Document/Exhibit Description Pages Size
1: POS AM Post Effective Amendment No.1 to Form S-3 44 212K
2: EX-1.2 Flexible Underwriter Equity Facility Agreement 46 251K
3: EX-1.3 Amended and Restated Engagement Ltr Amgt 26 114K
4: EX-4.2 Amended and Restated Bylaws 25 112K
5: EX-12.1 Computation of Ratios of Earnings to Fixed Charges 1 7K
6: EX-23.1 Consent of Arthur Andersen LLP 1 5K
As filed with the Securities and Exchange Commission on January 24, 2002
Registration No. 33-42860
================================================================================
SECURITIES AND EXCHANGE COMMISSION
_________________
POST-EFFECTIVE AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________
U.S. CONCRETE, INC.
(Exact name of registrant as specified in its charter)
Delaware 2925 Briarpark, Suite 500 76-0586680
(State or other jurisdiction Houston, Texas 77042 (I.R.S. Employer
of incorporation or organization) (713) 499-6200 Identification No.)
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Donald C. Wayne
Vice President, General Counsel and Secretary
U.S. Concrete, Inc.
2925 Briarpark, Suite 500
Houston, Texas 77042
(713) 499-6200
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
________________
Copy to:
Ted W. Paris
Baker Botts L.L.P.
3000 One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
(713) 229-1838
Fax: (713) 229-1522
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[_]
__________________
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act, or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said Section 8(a), may
determine.
================================================================================
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission effective. This prospectus is not an offer to
sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted
Subject to Completion, dated January 24, 2002
Prospectus
[Logo]
U.S. Concrete, Inc.
2925 Briarpark, Suite 500
Houston, Texas 77042
(713) 499-6200
$185,440,000
Senior Debt Securities
Subordinated Debt Securities
Preferred Stock
Common Stock
Warrants
________________
The Offering
We may offer from time to time any of the following securities:
. senior debt securities;
. subordinated debt securities;
. shares of preferred stock;
. shares of common stock; and
. warrants to purchase debt securities or shares of preferred stock or common
stock.
This prospectus provides a general description of the securities we may
offer. Each time we offer securities under this prospectus, we will provide a
supplement to this prospectus that will contain specific information about the
offering and the terms of the securities. The supplement may also add, update
or change information that this prospectus contains. You should read this
prospectus and the related prospectus supplement carefully before you invest in
our securities. No person may use this prospectus to offer and sell securities
unless a prospectus supplement that describes those securities accompanies this
prospectus.
We may sell our securities to or through underwriters, to other purchasers
and/or through agents. The accompanying prospectus supplement will specify the
names of any underwriters or agents we engage to offer and sell any securities
under this prospectus.
Of the shares of our common stock we may offer under this prospectus, we
may offer and sell a number of shares that could result in maximum gross
proceeds to us of up to $12,255,168 under an agreement we have entered into with
Ramius Securities, LLC, as underwriter. The total amount of common stock we may
offer and sell under that agreement will not exceed 1,800,000 shares. Please
see the description of that agreement under the heading "Plan of Distribution -
Existing Underwriting Arrangement" beginning on page 28 of this prospectus.
Our common stock is quoted on the Nasdaq National Market under the symbol
"RMIX."
You should carefully consider the risks described under the caption "Risk
Factors" beginning on page 4.
_________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_________________
The date of this prospectus is , 2002.
Table of Contents
[Download Table]
About This Prospectus.................................................... 2
About U.S. Concrete, Inc................................................. 3
Risk Factors............................................................. 4
Forward-Looking Information.............................................. 10
Use of Proceeds.......................................................... 11
Ratio of Earnings to Fixed Charges....................................... 11
Description of Debt Securities........................................... 12
Description of Capital Stock............................................. 20
Description of Warrants.................................................. 26
Plan of Distribution..................................................... 28
Legal Matters............................................................ 32
Experts.................................................................. 32
Where You Can Find More Information...................................... 32
About This Prospectus
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission under a "shelf" registration process.
Using this process, we may offer any combination of the securities this
prospectus describes in one or more offerings with a total initial offering
price of up to $185,440,000. This prospectus provides you with a general
description of the securities we may offer. Each time we use this prospectus to
offer securities, we will provide a prospectus supplement and, if applicable, a
pricing supplement. The prospectus supplement and any pricing supplement will
describe the specific terms of that offering. The prospectus supplement and any
pricing supplement may also add, update or change the information this
prospectus contains. Please carefully read this prospectus, the prospectus
supplement and any pricing supplement, in addition to the information contained
in the documents we refer to under the heading "Where You Can Find More
Information."
The registration statement originally covered securities having a maximum
aggregate offering price of $200,000,000. In July 2001, we offered and sold
1,820,000 shares of our common stock under the registration statement for an
aggregate public offering price of $14,560,000. As a result, the securities we
offer under this prospectus will have a total initial offering price that does
not exceed $185,440,000.
2
About U.S. Concrete, Inc.
U.S. Concrete provides ready-mixed concrete and related products and
services to the construction industry in several major markets in the United
States. As of December 31, 2001, we have 83 operating plants producing over 5.8
million cubic yards of concrete annually. Our operations consist principally of
formulating, preparing, delivering and placing ready-mixed concrete at the job
sites of our customers. We provide services intended to reduce our customers'
overall construction costs by lowering the installed, or "in-place," cost of
concrete. These services include the formulation of new mixtures for specific
design uses, on-site and lab-based product quality control and delivery programs
we configure to meet our customers' needs.
We completed our initial public offering in May 1999. At the same time, we
acquired six ready-mixed concrete and related businesses and began operating 26
concrete plants in three major markets in the United States. Since our IPO and
through December 31, 2001, we have acquired an additional 21 ready-mixed
concrete and related businesses, operating an additional 57 concrete plants, in
seven additional major markets in the United States.
To increase our geographic diversification and expand the scope of our
operations, we seek to acquire businesses operating under quality management
teams in growing markets. Our acquisition strategy has two primary objectives.
In a new market, we target one or more companies that can serve as platform
businesses into which we can integrate other concrete operations. In markets
where we have existing operations and seek to increase our market penetration,
we pursue acquisitions that can complement our existing operations.
In this prospectus, we refer to U.S. Concrete, Inc., its wholly owned
subsidiaries and its ownership interest in equity affiliates as "we," "us" or
"U.S. Concrete," unless we specifically state otherwise or the context indicates
otherwise. Our principal executive offices are located at 2925 Briarpark, Suite
500, Houston, Texas 77042, and our telephone number at that location is (713)
499-6200.
3
Risk Factors
You should carefully consider the following matters, in addition to the
other information we have provided in this prospectus, the accompanying
prospectus supplement and the documents we incorporate by reference, before
reaching a decision regarding an investment in our securities. The risks and
uncertainties we describe below are not the only ones relating to these
securities or facing our company. Additional risks and uncertainties not
presently known to us or that we currently do not believe are material may also
impact our business, operations, financial condition or results of operations.
We have a limited history of operating and integrating acquired businesses, and
we may not be able to realize our business strategy of reducing costs and
achieving revenue enhancements in the operations of the businesses we acquire
If we are unable to integrate or successfully manage the companies we have
acquired or may acquire in the future, our business, financial condition and
results of operations could be materially and adversely affected. We completed
our initial public offering in May 1999. At the same time, we acquired six
ready-mixed concrete and related businesses. Since our IPO and through December
31, 2001, we have grown rapidly through the acquisition of an additional 21
ready-mixed concrete and related businesses. To manage the combined enterprise
on a profitable basis, we must implement several common systems and various
control mechanisms in each of the businesses we acquire. We may not be able to
realize our business strategy of reducing costs and achieving revenue
enhancements in the operations of the businesses we acquire for a number of
reasons, including the following:
. we may fail to integrate the businesses we acquire into a cohesive,
efficient enterprise with company-wide information and management
systems and effective cost and other control mechanisms;
. we will have to rely on existing accounting, information and
administrative systems of acquired businesses, which may be inadequate,
until we can implement the systems we use in our existing operations;
. our resources, including management resources, are limited and may be
strained if we engage in a significant number of acquisitions, and
acquisitions may divert our management's attention from initiating or
carrying out programs to save costs or enhance revenues; and
. our ability to realize significant cost savings and customer cross-
selling opportunities in any market will depend on the extent to which
our acquisition strategy succeeds in that market.
We may be unsuccessful in identifying and acquiring sufficient acquisition
candidates to carry out our growth strategy
One of our principal growth strategies is to increase our revenues and the
markets we serve through the acquisition of additional ready-mixed concrete and
related businesses. We expect to face competition for acquisition candidates
and we may not be able to identify and acquire sufficient suitable acquisition
candidates available for sale at reasonable prices and on other reasonable terms
for a number of reasons, including:
. the unwillingness of candidates to sell during a period of growing
demand for ready-mixed concrete;
. competitors in our industry may outbid us;
. we may not have sufficient available capital to pay for acquisitions; or
. our lenders may not provide the necessary consent under our revolving
credit facility, which requires the consent of the lenders for all
acquisitions.
4
There are risks related to our operating and internal growth strategies
A key element of our strategy is to increase the profitability and revenues
of the businesses we acquire. Although we have been implementing this strategy
by various means since our IPO, you have no assurance that we will be able to
continue to do so successfully. Another key component of our strategy is to
operate the businesses we acquire on a decentralized basis, with local
management retaining responsibility for day-to-day operations, profitability and
the internal growth of the individual business. If we do not implement and
maintain proper overall business controls, this decentralized operating strategy
could result in inconsistent operating and financial practices at the businesses
we acquire, and our overall profitability could be adversely affected. Our
ability to generate internal growth will be affected by, among other factors,
our ability to:
. emphasize new product development and value-added sales and marketing;
. attract new customers;
. hire and retain employees; and
. reduce operating and overhead expenses.
Many of the factors affecting our ability to generate internal growth may
be beyond our control, and you have no assurance that our strategies will be
successful or that we will be able to generate cash flow sufficient to fund our
operations and to support internal growth. Our inability to achieve internal
growth could materially and adversely affect our business, financial condition
and results of operations.
