Indemnitee for indemnification pursuant to
Section 8(b), a determination, if applicable law requires, with
respect to Indemnitee’s entitlement thereto will be made in
the specific case: (i) by a majority vote of the Disinterested
Directors, even though less than a quorum of the Board, or (ii) if
so requested by the Indemnitee in his or her sole discretion by an
Independent Counsel in a written opinion to the Board, a copy of
which will be delivered to Indemnitee. If it is so determined
that Indemnitee is entitled to indemnification hereunder, the
Company will: (i) within 10 days after that determination pay
to Indemnitee all amounts theretofore incurred by or on behalf of
Indemnitee in respect of which Indemnitee is entitled to that
indemnification by reason of that determination; and (ii)
thereafter on written request by Indemnitee, pay to Indemnitee
within 10 days after that request such additional amounts
theretofore incurred by or on behalf of Indemnitee in respect of
which Indemnitee is entitled to that indemnification by reason of
that determination. Indemnitee will cooperate with the
person, persons or entity making the determination with respect to
Indemnitee’s entitlement to indemnification under this
Agreement, including providing to such person, persons or entity on
reasonable advance request any documentation or information which
is (i) not privileged or otherwise protected from disclosure, (ii)
reasonably available to Indemnitee and (iii) reasonably necessary
to that determination. The Company will bear all costs and
expenses (including attorneys’ fees and disbursements)
Indemnitee incurs in so cooperating (irrespective of the
determination as to Indemnitee’s entitlement to
indemnification) and hereby indemnifies and agrees to hold
Indemnitee harmless therefrom.
(d) If
an Independent Counsel is to make the determination of entitlement
to indemnification pursuant to Section 8(c), the Independent
Counsel will be selected as this Section 8(d) provides. If a
Change of Control has not occurred within two years prior to the
date of Indemnitee’s written request for indemnification
pursuant to Section 8(a), the Board will select the Independent
Counsel, and the Company will give written notice to Indemnitee
advising him of the identity of the Independent Counsel so
selected. If a Change of Control has occurred within two
years prior to the date of that written request, Indemnitee will
select the Independent Counsel (unless Indemnitee requests that the
Board make the selection, in
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which event the preceding
sentence will apply), and Indemnitee will give written notice to
the Company advising it of the identity of the Independent Counsel
so selected. In either event, Indemnitee or the Company, as
the case may be, may, within 10 days after the written notice of
selection has been given, deliver to the Company or to Indemnitee,
as the case may be, a written objection to the selection; provided,
however, that any such objection may be asserted only on the ground
that the Independent Counsel so selected is not an
“Independent Counsel” as Section 17 defines that term,
and the objection must set forth with particularity the factual
basis for that assertion. Absent a proper and timely
objection, the person so selected shall act as Independent
Counsel. If any such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until that objection is withdrawn or
a court of competent jurisdiction has determined that objection is
without merit. If (i) an Independent Counsel is to make the
determination of entitlement to indemnification pursuant to Section
8(c) and (ii) within 20 days after submission by Indemnitee of a
written request for indemnification pursuant to Section 8(a), no
Independent Counsel has been selected and not objected to, either
the Company or Indemnitee may petition the Court of Chancery or
other court of competent jurisdiction for resolution of any
objection that has been made by the Company or Indemnitee to the
other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
petitioned court or by such other person as the petitioned court
designates, and the person with respect to whom all objections are
so resolved or the person so appointed will act as the Independent
Counsel under Section 8(c). The Company will pay any and all
reasonable fees and expenses the Independent Counsel incurs in
connection with acting pursuant to Section 8(c), and the Company
will pay all reasonable fees and expenses incident to the
procedures this Section 8(d) sets forth, regardless of the manner
in which the Independent Counsel is selected or appointed. If
(i) the Independent Counsel selected or appointed pursuant to this
Section 8(d) does not make any determination respecting
Indemnitee’s entitlement to indemnification hereunder within
45 days after the Company receives a written request therefor and
(ii) any judicial proceeding or arbitration pursuant to Section
10(a) is then commenced, that Independent Counsel will be
discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional
conduct then prevailing).
Section
9. Presumptions and Effect of
Certain Proceedings. (a) In making a determination
with respect to entitlement to indemnification hereunder, the
person, persons or entity making that determination must presume
that Indemnitee is entitled to indemnification hereunder if
Indemnitee has submitted a request for indemnification in
accordance with Section 8(a), and the Company will have the burden
of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to
that presumption. Neither the failure of the Company
(including by its directors or independent legal counsel) to have
made a determination prior to the commencement of any action
pursuant to this Agreement that indemnification is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct, nor an actual determination by the Company (including by
its directors or independent legal counsel) that Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) The
termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or on a plea
of nolo contendere or its equivalent, will not (except as this
Agreement otherwise expressly provides) of itself adversely affect
the right of Indemnitee to indemnification hereunder or create a
presumption that Indemnitee did not act in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that
his conduct was unlawful.
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(c) Any
action Indemnitee takes or omits to take in connection with any
employee benefit plan will, if taken or omitted in good faith by
Indemnitee and in a manner Indemnitee reasonably believed to be in
the interest of the participants in or beneficiaries of that plan,
be deemed to have been taken or omitted in a manner “not
opposed to the best interests of the Company” for all
purposes hereof.
(d)
Reliance as Safe Harbor . For purposes of any
determination of good faith, Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the
records or books of account of the Enterprise, including financial
statements, or on information supplied to Indemnitee by the
officers of the Enterprise in the course of their duties, or on the
advice of legal counsel for the Enterprise or on information or
records given or reports made to the Enterprise by an independent
certified public accountant or by an appraiser or other expert
selected by the Enterprise. The provisions of this
Section 9(d) shall not be deemed to be exclusive or to limit in any
way the other circumstances in which the Indemnitee may be deemed
or found to have met the applicable standard of conduct set forth
in this Agreement.
(e)
Actions of Others . The knowledge and/or actions, or
failure to act, of any other director, trustee, partner, managing
member, fiduciary, officer, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
Section
10. Remedies of Indemnitee
. (a) In the event that (i) a determination is made
pursuant to Section 8 that Indemnitee is not entitled to
indemnification hereunder, (ii) advancement of Expenses is not
timely made pursuant to Section 7, (iii) no determination as to
Indemnitee’s entitlement to indemnification shall have been
made pursuant to Section 8(c) of this Agreement hereunder, or that
determination shall not have been made within 45 days after receipt
by the Company of the request for that indemnification, (iv)
payment of indemnification is not made pursuant to Section 5 or 6
within 10 days after receipt by the Company of a written request
therefor or (v) payment of indemnification pursuant to Section 8(c)
is not made timely, Indemnitee will be entitled to an adjudication
from the Court of Chancery of his entitlement to that
indemnification or advancement of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association.
Indemnitee must commence any such proceeding seeking an
adjudication or an award in arbitration within 180 days following
the date on which Indemnitee first has the right to commence that
proceeding pursuant to this Section 10(a); provided, however, that
this sentence will not apply in respect of a proceeding brought by
Indemnitee to enforce his rights under Section 5.
(b) &nbs
