AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 20, 1999
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. CONCRETE, INC.
(Exact name of registrant as specified in its charter)
1360 POST OAK BLVD., SUITE 800
HOUSTON, TEXAS
(Address of Principal Executive Offices)
DELAWARE 77056 76-0586680
(State or other jurisdiction of (Zip Code) (I.R.S. Employer
incorporation or organization) Identification No.)
- ------------------------------------------------------------------------------
1999 INCENTIVE PLAN OF U.S. CONCRETE, INC.
(Full title of the plan)
- ------------------------------------------------------------------------------
EUGENE P. MARTINEAU
CHIEF EXECUTIVE OFFICER
U.S. CONCRETE, INC.
1360 POST OAK BLVD., SUITE 800
HOUSTON, TEXAS 77056
(Name and address of agent for service)
Telephone number, including area code,
of agent for service:
(713) 350-6040
FAX: (713) 350-6042
copy to:
TED W. PARIS, ESQ.
BAKER & BOTTS, L.L.P.
3000 ONE SHELL PLAZA
HOUSTON, TEXAS 77002-4995
(713) 229-1234
FAX: (713) 229-1522
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================
Proposed
Title of Amount Proposed Maximum Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share(1) Offering Price(1) Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value
$.001 per share)(2) 2,000,000 $9.84375 $19,687,500 $ 5,473.13
=====================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sales price of the shares of Common Stock of U.S. Concrete, Inc. quoted
on the Nasdaq National Market on July 15, 1999.
(2) Includes the associated rights to purchase preferred stock.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of registrant
information and any other information required by Item 2 of Form S-8 will be
sent or given to participants as specified by Rule 428 under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The registrant will maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
registrant will furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement incorporates herein by reference the following
documents, which have been filed with the Commission by U.S. Concrete, Inc., a
Delaware corporation (the "Company"):
1. The Company's prospectus dated May 25, 1999, as filed with the
Commission pursuant to Rule 424(b) of the Securities Act;
2. The description of the Company's Common Stock, par value $.001 per
share ("Common Stock"), contained in the Company's Registration Statement on
Form 8-A, as filed with the Commission on May 11, 1999 pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
3. The description of the Rights to Purchase Series A Junior Participating
Preferred Stock of the Company contained in the Company's Registration Statement
on Form 8-A, as filed with the Commission on May 11, 1999 pursuant to the
Exchange Act.
Each document filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Any statement incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
DELAWARE GENERAL CORPORATION LAW
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another
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<PAGE>
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or 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
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 145(b) of the DGCL states that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit 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 corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present or
former director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 145(d) of the DGCL states that any indemnification under subsections
(a) and (b) of Section 145 (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee or agent is
proper in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b). Such determination shall be made
with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who were not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in Section 145. Such
expenses (including attorneys' fees) incurred by former directors and officers
or other employees and agents may be so paid upon such terms and conditions, if
any, as the corporation deems appropriate.
Section 145(f) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of Section
145 shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office.
Section 145(g) of the DGCL provides that a corporation shall have the power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
II-2
<PAGE>
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the
provisions of Section 145.
Section 145(j) of the DGCL states that the indemnification and advancement of
expenses provided by, or granted pursuant to, Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of the Company provides that a director of
the Company shall not be personally liable to the Company or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Company, in addition to the limitation on personal liability
described above, shall be limited to the fullest extent permitted by the amended
DGCL. Further, any repeal or modification of such provision of the Restated
Certificate of Incorporation by the stockholders of the Company shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Company existing at the time of such repeal or
modification.
BYLAWS
The Bylaws of the Company provide that the Company will indemnify and hold
harmless any director or officer of the Company to the fullest extent permitted
by applicable law, as in effect as of the date of the adoption of the Bylaws or
to such greater extent as applicable law may thereafter permit, from and against
all judgments, penalties, fines, amounts paid in settlement and expenses
(including attorneys' fees) whatsoever arising out of any event or occurrence
related to the fact that such person is or was a director or officer of the
Company and further provide that the Company may, but is not required to,
indemnify and hold harmless any employee or agent of the Company or a director,
officer, employee or agent of any other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise who is or was serving in such
capacity at the written request of the Company; provided, however, that the
Company is only required to indemnify persons serving as directors, officers,
employees or agents of the Company for the expenses incurred in a proceeding if
such person is a party to and is successful, on the merits or otherwise, in such
proceeding, or if unsuccessful in the proceeding, but successful as to a matter
in such proceeding the expenses attributable to such matter and provided further
that the Company may, but is not required to, indemnify such persons who are
serving as a director, officer, employee or agent of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise at
the written request of the Company for the expenses incurred in a proceeding if
such person is a party to and is successful, on the merits or otherwise, in such
proceeding. The Bylaws further provide that, in the event of any threatened, or
pending action, suit or proceeding in which any of the persons referred to above
is a party or is involved and that may give rise to a right of indemnification
under the Bylaws, following written request by such person, the Company will
promptly pay to such person amounts to cover expenses reasonably incurred by
such person in such proceeding in advance of its final disposition upon the
receipt by the Company of (i) a written undertaking executed by or on behalf of
such person providing that such person will repay the advance if it is
ultimately determined that such person is not entitled to be indemnified by the
Company as provided in the Bylaws and (ii) satisfactory evidence as to the
amount of such expenses.