We may not have access to sufficient funding to finance future acquisitions
If we cannot secure additional financing on acceptable terms, we may be
unable to continue pursuing our acquisition strategy successfully and we may be
unable to support our growth strategy. We cannot readily predict the timing,
size and success of our acquisition efforts or the capital we will need for
those efforts. We intend to continue to use our common stock as a significant
component of the consideration we pay for future acquisitions. Issuances of
common stock as acquisition consideration could have a dilutive effect on our
then existing stockholders. If our common stock does not maintain a sufficient
market value or potential acquisition candidates are unwilling to accept our
common stock as part of the consideration for the sale of their businesses, we
may be required to use more of our cash resources to pursue our acquisition
program. Using cash for acquisition consideration limits our financial
flexibility and increases the likelihood that we will need to seek additional
capital through future debt or equity financings. If we seek more debt
financing, we may have to agree to financial covenants that limit our
operational and financial flexibility. Additional equity financing may dilute
the ownership interests of our then existing stockholders. You have no
assurance that additional debt or equity financing will be available on terms
acceptable to us. Our principal credit facility contains a general requirement
for us to obtain the consent of the lenders for acquisitions.
Our business growth could outpace the capability of our corporate management and
systems
We expect to grow both internally and through acquisitions. We expect to
expend significant time and effort in evaluating, completing and integrating
acquisitions and opening new facilities. We cannot be certain that our systems,
procedures and controls will be adequate to support our operations as they
expand. Any future growth also will impose significant additional
responsibilities on members of our senior management and executive officers.
Our success will also depend on recruiting new senior level managers and
officers and we cannot be certain that we can recruit and retain such additional
managers and officers. To the extent we are unable to manage our growth
effectively, or are unable to attract and retain additional qualified management
personnel, our business, financial condition and results of operations could be
materially and adversely affected.
5
The departure of key personnel could disrupt our business
We depend on the continued efforts of our executive officers and, in many
cases, on senior management of the businesses we acquire. The loss of key
personnel, or the inability to hire and retain qualified replacements, could
adversely effect our business, financial condition and results of operations.
We do not carry key-person life insurance on any of our employees.
We may be unable to attract and retain qualified employees
Our ability to provide high-quality products and services on a timely basis
requires that we employ an adequate number of skilled plant managers,
technicians and drivers. Accordingly, our ability to increase our productivity
and profitability will be limited by our ability to employ, train and retain
skilled personnel necessary to meet our requirements. Like many of our
competitors, we are currently experiencing shortages of qualified personnel.
You have no assurance that we will be able to maintain an adequate skilled labor
force necessary to operate efficiently and to support our growth strategy or
that our labor expenses will not increase as a result of a shortage in the
supply of skilled personnel.
We may lose business to competitors who underbid us and otherwise be unable to
compete favorably in our highly competitive industry
We may lose business to competitors who underbid us and otherwise be unable
to compete favorably in our highly competitive industry. Our competitive
position in a given market will depend largely on the location and operating
costs of our ready-mixed concrete plants and prevailing prices in that market.
Price is the primary competitive factor among suppliers for small or simple
jobs, principally in residential construction, while timeliness of delivery and
consistency of quality and service as well as price are the principal
competitive factors among suppliers for large or complex jobs. Our competitors
range from small, owner-operated private companies offering simple mixes to
subsidiaries or operating units of large, vertically integrated cement
manufacturing and concrete products companies. Competitors having lower
operating costs than we do or having the financial resources to enable them to
accept lower margins than we do will have a competitive advantage over us for
jobs that are particularly price-sensitive. Competitors having greater financial
resources than we do to invest in new mixer trucks, build plants in new areas or
pay for acquisitions also will have competitive advantages over us.
Our operating results may vary significantly quarter-to-quarter
The ready-mixed concrete business is subject to seasonal variations. In
particular, demand for our products and services during the winter months is
typically lower than in other months of the year due to inclement weather.
Additionally, the ready-mixed concrete industry can be highly cyclical. As a
result, our volume of business may be adversely affected by declines in
construction in various geographic regions of the U.S. Our quarterly results
may also be materially affected by, among other things:
. the timing of acquisitions;
. variations in the margins of jobs performed during any particular
quarter;
. the timing and magnitude of acquisition assimilation costs;
. the budgetary spending patterns of customers;
. costs we incur to support growth internally or through acquisitions or
otherwise;
. the change in mix of our customers and business;
. increases in construction and design costs; and
6
. regional or general economic conditions.
As a result, our operating results in any particular quarter may not be
indicative of the results that you can expect for any other quarter or for the
entire year.
Our results of operations could be adversely affected as a result of goodwill
impairments
When we acquire a business, we record an asset called "goodwill" equal to
the excess amount we pay for the business, including liabilities we assume, over
the fair value of the tangible and separately identifiable intangible assets of
the business we acquire. The Financial Accounting Standards Board recently
adopted changes to its accounting standards that relate to business
combinations, goodwill and other intangible assets. These standards continue to
require recognition of goodwill as an asset, but will not permit amortization of
goodwill as currently required by applicable generally accepted accounting
principles. These changes will require us to test goodwill periodically for
impairment using a fair-value based approach. We will evaluate goodwill for
impairment on an annual basis or when events or circumstances occur indicating
that goodwill might be impaired. If we determine that any of the remaining
balance of goodwill is impaired, we will be required to take an immediate charge
to earnings. We will be required to apply the new standards beginning January
1, 2002, except that for the business combinations we completed after June 30,
2001 the new standards are currently effective. We are currently evaluating the
potential impact of the adoption of these changes on our financial position and
results of operations. As of September 30, 2001, goodwill represented
approximately 50% of our total assets.
Governmental regulations, including environmental regulations, may result in
increases in our operating costs and capital expenditures and decreases in our
earnings
A wide range of federal, state and local laws, ordinances and regulations
apply to our operations, including the following matters:
. land usage;
. street and highway usage;
. noise levels; and
. health, safety and environmental matters.
In many instances, we must have various certificates, permits or licenses in
order to conduct our business. Our failure to maintain required certificates,
permits or licenses or to comply with applicable governmental requirements could
result in substantial fines or possible revocation of our authority to conduct
some of our operations. Delays in obtaining approvals for the transfer or grant
of certificates, permits or licenses, or failure to obtain new certificates,
permits or licenses, could impede the implementation of our acquisition program.
Governmental requirements that impact our operations include those relating
to air quality, solid waste management and water quality. These requirements are
complex and subject to frequent change. They impose strict liability in some
cases without regard to negligence or fault and expose us to liability for the
conduct of or conditions caused by others, or for our acts that complied with
all applicable requirements when we performed them. Our compliance with amended,
new or more stringent requirements, stricter interpretations of existing
requirements or the future discovery of environmental conditions may require us
to make material expenditures we currently do not anticipate. In addition,
although we intend to conduct appropriate investigations with respect to
environmental matters in connection with future acquisitions, we may fail to
identify or obtain indemnification from all potential environmental liabilities
of any acquired business.
7
Collective bargaining agreements, work stoppages and other labor relations
matters may result in increases in our operating costs, disruptions in our
business and decreases in our earnings
At September 30, 2001, approximately 46% of our employees were covered by
collective bargaining agreements. Any inability by us to negotiate acceptable
new contracts with these unions could cause strikes or other work stoppages by
the affected employees, and new contracts could result in increased operating
costs attributable to both union and non-union employees. If any such strikes or
other work stoppages were to occur, or if other of our employees were to become
represented by a union, we could experience a significant disruption of our
operations and higher ongoing labor costs which could materially adversely
affect our business, financial condition and results of operations. In addition,
the coexistence of union and non-union employees may lead to conflicts between
union and non-union employees or impede our ability to integrate our operations
efficiently. Labor relations matters affecting our suppliers of cement and
aggregates could adversely impact our business from time to time.
Our operations are subject to various hazards that may cause personal injury or
property damage and increase our operating costs
Operating mixer trucks, particularly when loaded, exposes our drivers and
others to traffic hazards. Our drivers are subject to the usual hazards
associated with providing services on construction sites, while our plant
personnel are subject to the hazards associated with moving and storing large
quantities of heavy raw materials.
Our operating hazards can cause personal injury and loss of life, damage to
or destruction of property, plant and equipment and environmental damage.
Although we conduct training programs designed to reduce the risks of these
occurrences, we cannot eliminate these risks. We maintain insurance coverage in
amounts and against the risks we believe accord with industry practice, but this
insurance may not be adequate to cover all losses or liabilities we may incur in
our operations, and we may not be able to maintain insurance of the types or at
levels we deem necessary or adequate or at rates we consider reasonable.
We may incur material costs and losses as a result of claims our products do not
meet regulatory requirements or contractual specifications
Our operations generally involve providing mixed designs of concrete which
must meet building code or other regulatory requirements and contractual
specifications for durability, stress-level capacity, weight-bearing capacity
and other characteristics. We generally warrant to our customers that the
concrete we provide: (1) in its plastic state on site will be delivered on time
and in conformity with applicable tests and contractual specifications; and (2)
in its hardened state will satisfy any applicable industry compressive strength
test conducted by an independent testing laboratory. If we fail to provide
product in accordance with these requirements and specifications, claims may
arise against us or our reputation may be damaged.
The market price of our common stock may be volatile
The market price of our common stock may be volatile. Factors that could
cause that volatility include:
. fluctuations in our annual or quarterly financial results or those of
our competitors or consolidators having growth strategies similar to
ours in other industries;
. price and volume volatility in the stock market generally or in the
group of companies having smaller market capitalizations similar to
ours;
. changes in the market valuations of other consolidators;
. failures of our operating results to meet the estimates of securities
analysts or the expectations of our stockholders or changes by
securities analysts in their estimates of our future earnings;
8
. the perceived risks associated with our possible future issuances of
additional shares of common stock;
. changing conditions in our cyclical industry or in the local and
regional economies in which we operate; and
. unfavorable publicity or changes in laws or regulations which adversely
affect our industry or us.
We may issue preferred stock whose terms could adversely affect the voting power
or value of our common stock
Our certificate of incorporation authorizes us to issue, without the
approval of our stockholders, one or more classes or series of preferred stock
having such preferences, powers and relative, participating, optional and other
rights, including preferences over our common stock respecting dividends and
distributions, as our board of directors may determine. The terms of one or
more classes or series of preferred stock could adversely impact the voting
power or value of our common stock. For example, we might afford holders of
preferred stock the right to elect some number of our directors in all events or
on the happening of specified events or the right to veto specified
transactions. Similarly, the repurchase or redemption rights or liquidation
preferences we might assign to holders of preferred stock could affect the
residual value of the common stock. See "Description of Capital Stock --
Preferred Stock" and "-- Stockholders Rights Plan."
Provisions in our corporate documents and Delaware law could delay or prevent a
change in control of our company, even if that change would be beneficial to our
stockholders
The existence of some provisions in our corporate documents and Delaware
law could delay or prevent a change in control of our company, even if that
change would be beneficial to our stockholders. Our certificate of
incorporation and bylaws contain provisions that may make acquiring control of
our company difficult, including:
. provisions relating to the classification, nomination and removal of our
directors;
. provisions limiting the right to call special meetings of our board of
directors and our stockholders;
. provisions regulating the ability of our stockholders to bring matters
for action at annual meetings of our stockholders;
. a prohibition of action by our stockholders without a meeting; and
. the authorization given to our board of directors to issue and set the
terms of preferred stock.
In addition, we have adopted a stockholder rights plan that would cause extreme
dilution to any person or group who attempts to acquire a significant interest
in U.S. Concrete without advance approval of our board of directors, while the
Delaware General Corporation Law would impose some restrictions on mergers and
other business combinations between us and any holder of 15% or more of our
outstanding common stock. See "Description of Capital Stock."
9
Forward-Looking Information
This prospectus, including the information we incorporate by reference,
includes forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
You can identify our forward-looking statements by words such as "estimate,"
"project," "predict," "believe," "expect," "anticipate," "plan," "forecast,"
"budget," "goal" or other words that convey the uncertainty of future events or
outcomes. When considering these forward-looking statements, you should keep in
mind the risk factors and other cautionary statements in this prospectus, any
prospectus supplement and the documents we have incorporated by reference.
The forward-looking statements are not guarantees of future performance,
and we caution you not to rely unduly on them. We have based many of these
forward-looking statements on expectations and assumptions about future events
that may prove to be inaccurate. Although our management considers these
expectations and assumptions to be reasonable, they are inherently subject to
significant business, economic, competitive, regulatory and other risks,
contingencies and uncertainties, most of which are difficult to predict and many
of which are beyond our control. These risks, contingencies and uncertainties
relate to, among other matters, the following:
. our acquisition and national operating strategies;
. our ability to integrate the businesses we acquire;
. our ability to obtain the capital necessary to finance our growth
strategies;
. the availability of qualified personnel;
. the trends we anticipate in the ready mixed concrete industry and in our
business;
. the level of activity in the construction industry generally and in our
local markets for ready-mixed concrete;
. the cost of capital, including the interest expense associated with our
outstanding borrowings, which is tied to market interest rates;
. our ability to maintain compliance with the covenants under the
documents relating to our outstanding indebtedness;
. the highly competitive nature of our business;
. changes in, or our ability to comply with, governmental regulations,
including those relating to the environment;
. our labor relations and those of our suppliers of cement and aggregates;
. the level of funding allocated by the United States Government for
federal highway, transit and safety spending;
. power outages and other unexpected events that delay or adversely affect
our ability to deliver concrete according to our customers'
requirements;
. our ability to control costs and maintain quality; and
. our exposure to warranty claims from developers and other customers.
We have discussed some of these factors in more detail in the "Risk Factors"
section of this prospectus. These factors are not necessarily all the important
factors that could affect us. We advise you that you should (1) be aware that
important factors we do not refer to above could affect the accuracy of our
forward-looking statements and (2) use caution and common sense when considering
our forward-looking statements. We do not intend to update these statements
unless the securities laws require us to do so.
10
Use of Proceeds
Unless we inform you otherwise in the prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include acquisitions, working capital, capital
expenditures, repayment and refinancing of indebtedness and repurchases and
redemptions of securities. Pending any specific application, we may initially
invest those funds in short-term marketable securities or apply them to the
reduction of short-term indebtedness.
Ratio of Earnings to Fixed Charges
The following table presents our ratio of earnings to fixed charges for
each of the periods shown. We have computed the ratios of earnings to fixed
charges by dividing earnings by fixed charges. For this purpose, "earnings"
consist of income before income taxes plus fixed charges exclusive of
capitalized interest. "Fixed charges" consist of interest, whether expensed or
capitalized, amortization of capitalized expenses relating to indebtedness and
an estimate of the portion of annual rental expense on operating leases that
represents the interest factor. Because our financial statements present
Central Concrete Supply Co., Inc., one of the businesses we acquired in May 1999
when we completed our IPO, as the purchaser of the other businesses we have
acquired and U.S. Concrete, in accordance with the purchase method of
accounting, the following information reflects results of Central only for
periods prior to June 1, 1999, the date we recorded our initial acquisitions for
accounting purposes, and for U.S. Concrete and its consolidated subsidiaries
after that date.
[Enlarge/Download Table]
Nine Months Year Ended December 31
Ended ------------------------------------------------------
September 30, 2001 2000 1999 1998 1997 1996
------------------------ ---- ---- ---- ---- ----
(Unaudited)
Ratio of earnings to fixed charges 1.8x 3.0x 9.3 x 36.1 x 17.0 x 4.7 x
11
Description of Debt Securities
The debt securities this prospectus covers will be our general unsecured
obligations. The debt securities will be either senior debt securities or
subordinated debt securities. We will issue the debt securities under one or
more separate indentures between us and a trustee that we will name in the
prospectus supplement. Senior debt securities will be issued under a senior
indenture, and subordinated debt securities will be issued under a subordinated
indenture. We sometimes call the senior indenture and the subordinated
indenture the "indentures."
We have summarized selected provisions of the indentures and the debt
securities below. You should read the indentures for more details regarding the
provisions we describe below and for other provisions that may be important to
you. We have filed the forms of the indentures with the SEC as exhibits to the
registration statement. Please read "Where You Can Find More Information."
In this summary description of the debt securities, all references to "U.S.
Concrete" or "us" mean U.S. Concrete, Inc. only, unless we state otherwise or
the context clearly indicates otherwise.
General
The senior debt securities will constitute senior debt and will rank
equally with all our unsecured and unsubordinated debt. The subordinated debt
securities will be subordinated to, and thus have a position junior to, any
senior debt securities and all our other senior debt. The indentures will not
limit the amount of debt we may issue under the indentures, and, unless we
inform you otherwise in the prospectus supplement, they will not limit the
amount of other unsecured debt or securities we may incur or issue. We may
issue debt securities under either indenture from time to time in one or more
series, each in an amount we authorize prior to issuance.
We conduct our operations through our subsidiaries, and they generate
substantially all our operating income and cash flow. As a result,
distributions or advances from our subsidiaries are important sources of funds
to meet our debt service obligations. Contractual provisions or laws, as well
as our subsidiaries' financial condition and operating requirements, may limit
our ability to obtain from our subsidiaries cash that we need to pay our debt
service obligations, including payments on the debt securities. In addition,
holders of the debt securities will have a position junior to the claims of
creditors of our subsidiaries on their assets and earnings.
Unless we inform you otherwise in the prospectus supplement, the indentures
and the debt securities will not contain:
. any covenants or other provisions designed to protect holders of the
debt securities in the event we participate in a highly leveraged
transaction; or
. provisions that give holders of the debt securities the right to
require us to repurchase their securities in the event of a decline in
our credit rating resulting from a takeover, recapitalization or
similar restructuring or otherwise.
The prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
. the title of the debt securities;
. the total principal amount of the debt securities;
. whether the debt securities are senior debt securities or subordinated
debt securities;
. whether we will issue the debt securities in individual certificates
to each holder or in the form of temporary or permanent global
securities held by a depositary on behalf of holders;
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. the date or dates on which the principal of and any premium on the
debt securities will be payable;
. any interest rate, the date from which interest will accrue, interest
payment dates and record dates for interest payments;
. whether and under what circumstances any additional amounts with
respect to the debt securities will be payable;
. the place or places where payments on the debt securities will be
payable;
. any provisions for redemption or early repayment;
. any sinking fund or other provisions that would obligate us to redeem,
purchase or repay the debt securities prior to maturity;
. the denominations in which we may issue the debt securities;
. whether payments on the debt securities will be payable in foreign
currency or currency units or another form, and whether payments will
be payable by reference to any index or formula;
. the portion of the principal amount of the debt securities that will
be payable if the maturity is accelerated, if other than the entire
principal amount;
. any additional means of defeasance of the debt securities, any
additional conditions or limitations to defeasance of the debt
securities or any changes in those conditions or limitations;
. any changes in or additions to the events of default or covenants this
prospectus describes;
. any restrictions or other provisions relating to the transfer or
exchange of the debt securities;
. any terms for the conversion or exchange of the debt securities for
other securities issued by U.S. Concrete or any other entity; and
. any other terms of the debt securities.
We may sell the debt securities at a discount, which may be substantial,
below their stated principal amount. Those debt securities may bear no interest
or interest at a rate that at the time of issuance is below market rates.
If we sell any of the debt securities for any foreign currency or currency
unit or if payments on the debt securities are payable in any foreign currency
or currency unit, we will describe in the prospectus supplement the
restrictions, elections, tax consequences, specific terms and other information
relating to those debt securities and the foreign currency or currency unit.
Subordination
Under the subordinated indenture, payment of the principal, interest and
any premium on the subordinated debt securities will generally be subordinated
and junior in right of payment to the prior payment in full of all Senior Debt.
Unless we inform you otherwise in the prospectus supplement, we may not make any
payment of principal, interest or any premium on the subordinated debt
securities if:
. we fail to pay the principal, interest, premium or any other amounts
on any Senior Debt when due; or
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. we default in performing any other covenant (a "covenant default") in
any Senior Debt that we have designated if the covenant default allows
the holders of that Senior Debt to accelerate the maturity of the
Senior Debt they hold.
Unless we inform you otherwise in the prospectus supplement, a covenant
default will prevent us from making payments on the subordinated debt securities
only for up to 179 days after holders of the Senior Debt give the trustee for
the subordinated debt securities notice of the covenant default.
The subordination provisions will not affect our obligation, which will be
absolute and unconditional, to pay, when due, principal of, premium, if any, and
interest on the subordinated debt securities. In addition, the subordination
provisions will not prevent the occurrence of any default under the subordinated
indenture.
Unless we inform you otherwise in the prospectus supplement, the
subordinated indenture will not limit the amount of Senior Debt that we may
incur. As a result of the subordination of the subordinated debt securities, if
we became insolvent, holders of subordinated debt securities may receive less on
a proportionate basis than our other creditors.
Unless we inform you otherwise in the prospectus supplement, "Senior Debt"
will mean all notes or other indebtedness, including guarantees, of U.S.
Concrete for money borrowed and similar obligations, unless the indebtedness
states that it is not senior to the subordinated debt securities or our other
junior debt.