INDEMNIFICATION AGREEMENTS
The Company has entered into Indemnification Agreements with each of its
directors and executive officers. The Indemnification Agreements generally are
to the same effect as the Bylaw provisions described above.
II-3
<PAGE>
UNDERWRITING AGREEMENT
The Underwriting Agreement dated May 25, 1999 among the Company and the
underwriters named therein (a form of which Underwriting Agreement was filed as
Exhibit 1.1 to the Company's Registration Statement on Form S-1 (Registration
No. 333-74855)) provides for indemnification of the directors and officers of
the Company in certain circumstances.
INSURANCE
The Company intends to maintain liability insurance for the benefit of its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following documents are filed as a part of this registration statement or
incorporated by reference herein:
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.1* -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-74855))
4.2* -- Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1
(Registration No. 333-74855))
4.3* -- Form of Certificate representing Common Stock (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-1 (Registration No. 333-74855))
4.4* -- Rights Agreement between the Company and American Stock
Transfer & Trust Company, including the form of Rights
Certificate attached as Exhibit B thereto (incorporated by
reference to Exhibit 4.4 to the Company's Registration Statement
on Form S-1 (Registration No. 33-74855)).
4.5* -- 1999 Incentive Plan of U.S. Concrete, Inc. (incorporated by
reference to Exhibit 10.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-74855))
5.1 -- Opinion of Baker & Botts, L.L.P. 23.1 -- Consent of Arthur
Andersen LLP
23.2 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1)
* Incorporated herein by reference as indicated.
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<PAGE>
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 15th day of July,
1999.
U.S. CONCRETE, INC.
By: /S/ EUGENE P. MARTINEAU
Eugene P. Martineau
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 15th day of July, 1999.
SIGNATURE TITLE
/S/ EUGENE P. MARTINEAU President and Chief Executive Officer and
- ---------------------------- Director (Principal Executive Officer)
Eugene P. Martineau
/S/ MICHAEL W. HARLAN Chief Financial Officer and Director (Principal
- ---------------------------- Financial and Accounting Officer)
Michael W. Harlan
/S/ VINCENT D. FOSTER Director
- ----------------------------
Vincent D. Foster
/S/ JOHN R. COLSON Director
- ----------------------------
John R. Colson
/S/ PETER T. DAMERIS
- ---------------------------- Director
Peter T. Dameris
/S/ WILLIAM T. ALBANESE Director
- ----------------------------
William T. Albanese
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<PAGE>
/S/ MICHAEL D. MITSCHELE Director
- ----------------------------
Michael D. Mitschele
/S/ MURRAY S. SIMPSON Director
- ----------------------------
Murray S. Simpson
/S/ NEIL J. VANNUCCI Director
- ----------------------------
Neil J. Vannucci
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<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
- ------- -----------
4.1* -- Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Registration No. 333-74855))
4.2* -- Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1
(Registration No. 333-74855))
4.3* -- Form of Certificate representing Common Stock (incorporated by
reference to Exhibit 4.1 to the Company's Registration Statement
on Form S-1 (Registration No. 333-74855))
4.4* -- Rights Agreement between the Company and American Stock
Transfer & Trust Company, including the form of Rights
Certificate attached as Exhibit B thereto (incorporated by
reference to Exhibit 4.4 to the Company's Registration Statement
on Form S-1 (Registration No. 33-74855)).
4.5* -- 1999 Incentive Plan of U.S. Concrete, Inc. (incorporated by
reference to Exhibit 10.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-74855))
5.1 -- Opinion of Baker & Botts, L.L.P.
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1)
* Incorporated herein by reference as indicated.
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EXHIBIT 5.1
[Baker & Botts Letterhead]
July 20, 1999
U.S. Concrete, Inc.
1360 Post Oak Blvd., Suite 800
Houston, Texas 77056
Gentlemen:
In connection with the Registration Statement on Form S-8 (the
"Registration Statement" ) being filed by U.S. Concrete, Inc., a Delaware
corporation (the " Company"), with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, relating to 2,000,000 shares of common
stock of the Company, par value $.001 per share ("Common Stock"), that may be
issued pursuant to the 1999 Incentive Plan of U.S. Concrete, Inc. (the "Plan"),
certain legal matters in connection with such shares are being passed upon for
the Company by us. At your request, this opinion is being furnished for filing
as Exhibit 5.1 to the Registration Statement.
In our capacity as your counsel in the connection referred to above,
we have examined the Company's Restated Certificate of Incorporation and Bylaws,
each as amended to date, and the originals, or copies certified or otherwise
identified, of corporate records of the Company, certificates of public
officials and of representatives of the Company, statutes and other instruments
and documents as a basis for the opinions hereinafter expressed. In giving such
opinions, we have relied upon certificates of officers of the Company with
respect to the accuracy of material factual matters contained in or covered by
such certificates.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware.
2. Upon the issuance of shares of Common Stock pursuant to the
provisions of the Plan and the related award agreements authorized and approved
by the Compensation Committee of the Board of Directors of the Company for
consideration at least equal to the par value of such shares, such shares of
Common Stock will be duly authorized by all necessary corporate action on the
part of the Company, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Baker & Botts, L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of U.S. Concrete, Inc.
(the "Company") of our reports included in or made a part of the Company's
Registration Statement on Form S-1 (Reg. No. 333-74855), and to all references
to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
July 20, 1999