Consolidation, Merger and Sale of Assets
The indentures generally will permit a consolidation or merger between us
and another entity. They also will permit the sale by us of our assets
substantially as an entirety to a single entity. The indentures will provide,
however, that we may consolidate with another entity to form a new entity or
merge into any other entity or transfer or dispose of our assets substantially
as an entirety to any other entity only if:
. the resulting entity is organized and existing under the laws of any
United States jurisdiction and assumes the due and punctual payments
on the debt securities and the performance of our covenants and
obligations under the applicable indenture and the debt securities;
and
. immediately after giving effect to the transaction, no default or
event of default would occur and be continuing.
Events of Default
Unless we inform you otherwise in the prospectus supplement, the following
will be events of default with respect to a series of debt securities:
. our failure to pay interest or any required additional amounts on any
debt securities of that series for 30 days;
. our failure to pay principal of or any premium on any debt securities
of that series when due;
. our failure to deposit any mandatory sinking fund payment for that
series of debt securities for 30 days;
. our failure to comply with any of our covenants or agreements in the
debt securities of that series or the applicable indenture, other than
an agreement or covenant that we have included in that indenture
solely for the benefit of other series of debt securities, for 90 days
after written notice by the trustee or by the holders of at least 25%
in principal amount of all the outstanding debt securities issued
under that Indenture that are affected by that failure;
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. certain events involving bankruptcy, insolvency or reorganization of
U.S. Concrete; and
. any other event of default provided for that series of debt
securities.
A default under one series of debt securities will not necessarily be a
default under another series. The trustee may withhold notice to the holders of
the debt securities of any default or event of default, except in any payment on
the debt securities, if the trustee in good faith determines that withholding
notice is in the interest of the holders of the debt securities.
If an event of default for any series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of the series affected by the default (or, in
some cases, 25% in principal amount of all senior debt securities or
subordinated debt securities affected, voting as one class) may declare the
principal of and all accrued and all unpaid interest on those debt securities to
be due and payable. If an event of default relating to events of bankruptcy,
insolvency or reorganization occurs, the principal of and all accrued and unpaid
interest on all the debt securities will become immediately due and payable
without any action on the part of the applicable trustee or any holder. The
holders of a majority in principal amount of the outstanding debt securities of
the series affected by the default (or of all senior debt securities or
subordinated debt securities affected, voting as one class) may in some cases
rescind this accelerated payment requirement. Depending on the terms of our
other indebtedness, an event of default under either of the indentures may give
rise to cross defaults on our other indebtedness.
A holder of a debt security of any series will be able to pursue any remedy
under the applicable indenture only if:
. the holder gives the trustee written notice of a continuing event of
default for that series;
. the holders of at least 25% in principal amount of the outstanding
debt securities of that series make a written request to the trustee
to pursue the remedy;
. the holder or holders offer to the trustee indemnity reasonably
satisfactory to it,
. the trustee fails to act for a period of 60 days after receipt of
notice and offer of indemnity; and
. during that 60-day period, the holders of a majority in principal
amount of the debt securities of that series do not give the trustee a
direction inconsistent with the request.
This provision will not, however, affect the right of a holder of a debt
security to sue for enforcement of any overdue payment.
In most cases, holders of a majority in principal amount of the outstanding
debt securities of a series (or of all debt securities affected, voting as one
class) will be able to direct the time, method and place of:
. conducting any proceeding for any remedy available to the applicable
trustee; and
. exercising any trust or power conferred on the applicable trustee not
relating to or arising in respect of an event of default.
Each indenture will require us to file with the trustee each year a written
statement as to our compliance with the covenants that indenture contains.
Modification and Waiver
We may amend or supplement either indenture if the holders of a majority in
principal amount of the outstanding debt securities of all series issued under
the applicable indenture and affected by the amendment or
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supplement, acting as one class, consent to it. Without the consent of the
holder of each debt security affected, however, no amendment or supplement may:
. reduce the amount of debt securities whose holders must consent to an
amendment, supplement or waiver;
. reduce the rate of or change the time for payment of interest on any
debt security;
. reduce the principal of, premium on or any mandatory sinking fund
payment for any debt security;
. change the stated maturity of any debt security;
. reduce any premium payable on the redemption of any debt security or
change the time at which any debt security may or must be redeemed;
. change any obligation to pay additional amounts on any debt security;
. make the payments on any debt security payable in any currency or
currency unit other than as the debt security originally states;
. impair the holder's right to institute suit for the enforcement of any
payment on any debt security;
. make any change in the percentage of principal amount of debt
securities necessary to waive compliance with specified provisions of
the applicable indenture or to make any change in the applicable
indenture's provisions for modification;
. waive a continuing default or event of default regarding any payment
on any debt security; or
. with respect to the subordinated indenture, modify the provisions
relating to the subordination of any subordinated debt security in a
manner adverse to the holder of that security.
We and the applicable trustee may agree to amend or supplement either
indenture or waive any provision of either indenture without the consent of any
holders of debt securities in some circumstances, including:
. to cure any ambiguity, omission, defect or inconsistency;
. to provide for the assumption of our obligations under the indenture
by a successor on any merger, consolidation or asset transfer;
. to provide for uncertificated debt securities in addition to or in
place of certificated debt securities or to provide for bearer debt
securities;
. to provide any security for or add guarantees of any series of debt
securities;
. to comply with any requirement to effect or maintain the qualification
of the indenture under the Trust Indenture Act of 1939;
. to add covenants that would benefit the holders of any debt securities
or to surrender any rights we have under the indenture;
. to add events of default with respect to any debt securities;
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. to make any change that does not adversely affect any outstanding debt
securities of any series in any material respect;
. to facilitate the defeasance or discharge of any series of debt
securities if that change does not adversely affect the holders of
debt securities of that series or any other series under the indenture
in any material respect; and
. to provide for the acceptance of a successor or another trustee.
The holders of a majority in principal amount of the outstanding debt
securities of any series (or of all senior debt securities or subordinated debt
securities affected, voting as one class) may waive any existing or past default
or event of default with respect to those debt securities. Those holders may
not, however, waive any default or event of default in any payment on any debt
security or compliance with a provision that cannot be amended or supplemented
without the consent of each holder affected.
Defeasance
When we use the term "defeasance," we mean discharge from some or all of
our obligations under an indenture. If we deposit with the applicable trustee
funds or government securities sufficient to make payments on the debt
securities of a series on the dates those payments are due and payable, then, at
our option, either of the following will occur:
. we will be discharged from our obligations with respect to the debt
securities of that series ("legal defeasance"); or
. we will no longer have any obligation to comply with the restrictive
covenants under the applicable indenture, and the related events of
default will no longer apply to us, but some of our other obligations
under the indenture and the debt securities of that series, including
our obligation to make payments on those debt securities, will survive
("covenant defeasance").
If we defease a series of debt securities, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
applicable indenture, except for our obligations to:
. register the transfer or exchange of debt securities;
. replace stolen, lost or mutilated debt securities; and
. maintain paying agencies and hold moneys for payment in trust.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the applicable trustee an opinion of counsel that the
deposit and related defeasance would not cause the holders of the debt
securities to recognize income, gain or loss for United States federal income
tax purposes. If we elect legal defeasance, that opinion of counsel must be
based on a ruling from the United States Internal Revenue Service or a change in
law to that effect.
Governing Law
New York law will govern the indentures and the debt securities.
Trustee
If an event of default occurs and is continuing, the trustee must use the
degree of care and skill of a prudent person in the conduct of his own affairs.
The trustee will become obligated to exercise any of its powers under the
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indenture at the request of any of the holders of any debt securities only after
those holders have offered the trustee indemnity reasonably satisfactory to it.
Each indenture will limit the right of the trustee, if it is one of our
creditors, to obtain payment of claims or to realize on certain property
received for any such claim, as security or otherwise. The trustee may engage
in other transactions with us. If it acquires any conflicting interest,
however, it must eliminate that conflict or resign.
Form, Exchange, Registration and Transfer
If we issue the debt securities in registered form, we will not charge a
service charge for any registration of transfer or exchange of those securities.
We may, however, require the payment of any tax or other governmental charge
payable for that registration.
Debt securities of any series will be exchangeable for other debt
securities of the same series with the same total principal amount and the same
terms but in different authorized denominations in accordance with the
applicable indenture. Holders may present registered debt securities for
registration of transfer at the office of the security registrar or any transfer
agent we designate. The security registrar or transfer agent will effect the
transfer or exchange when it is satisfied with the documents of title and
identity of the person making the request.
Unless we inform you otherwise in the prospectus supplement, we will
appoint the trustee under each indenture as security registrar for the debt
securities we issue in registered form under that indenture. If the prospectus
supplement refers to any transfer agents initially designated by us, we may at
any time rescind that designation or approve a change in the location through
which any transfer agent acts. We will be required to maintain an office or
agency for transfers and exchanges in each place of payment. We may at any time
designate additional transfer agents for any series of debt securities or
rescind the designation of any transfer agent.
In the case of any redemption, neither the security registrar nor the
transfer agent will be required to register the transfer or exchange of any debt
security:
. during a period beginning 15 business days before the day of mailing
of the relevant notice of redemption and ending on the close of
business on that day of mailing; or
. if we have called the debt security for redemption in whole or in
part, except the unredeemed portion of any debt security being
redeemed in part.
Payment and Paying Agents
Unless we inform you otherwise in the prospectus supplement, we will make
payments on the debt securities in U.S. dollars at the office of the applicable
trustee or any paying agent we designate. At our option, we may make payments
by check mailed to the holder's registered address or, with respect to global
debt securities, by wire transfer. Unless we inform you otherwise in the
prospectus supplement, we will make interest payments to the person in whose
name the debt security is registered at the close of business on the record date
for the interest payment.
Unless we inform you otherwise in the prospectus supplement, we will
designate the trustee under each indenture as our paying agent for payments on
debt securities we issue under that indenture. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts.
Subject to the requirements of any applicable abandoned property laws, the
trustee and paying agent will repay to us on our written request any funds they
hold for payments on the debt securities that remain unclaimed for two years
after the date upon which that payment has become due. After repayment to us,
holders entitled to those funds must look only to us for payment.
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Book-entry Debt Securities
We may issue the debt securities of a series in the form of one or more
global debt securities that would be deposited with a depositary or its nominee
identified in the prospectus supplement. We may issue global debt securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security.
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Description of Capital Stock
Our authorized capital stock consists of:
. 60,000,000 shares of common stock; and
. 10,000,000 shares of preferred stock, issuable in series.
Each authorized share has a par value of $.001. As of December 31, 2001,
26,549,830 shares of common stock were issued and outstanding. Also as of
December 31, 2001, no shares of our preferred stock were issued and outstanding.
In the discussion that follows, we have summarized selected provisions of
our certificate of incorporation, as amended, and our amended and restated
bylaws relating to our capital stock. You should read the provisions of our
certificate of incorporation and bylaws as currently in effect for more details
regarding the provisions we describe below and for other provisions that may be
important to you. We have filed copies of those documents with the SEC, and
they are incorporated by reference as exhibits to the registration statement.
Please read "Where You Can Find More Information."
Common Stock
Each share of common stock has one vote in the election of each director
and on other corporate matters, other than any matter that (1) solely relates to
the terms of any outstanding series of preferred stock or the number of shares
of that series and (2) does not affect the number of authorized shares of
preferred stock or the powers, privileges and rights pertaining to the common
stock. No share of common stock affords any cumulative voting rights. This
means that the holders of a majority of the voting power of the shares voting
for the election of directors can elect all directors to be elected if they
choose to do so. Our board of directors may grant holders of preferred stock,
in the resolutions creating the series of preferred stock, the right to vote on
the election of directors or any questions affecting us.
Holders of common stock will be entitled to dividends in such amounts and
at such times as our board of directors in its discretion may declare out of
funds legally available for the payment of dividends. We currently intend to
retain our entire available discretionary cash flow to finance the growth,
development and expansion of our business and do not anticipate paying any cash
dividends on the common stock in the foreseeable future. Any future dividends
will be at the discretion of our board of directors after taking into account
various factors, including:
. our financial condition and performance;
. our cash needs and expansion plans;
. our obligations to holders of any preferred stock we may issue;
. income tax consequences; and
. the restrictions Delaware and other applicable laws and our credit
arrangements then impose.
In addition, the terms of our principal credit facility prohibit the payment of
cash dividends.
If we liquidate or dissolve our business, the holders of common stock will
share ratably in all assets available for distribution to stockholders after our
creditors are paid in full and the holders of all series of our outstanding
preferred stock, if any, receive their liquidation preferences in full.
The common stock has no preemptive rights and is not convertible or
redeemable or entitled to the benefits of any sinking or repurchase fund. All
issued and outstanding shares of common stock are fully paid and
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nonassessable. Any shares of common stock we offer and sell under this
prospectus will also be fully paid and nonassessable.
The common stock is quoted on the Nasdaq National Market under the symbol
"RMIX."
Preferred Stock
At the direction of our board of directors, without any action by the
holders of common stock, we may issue one or more series of preferred stock from
time to time. Our board of directors can determine the number of shares of each
series of preferred stock and the rights, preferences, privileges and
restrictions, including dividend rights, voting rights, conversion or exchange
rights, terms of redemption and liquidation preferences, of each series.
The prospectus supplement relating to any series of preferred stock we
offer will include specific terms relating to the offering. These terms will
include some or all of the following:
. the series designation of the preferred stock;
. the maximum number of shares of the series;
. the dividend rate (or the method of calculating the dividend), the
date from which dividends will accrue and whether dividends will be
cumulative;
. any liquidation preference;
. any optional redemption provisions;
. any sinking fund or other provisions that would obligate us to redeem
or repurchase the preferred stock;
. any terms for the conversion or exchange of the preferred stock for
any other securities;
. any voting rights; and
. any other preferences and relative, participating, optional or other
special rights or any qualifications, limitations or restrictions on
the rights of the shares.
Any preferred stock we offer and sell under this prospectus will be fully
paid and nonassessable.
The description of the terms of the preferred stock to be set forth in an
applicable prospectus supplement will not be complete and will be subject to and
qualified by the certificate of designation relating to the applicable series of
preferred stock. The registration statement will include the certificate of
designation as an exhibit or will incorporate the certificate of designation by
reference. You should read that document for provisions that may be important
to you.
Undesignated preferred stock may enable our board of directors to render
more difficult or to discourage an attempt to obtain control of us by means of a
tender offer, proxy contest, merger or otherwise, and to thereby protect the
continuity of our management. The issuance of shares of preferred stock may
adversely affect the rights of the holders of common stock. For example, any
preferred stock issued may rank prior to the common stock as to dividend rights,
liquidation preference or both, may have full or limited voting rights and may
be convertible into shares of common stock. As a result, the issuance of shares
of preferred stock may discourage bids for common stock or may otherwise
adversely affect the market price of the common stock or any existing preferred
stock.
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Stockholder Rights Plan
On May 10, 1999, we entered into a rights agreement with American Stock
Transfer & Trust Company, as rights agent, providing for the issuance of
preferred stock purchase rights to holders of common stock. Under the plan, each
share of common stock currently includes one right to purchase from us a unit
consisting of one one-hundredth of a share of our Series A junior participating
preferred stock at an exercise price of $35.00 per unit, subject to adjustment.
We have summarized selected provisions of the rights agreement below. You
should read the rights agreement for more details regarding the provisions we
describe below and for other provisions that may be important to you. We have
filed a copy of the rights agreement with the SEC, and it is incorporated by
reference as an exhibit to the registration statement. Please read "Where You
Can Find More Information."
The rights are attached to all certificates representing our currently
outstanding common stock and will attach to all common stock certificates we
issue prior to the "rights distribution date." That date would occur, except in
some cases, on the earlier of:
. 10 days following a public announcement that a person or group of
affiliated or associated persons (collectively, an "acquiring person")
has acquired or obtained the right to acquire beneficial ownership of
15% or more of the outstanding shares of common stock; or
. 10 business days following the start of a tender or exchange offer
that would result, if closed, in a person's becoming an acquiring
person.
Our board of directors may defer the rights distribution date in some
circumstances, and some inadvertent acquisitions will not result in a person
becoming an acquiring person if the person promptly divests itself of sufficient
common stock.
Until the rights distribution date:
. common stock certificates will evidence the rights;
. the rights will be transferable only with those certificates;
. those certificates will contain a notation incorporating the rights
agreement by reference; and
. the surrender for transfer of any of those certificates also will
constitute the transfer of the rights associated with the stock that
certificate represents.
The rights are not exercisable until after the rights distribution date and
will expire at the close of business on April 30, 2009, unless we earlier redeem
or exchange them as we describe below.
As soon as practicable after the rights distribution date, the rights agent
will mail certificates representing the rights to holders of record of common
stock as of the close of business on that date and, from and after that date,
only separate rights certificates will represent the rights.
We will not issue rights with any shares of common stock we issue after the
rights distribution date, except (1) as our board of directors otherwise may
determine and (2) together with shares of common stock we issue as a result of
previously established incentive plans or convertible securities.
A "flip-in event" will occur under the rights agreement when a person
becomes an acquiring person otherwise than as a result of a "permitted offer."
The rights agreement defines "permitted offer" to mean a tender or exchange
offer for all outstanding shares of common stock at a price and on terms that a
majority of the independent members of our board of directors determines to be
fair to and otherwise in our best interests and the best interests of our
stockholders.
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If a flip-in event occurs, our board of directors may, at any time until 10
days after the public announcement that a person has become an acquiring person,
cause us to redeem the rights in whole, but not in part, at a redemption price
of $.01 per right, subject to adjustment for any stock split, stock dividend or
similar transaction occurring before the date of redemption. At our option, we
may pay that redemption price in cash, shares of common stock or any other
consideration our board of directors selects. The rights will not be
exercisable after a flip-in event until they are no longer redeemable. If our
board of directors timely orders the redemption of the rights, the rights will
terminate on the effectiveness of that action.
If a flip-in event occurs and we do not redeem the rights, each right,
other than any right that has become null and void as we describe below, will
become exercisable, at the time we no longer may redeem it, to receive the
number of shares of common stock (or, in some cases, cash, property or other of
our securities) which has a "current market price" (as the rights agreement
defines that term) equal to two times the exercise price of the right.
When a flip-in event occurs, all rights that then are, or under the
circumstances the rights agreement specifies previously were, beneficially owned
by an acquiring person or specified related parties will become null and void in
the circumstances the rights agreement specifies.
A "flip-over event" will occur under the rights agreement when, at any time
from and after the time a person becomes an acquiring person, (1) we are
acquired in a merger or other business combination transaction, other than
specified mergers that follow a permitted offer of the type we describe above,
or (2) 50% or more of our assets or earning power is sold or transferred. If a
flip-over event occurs, each holder of a right (except rights that previously
have become void as we describe above) thereafter will have the right to
receive, on exercise of that right, the number of shares of common stock of the
acquiring company which has a current market price equal to two times the
exercise price of the right.
The number of outstanding rights associated with a share of common stock,
the number of fractional shares of junior participating preferred stock issuable
on exercise of a right and the exercise price of the rights are subject to
adjustment in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the common stock occurring prior to the rights distribution
date. The exercise price of the rights and the number of fractional shares of
junior participating preferred stock or other securities or property issuable on
exercise of the rights also are subject to adjustment from time to time to
prevent dilution in the event of some transactions affecting the junior
participating preferred stock.
With some exceptions, the rights agreement will not require us to adjust
the exercise price of the rights until cumulative adjustments amount to at least
1% of that exercise price. It also will not require us to issue fractional
shares of junior participating preferred stock that are not integral multiples
of one one-hundredth, and, in lieu thereof, we will make a cash adjustment based
on the market price of the junior participating preferred stock on the last
trading date prior to the date of exercise. The rights agreement reserves to us
the right to require prior to the occurrence of any flip-in event or flip-over
event that, on any exercise of rights, a number of rights must be exercised so
that we will issue only whole shares of junior participating preferred stock.
At any time after the occurrence of a flip-in event and prior to a person's
becoming the beneficial owner of 50% or more of the shares of common stock then
outstanding or the occurrence of a flip-over event, we may, at our option,
exchange the rights (other than rights owned by an acquiring person or an
affiliate or an associate of an acquiring person, which will have become void),
in whole or in part, at an exchange ratio of one share of common stock, and/or
other equity securities we deem to have the same value as one share of common
stock, per right, subject to adjustment.
During the time we may redeem the rights, we may, at the direction of our
board of directors, amend any of the provisions of the rights agreement other
than the redemption price. Thereafter, we may amend the provisions of the
rights agreement, other than the redemption price, only as follows:
. to cure any ambiguity, defect or inconsistency;
23
. to make changes that do not materially adversely affect the interests
of holders of rights, excluding the interests of any acquiring person;
or
. to shorten or lengthen any time period under the rights agreement;
provided, however, that we cannot lengthen the time period governing
redemption if the rights are no longer redeemable.
Until a right is exercised, the holder thereof, as such, will have no
rights to vote or receive dividends or any other rights as a stockholder.
The rights have anti-takeover effects. They will cause severe dilution to
any person or group that attempts to acquire us without the approval of our
board of directors. As a result, the overall effect of the rights may be to
render more difficult or discourage any attempt to acquire us, even if the
acquisition may be favorable to the interests of our stockholders. Because our
board of directors can redeem the rights or approve a permitted offer, the
rights should not interfere with a merger or other business combination our
board of directors approves.
Limitation on Directors' Liability
Delaware law authorizes Delaware corporations to limit or eliminate the
personal liability of their directors to them and their stockholders for
monetary damages for breach of a director's fiduciary duty of care. The duty of
care requires that, when acting on behalf of the corporation, directors must
exercise an informed business judgment based on all material information
reasonably available to them. Absent the limitations Delaware law authorizes,
directors of Delaware corporations are accountable to those corporations and
their stockholders for monetary damages for conduct constituting gross
negligence in the exercise of their duty of care. Delaware law enables Delaware
corporations to limit available relief to equitable remedies such as injunction
or rescission. Our certificate of incorporation limits the liability of our
directors to us or our stockholders to the fullest extent Delaware law permits.
Specifically, no member of our board of directors will be personally liable for
monetary damages for any breach of the member's fiduciary duty as a director,
except for liability:
. for any breach of the member's duty of loyalty to us or our
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; and
. for any transaction from which the member derived an improper personal
benefit.
This provision could have the effect of reducing the likelihood of
derivative litigation against our directors and may discourage or deter our
stockholders or management from bringing a lawsuit against our directors for
breach of their duty of care, even though such an action, if successful, might
otherwise have benefited our stockholders and us. Our bylaws provide
indemnification to our officers and directors and other specified persons with
respect to their conduct in various capacities, and we have entered into
agreements with each of our directors and executive officers which indemnify
them to the fullest extent Delaware law and our certificate of incorporation
permit.
Statutory Business Combination Provision
As a Delaware corporation, we are subject to Section 203 of the Delaware
General Corporation Law. In general, Section 203 prevents an "interested
stockholder," which is defined generally as a person owning 15% or more of a
Delaware corporation's outstanding voting stock or any affiliate or associate of
that person, from engaging in a broad range of "business combinations" with the
corporation for three years following the date that person became an interested
stockholder unless:
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. before that person became an interested stockholder, the board of
directors of the corporation approved the transaction in which that
person became an interested stockholder or approved the business
combination;
. on completion of the transaction that resulted in that person's
becoming an interested stockholder, that person owned at least 85% of
the voting stock of the corporation outstanding at the time the
transaction commenced, other than stock held by (1) directors who are
also officers of the corporation or (2) any employee stock plan that
does not provide employees with the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender
or exchange offer; or
. following the transaction in which that person became an interested
stockholder, both the board of directors of the corporation and the
holders of at least two-thirds of the outstanding voting stock of the
corporation not owned by that person approve the business combination.
Under Section 203, the restrictions described above also do not apply to
specific business combinations proposed by an interested stockholder following
the announcement or notification of designated extraordinary transactions
involving the corporation and a person who had not been an interested
stockholder during the previous three years or who became an interested
stockholder with the approval of a majority of the corporation's directors, if a
majority of the directors who were directors prior to any person's becoming an
interested stockholder during the previous three years, or were recommended for
election or elected to succeed those directors by a majority of those directors,
approve or do not oppose that extraordinary transaction.
Other Matters
Some of the provisions of our certificate of incorporation and bylaws
discussed below may have the effect, either alone or in combination with the
provisions of Section 203 of the Delaware General Corporation Law, of making
more difficult or discouraging a tender offer, proxy contest or other takeover
attempt that our board of directors opposes but that a stockholder might
consider to be in its best interest.
Our certificate of incorporation provides that our stockholders may act
only at an annual or special meeting of stockholders and may not act by written
consent. Our bylaws provide that only the chairman of our board of directors or
a majority of the board may call a special meeting of our board of directors or
of our stockholders.
Our certificate of incorporation provides for a classified board of
directors. Except for directors that the holders of preferred stock may elect,
our board of directors is divided into three classes, with the directors of each
class as nearly equal in number as possible. At each annual meeting of our
stockholders, the term of a different class of our directors will expire. As a
result, we contemplate that stockholders will elect approximately one-third of
our board of directors each year. Board classification could prevent a party
who acquires control of a majority of our outstanding voting stock from
obtaining control of our board of directors until the second annual
stockholders' meeting following the date that party obtains that control.
Our certificate of incorporation provides that the number of directors will
be as the board of directors determines from time to time, but will not be less
than three. It also provides that directors may be removed only for cause and
then only by the affirmative vote of the holders of at least a majority of all
outstanding voting stock entitled to vote. This provision, along with the
provisions authorizing the board of directors to fill vacant directorships, will
prevent stockholders from removing incumbent directors without cause and filling
the resulting vacancies with their own nominees.
Stockholder Proposals
Our bylaws contain advance-notice and other procedural requirements that
apply to stockholder nominations of persons for election to the board of
directors at any annual or special meeting of stockholders and to stockholder
proposals that stockholders take any other action at any annual meeting. In the
case of any annual meeting, a stockholder proposing to nominate a person for
election to the board of directors or proposing that any
25
other action be taken must give our corporate secretary written notice of the
proposal not less than 90 days and not more than 180 days before the anniversary
date of the immediately preceding annual meeting. These stockholder proposal
deadlines are subject to exceptions if the pending annual meeting date differs
by more than specified periods from that anniversary date. If the chairman of
our board of directors or a majority of the board of directors calls a special
meeting of stockholders for the election of directors, a stockholder proposing
to nominate a person for that election must give our corporate secretary written
notice of the proposal not earlier than 180 days prior to that special meeting
and not later than the last to occur of (1) 90 days prior to that special
meeting or (2) the 10th day following the day we publicly disclose the date of
the special meeting. Our bylaws prescribe the specific information any advance
written stockholder notice must contain.
The advance-notice procedure may have the effect of precluding a contest
for the election of directors or the consideration of stockholder proposals if
the proper procedures are not followed, and of discouraging or deterring a third
party from conducting a solicitation of proxies to elect its own slate of
directors or to approve its own proposal, without regard to whether
consideration of those nominees or proposals might be harmful or beneficial to
our company and our stockholders.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is American Stock
Transfer & Trust Company.
Description of Warrants
We may issue warrants to purchase debt securities, common stock, preferred
stock or other securities. We may issue warrants independently or together with
other securities. Warrants we sell with other securities may be attached to or
separate from those other securities. If we issue warrants, we will do so under
one or more warrant agreements between us and a warrant agent that we will name
in the prospectus supplement.
We have summarized selected provisions of the warrants below. If we offer
any warrants, we will file the forms of warrant certificate and warrant
agreement with the SEC, and you should read those documents for provisions that
may be important to you.
The prospectus supplement relating to any warrants being offered will
include specific terms relating to the offering. These terms will include some
or all of the following:
. the title of the warrants;
. the aggregate number of warrants offered;
. the designation, number and terms of the debt securities, common
stock, preferred stock or other securities purchasable on exercise of
the warrants, and procedures that may result in the adjustment of
those numbers;
. the exercise price of the warrants;
. the dates or periods during which the warrants are exercisable;
. the designation and terms of any securities with which the warrants
are issued;
. if the warrants are issued as a unit with another security, the date
on and after which the warrants and the other security will be
separately transferable;
. if the exercise price is not payable in U.S. dollars, the foreign
currency, currency unit or composite currency in which the exercise
price is denominated;
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. any minimum or maximum amount of warrants that may be exercised at any
one time;
. any terms, procedures and limitations relating to the transferability,
exchange or exercise of the warrants; and
. any other terms of the warrants.
Warrant certificates will be exchangeable for new warrant certificates of
different denominations at the office indicated in the prospectus supplement.
Prior to the exercise of their warrants, holders of warrants will not have any
of the rights of holders of the securities subject to the warrants.
Modifications
We may amend the warrant agreements and the warrants without the consent of
the holders of the warrants to cure any ambiguity, to cure, correct or
supplement any defective or inconsistent provision, or in any other manner that
will not materially and adversely affect the interests of holders of outstanding
warrants.
We may also modify or amend various other terms of the warrant agreements
and the warrants with the consent of the holders of not less than a majority in
number of the then outstanding unexercised warrants affected. Without the
consent of the holders affected, however, no modification or amendment may:
. shorten the period of time during which the warrants may be exercised;
or
. otherwise materially and adversely affect the exercise rights of the
holders of the warrants.
Enforceability of Rights
The warrant agent will act solely as our agent. The warrant agent will not
have any duty or responsibility if we default under the warrant agreements or
the warrant certificates. A warrant holder may, without the consent of the
warrant agent, enforce by appropriate legal action on its own behalf the
holder's right to exercise the holder's warrants.
27
Plan of Distribution
We may sell the offered securities in and outside the United States (1)
through underwriters or dealers, (2) directly to purchasers or (3) through
agents. The prospectus supplement will set forth the following information:
. the terms of the offering;
. the names of any underwriters or agents;
. the name or names of any managing underwriter or underwriters;
. the purchase price of the securities from us;
. the net proceeds we will receive from the sale of the securities;
. any delayed delivery arrangements;
. any underwriting discounts, commissions and other items constituting
underwriters' compensation;
. any initial public offering price;
. any discounts or concessions allowed or reallowed or paid to dealers;
and
. any commissions paid to agents.
Sale Through Underwriters or Dealers
If we use underwriters in the sale of the offered securities, the
underwriters will acquire the securities for their own account. The
underwriters may resell the securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Underwriters may
offer securities to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. Unless we inform you otherwise in the prospectus
supplement, the obligations of the underwriters to purchase the securities will
be subject to several conditions, and the underwriters will be obligated to
purchase all the offered securities if they purchase any of them. The
underwriters may change from time to time any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
If we use underwriters in the sale of the offered securities, rules of the
SEC may limit the ability of the underwriters and certain selling group members
to bid for and purchase our securities until the distribution of the offered
securities is completed. As an exception to these rules, the underwriters are
permitted to engage in certain transactions that stabilize, maintain or
otherwise affect the price of the offered securities.
In connection with an underwritten offering, the underwriters may make
short sales of the offered securities and may purchase our securities on the
open market to cover positions created by short sales. Short sales involve the
sale by the underwriters of a greater number of securities than they are
required to purchase in the offering. "Covered" short sales are made in an
amount not greater than the over-allotment option we may grant to the
underwriters in connection with the offering. The underwriters may close out
any covered short position by either exercising the over-allotment option or
purchasing our securities in the open market. In determining the source of
securities to close out the covered short position, the underwriters will
consider, among other things, the price of securities available for purchase in
the open market as compared to the price at which they may purchase securities
through the over-allotment option. "Naked" short sales are sales in excess of
the over-allotment option. The underwriters must close out any naked short
position by purchasing our securities in the open market. A naked short
position is more likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the securities in the open market
after pricing that could adversely affect investors who purchase in the
offering.
The underwriters may also impose a penalty bid on certain selling group
members. This means that if the underwriters purchase our securities in the
open market to reduce the selling group members' short position or to stabilize
the price of the securities, they may reclaim the amount of the selling
concession from the selling group members who sold those securities as part of
the offering.
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In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of those purchases or those purchases could prevent
or retard a decline in the price of the security. The imposition of a penalty
bid might also have an effect on the price of a security to the extent that it
were to discourage resales of the security.
Neither we nor the underwriters will make any representation or prediction
as to the direction or magnitude of any effect that the transactions we describe
above may have on the price of the offered securities. In addition, neither we
nor the underwriters will make any representation that the underwriters will
engage in these transactions or that these transactions, once commenced, will
not be discontinued without notice.
If we use dealers in the sale of securities, we will sell the securities to
them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the prospectus supplement the names of the dealers and the terms of the
transaction.
We may also sell shares of our common stock through Ramius Securities, LLC
under the underwriting agreement we describe below under "Existing Underwriting
Arrangement."
Direct Sales and Sales Through Agents
We may sell the securities directly. In that event, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the offered securities, and we will
describe any commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to use its
reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale of those securities. We will describe the terms
of any such sales in the prospectus supplement.
Existing Underwriting Arrangement
We have entered into a Flexible Underwritten Equity FaciLity (FUEL(R))
Agreement, dated as of January 7, 2002, with Ramius Securities LLC, as
underwriter. We have summarized that agreement below. In the following
discussion, we refer to that agreement as the underwriting agreement. You
should read the underwriting agreement for more details regarding the provisions
we describe below and for other provisions that may be important to you. We
have filed a copy of the underwriting agreement with the SEC, and it is
incorporated by reference as an exhibit to the registration statement. Please
read "Where You Can Find More Information."
Under the underwriting agreement, we may issue and sell through the
underwriter shares of our common stock from time to time until January 7, 2004,
or until the earlier termination of the underwriting agreement under the
termination provisions we describe below. The underwriting agreement does not
obligate us to sell any shares of common stock through the underwriter. If we
elect to sell shares of common stock under the underwriting agreement, we may
issue and sell an aggregate number of shares, in a series of capital raising
periods (each consisting of ten trading days), that results in up to a maximum
of $12,255,168 in aggregate gross proceeds to us, provided that the total amount
of common stock we may offer and sell under the underwriting agreement will not
exceed 1,800,000 shares. During each capital raising period, we may elect to
issue and sell a number of shares of common stock with an aggregate value of not
less than $1,500,000 and not more than $6,000,000 by giving the underwriter a
capital demand notice. In each capital demand notice, we will specify a minimum
offering price per share at which we are willing to sell the shares of common
stock being offered.
After we deliver a capital demand notice and subject to the satisfaction of
the conditions we describe below, the underwriter (1) will be obligated to sell
a portion of the shares of common stock to be offered pursuant to the capital
demand notice on a firm-commitment basis and (2) will offer the remaining shares
to be offered pursuant to that capital demand notice on a best-efforts basis.
The number of shares to be sold on a firm-commitment basis will equal the number
of shares whose proceeds equal the lesser of (1) the sum of the qualified daily
trading limit for
29
each trading day during the capital raising period or (2) $1,000,000. The
qualified daily trading limit for any trading day will generally be the lesser
of 10% of the dollar amount of the net proceeds we request in the capital demand
notice or 15% of the dollar trading volume of our common stock (excluding block
trades of more than 5,000 shares) traded at or above the minimum offering price
on that trading day. The underwriter may elect to reduce the number of shares to
be sold on a firm-commitment basis to zero, if the volume weighted average price
per share of our common stock is below the minimum offering price we specify in
the capital demand notice for any four consecutive trading days during the
capital raising period. In addition, the underwriter will not be obligated to
sell shares of common stock during any capital raising period if the aggregate
value of the number of shares to be sold on a firm-commitment basis is less than
$100,000.
Any shares of common stock the underwriter sells under the underwriting
agreement will be sold at prices related to the then prevailing market price for
our common stock. During a capital raising period, the underwriter will
effectively pay us for any shares it sells on our behalf on any trading day a
purchase price equal to the daily volume weighted average price for that trading
day, excluding block trades of more than 5,000 shares, as reported by Bloomberg
Financial LP, less a discount of either 4.00 or 4.25%, depending on our market
capitalization on the day we provide the related capital demand notice to the
underwriter.
Under the terms of the underwriting agreement, the underwriter and its
affiliates are prohibited from engaging in any put, call, short-sale, hedge,
straddle, collar or similar transaction with respect to any shares of our common
stock.
Under some circumstances, the underwriter will not be obligated to sell any
shares of our common stock following our delivery of a capital demand notice.
These circumstances generally include:
. the withdrawal or suspension of the effectiveness of the registration
statement;
. our failure to maintain the inclusion of our common stock on the
Nasdaq National Market;
. a suspension of trading of our common stock on the Nasdaq National
Market;
. a general suspension of trading of securities on the Nasdaq National
Market;
. a general moratorium on commercial banking activities or securities
clearance and settlement services declared by federal or New York
state authorities;
. a material outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency
or war that, in the reasonable judgment of the underwriter, makes it
impracticable to proceed with the offering;
. our failure to satisfy the conditions precedent to sales of common
stock that the underwriting agreement sets forth;
. our failure to comply with our covenants that the underwriting
agreement sets forth;
. any merger or consolidation of our company into another entity;
. a transfer of all or substantially all of our assets to another
entity; or
. the occurrence of an event which makes any statement of material fact
made in this prospectus, the registration statement, any amendment to
the registration statement, any supplement to this prospectus or any
document we have incorporated by reference into this prospectus untrue
in any material respect or which requires us to amend the registration
statement or this prospectus.
30
The underwriter may terminate the underwriting agreement if:
. we commit a material breach of any of our representations, warranties
or covenants or other obligations in the underwriting agreement;
. we fail to comply with our covenants the underwriting agreement sets
forth;
. we merge or consolidate with another entity or transfer all or
substantially all of our assets to another entity;
. the underwriter reasonably determines that the adoption of, change in,
or any change in the interpretation or application of any law,
regulation, rule, guideline or treaty makes it illegal or materially
impracticable for the underwriter to fulfill its commitment under the
terms of the underwriting agreement; or
. we fail to maintain the inclusion of our common stock on the Nasdaq
National Market or the suspension of trading on that market for a
period of ten or more consecutive trading days.
We may, in our sole discretion, terminate the underwriting agreement at any
time.
We have paid the underwriter $50,000 to cover a portion of its out-of-
pocket expenses in connection with the execution of the underwriting agreement
and its conduct of an initial due diligence review of our company. In addition,
we have agreed to pay the underwriter's reasonable out-of-pocket expenses
relating to its ongoing due diligence review in any quarter in which we provide
the underwriter a capital demand notice, up to a maximum of $8,000 per quarter.
We have also agreed that:
. if we do not raise an aggregate of at least $1 million within one year
of the date of the underwriting agreement, we will pay the underwriter
a stand-by fee of 5% of the difference between $1 million and the
amount raised during that year; and
. if we do not raise an aggregate of at least $2 million within two
years of the date of the underwriting agreement, we will pay the
underwriter a stand-by fee equal to 5% of the difference between the
$2 million and the amount raised during that two-year period;
provided, however, that the total of the aggregate standby-fees we pay
will not exceed $100,000.
If we raise at least $2 million within two years of the date of the underwriting
agreement, the underwriter will refund to us any previously paid stand-by fees.
At our option, we may pay the stand-by fees in cash or in shares of our common
stock, valued at the then current market price, to the extent permitted by the
applicable rules of the National Association of Securities Dealers, Inc.
We have entered into a letter agreement with Credit Lyonnais Securities
(USA) Inc. ("CLS"), which acted as a finder in connection with the underwriting
agreement. You should read that letter agreement for more details regarding the
provisions we describe below and for other provisions that may be important to
you. We have filed a copy of that letter agreement with the SEC as an exhibit
to the registration statement.
Under the terms of our letter agreement with CLS, we have agreed to pay CLS
a finder's fee of either 2.75% or 3.00% (depending on our market capitalization
on the day we provide the related capital demand notice to the underwriter) of
the aggregate price the underwriter pays us for those shares. We have also paid
CLS an expense allowance of $50,000, which is to be refunded to us if and to the
extent CLS does not incur up to $50,000 of costs and expenses in connection with
these arrangements. CLS introduced us to the underwriter, but CLS is not a
party to, and is not obligated to purchase any shares of our common stock under,
the underwriting agreement.
The total compensation we pay to the underwriter and CLS will depend on the
amount of net proceeds, if any, we seek to obtain under the underwriting
agreement and the aggregate sales proceeds from any shares of
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common stock the underwriter sells on our behalf under the underwriting
agreement. However, in no event will the total commissions and finder's fees we
pay to the underwriter and CLS during any capital raising period exceed 7% of
the aggregate gross proceeds attributable to sales of common stock under the
underwriting agreement during that capital raising period.
We have agreed to indemnify the underwriter and CLS against certain civil
liabilities, including liabilities under the Securities Act of 1933.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from various types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a
specified date in the future. The contracts would be subject only to those
conditions the prospectus supplement describes. The prospectus supplement will
describe the commission payable for solicitation of those contracts.
General Information
We may have agreements with the agents, dealers and underwriters to
indemnify them against civil liabilities, including liabilities under the
Securities Act of 1933, or to contribute with respect to payments that the
agents, dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
Legal Matters
Baker Botts L.L.P., Houston, Texas, our outside counsel, will issue an
opinion about the legality of the offered securities for us. Any underwriters
will be advised about other issues relating to any offering by their own legal
counsel.
Experts
The audited financial statements incorporated by reference in this
prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said report.
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can read and copy any materials we file with the
SEC at the SEC's public reference room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can obtain information about the operation of the SEC's public
reference room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a
Web site that contains information we file electronically with the SEC, which
you can access over the Internet at http://www.sec.gov.
This prospectus is part of a registration statement we have filed with the
SEC relating to the securities. This prospectus does not contain all the
information the registration statement sets forth or includes in its exhibits,
in accordance with the rules and regulations of the SEC, and we refer you to
that omitted information. The statements this prospectus makes respecting the
content of any contract, agreement or other document that is an exhibit to the
registration statement necessarily are summaries of their material provisions,
and we qualify them in their entirety by reference to those exhibits for
complete statements of their provisions. The registration statement and its
exhibits are available at the SEC's public reference room or through its Web
site.
The SEC allows us to "incorporate by reference" the information we file
with it, which means we can disclose important information to you by referring
you to those documents. The information we incorporate by reference is an
important part of this prospectus, and later information we file with the SEC
will automatically
32
update and supersede that information. We incorporate by reference the documents
listed below, and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell all the
offered securities. The documents we incorporate by reference are:
. our annual report on Form 10-K for the year ended December 31, 2000;
. our quarterly reports on Form 10-Q for the quarters ended March 31,
2001, June 30, 2001 and September 30, 2001;
. our current reports on Form 8-K dated April 10, 2001 and July 12,
2001; and
. the description of the common stock and the description of the rights
to purchase preferred stock in our registration statements on Form 8-A
filed on May 10, 1999.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus has been delivered, upon written or
oral request, a copy of any or all the documents we incorporate by reference in
this prospectus, other than any exhibit to any of those documents, unless we
have specifically incorporated that exhibit by reference into the information
this prospectus incorporates. You may request copies by writing or telephoning
us at the following address:
U.S. Concrete, Inc.
2925 Briarpark Suite 500
Houston, Texas 77042
Attention: Corporate Secretary
Telephone: (713) 499-6200
You should rely only on the information we have provided or incorporated by
reference in this prospectus or any prospectus supplement. We have not
authorized any person (including any salesman or broker) to provide information
other than that this prospectus or any prospectus supplement provides. We have
not authorized anyone to provide you with different information. We are not
making an offer of these securities in any jurisdiction where the offer is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on its
cover page or that any information in any document we have incorporated by
reference is accurate as of any date other than the date of the document
incorporated by reference. Accordingly, we urge you to review each document we
subsequently file with the SEC and incorporate by reference as we describe above
for updated information.
33
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth expenses payable by U.S. Concrete, Inc.
("U.S. Concrete" or the "Company") in connection with the issuance and
distribution of the securities being registered. All the amounts shown are
estimates, except the SEC registration fee.
[Enlarge/Download Table]
SEC registration fee..................................................................... $ 52,800
Printing expenses........................................................................ 55,000
Legal fees and expenses.................................................................. 100,000
Accounting fees and expenses............................................................. 80,000
Expense reimbursements to Ramius Securities LLC.......................................... 114,000
Expense payment to Credit Lyonnais Securities (USA) Inc.................................. 50,000
Fees and expenses of trustee and counsel................................................. 20,000
Fees and expenses of transfer agent...................................................... 5,000
Rating agency fees....................................................................... 50,000
Miscellaneous expenses................................................................... 33,200
--------
Total............................................................................... 560,000
========
Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to 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 or she is or was a director or 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. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by that person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner he or she 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 or her conduct was unlawful.
A Delaware corporation may indemnify directors, officers, employees and others
against expenses (including attorneys' fees) in an action by or in the right of
the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a director or officer is
successful on the merits or otherwise in the defense of any action referred to
above or in defense of any claim, issue or matter therein, the corporation must
indemnify that director or officer against the expenses (including attorneys'
fees) which he or she actually and reasonably incurred in connection therewith.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (1) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the DGCL or (4) for any
transaction from which the director derived an improper personal benefit.
Certificate of Incorporation and Bylaws
Article Seventh of U.S. Concrete's restated certificate of incorporation
states that:
II-1
No director of the Corporation will be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that the foregoing
provisions will not eliminate or limit the liability of a director (a) for
any breach of that director's duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174
of the DGCL, as the same exists or as that provision hereafter may be
amended, supplemented or replaced, or (d) for any transaction from which
that director derived an improper personal benefit. If the DGCL is amended
after the filing of this Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation, in addition
to the limitation on personal liability provided herein, will be limited to
the fullest extent permitted by that law, as so amended. Any repeal or
modification of this Article Seventh by the stockholders of the Corporation
will be prospective only and will not adversely affect any limitation on
the personal liability of a director of the Corporation existing at the
time of that repeal or modification.
In addition, Article VI of U.S. Concrete's bylaws further provides that
U.S. Concrete shall indemnify its officers and directors to the fullest extent
permitted by law.
Indemnification Agreements and Insurance
U.S. Concrete has entered into indemnification agreements with each of its
executive officers and directors. These indemnification agreements generally
provide the Company's directors and executive officers with contractual rights
of indemnification to the same extent provided by Section 145 of the Delaware
General Corporation Law and Article VI of U.S. Concrete's bylaws.
Agreements the Company may enter into with underwriters, dealers and agents
who participate in the distribution of securities of the Company may contain
provisions relating to the indemnification of the Company's officers and
directors.
The Company also maintains directors' and officers' liability insurance for
its directors and officers that protects them from certain losses arising from
claims or charges made against them in their capacities as directors or officers
of the Company.
Item 16. Exhibits.*
Exhibit No. Description of Exhibit
----------- ----------------------
*1.1 - Form of Underwriting Agreement.
1.2 - Flexible Underwritten Equity FaciLity (FUEL(R)) Agreement
dated as of January 7, 2002 between Ramius Securities, LLC and
U.S. Concrete.
1.3 - Amended and restated engagement letter agreement dated as of
January 18, 2002 between Credit Lyonnais Securities (USA) Inc.
and U.S. Concrete.
**2.1 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, OCC Acquisition Inc.,
Opportunity Concrete Corporation and the stockholders named
therein (Form S-1 (Reg. No. 333-74855), Exhibit 2.1).
**2.2 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, Walker's Acquisition Inc.,
Walker's Concrete, Inc. and the stockholders named therein
(Form S-1 (Reg. No. 333-74855), Exhibit 2.2).
II-2
Exhibit No. Description of Exhibit
----------- ----------------------
**2.3 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, Central Concrete
Acquisition Inc., Central Concrete Supply Co., Inc. and the
stockholders named therein (Form S-1 (Reg. No. 333-74855),
Exhibit 2.3).
**2.4 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, Bay Cities Acquisition
Inc., Bay Cities Building Materials Co., Inc. and the
stockholders named therein (Form S-1 (Reg. No. 333-74855),
Exhibit 2.4).
**2.5 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, Baer Acquisition Inc., Baer
Concrete, Incorporated and the stockholders named therein
(Form S-1 (Reg. No. 333-74855), Exhibit 2.5).
**2.6 - Agreement and Plan of Reorganization dated as of March 22,
1999 by and among U.S. Concrete, Santa Rosa Acquisition
Inc., R.G. Evans/Associates d/b/a Santa Rosa Cast Products
Co. and the stockholders named therein (Form S-1 (Reg. No.
333-74855), Exhibit 2.6).
**2.7 - Uniform Provisions for the Acquisitions (incorporated into
the agreements filed as Exhibits 2.1 through 2.6 hereto)
(Form S-1 (Reg. No. 333-74855), Exhibit 2.7).
**2.8 - Acquisition Agreement and Plan of Reorganization dated as of
September 14, 1999 by and among U.S. Concrete, Inc.,
Concrete XI Acquisition, Inc., Carrier Excavation and
Foundation Company, John F. Carrier, William Henry Carrier,
Michael K. Carrier, Mary G. Carrier, Trustee for Anne
Carrier (TN UGMA), William Henry Carrier, Trustee for
William Henry Carrier, Jr. (TN UGMA), and Mary G. Carrier
(Form 10-K for the year ended December 31, 1999 (File No.
000-26025), Exhibit 2.8).
**2.9 - Stock Purchase Agreement dated as of November 5, 1999 by and
among U.S. Concrete, Inc., B. Thomas Stover, as Trustee
under Trust Agreement dated February 20, 1986 for B. Thomas
Stover, Sarah M. Stover, as Trustee under Trust Agreement
dated February 27, 1990 for Sarah M. Stover, B. Andrew
Stover, B. Thomas Stover, Custodian under Michigan Uniform
Gifts to Minors Act for the benefit of Carolyn A. Stover,
Jeffery D. Spahr, Jeffrey T. Stover, and Bradley C. Stover
(Form 10-K for the year ended December 31, 1999 (File No.
000-26025), Exhibit 2.9).
**2.10 - Stock Purchase Agreement dated as of January 20, 2000 by and
among Robert S. Beall, Chase Bank of Texas, National
Association, in its capacity as Trustee for Allison Beall
1999 Trust, Logan Beall 1999 Trust, Allison Beall
Descendants' Trust and Logan Beall Descendants' Trust and
U.S. Concrete, Inc. (Form 8-K dated February 23, 2000 (File
No. 000-26025), Exhibit 2.1).`
**2.11 - Amendment No. 1 to Stock Purchase Agreement dated January
28, 2000 by and among Robert S. Beall, Chase Bank of Texas,
National Association, in its capacity as Trustee for Allison
Beall 1999 Trust, Logan Beall 1999 Trust, Allison Beall
Descendants' Trust and Logan Beall Descendants' Trust and
U.S. Concrete, Inc. (Form 8-K dated February 23, 2000 (File
No. 000-26025), Exhibit 2.2).
**2.12 - Stock Purchase Agreement dated as of January 24, 2000 by and
among Fallis Arch Beall, Nola Sue Beall, Robert S. Beall,
Leigh Ann Gathright, Doris W. Stokes and Fallis Arch Beall,
in his capacity as Trustee for the R.E. Stokes Trust and
U.S. Concrete, Inc. (Form 8-K dated February 23, 2000 (File
No. 000-26025), Exhibit 2.3).
II-3
Exhibit No. Description of Exhibit
----------- ----------------------
**2.13 - Aquisition Agreement and Plan of Reorganization dated as of
February 8, 2000 by and crete, Inc., Concrete XIX
Acquisition, Inc., Cornillie Fuel & Supply, Inc., Richard A.
Deneweth and Joseph C. Cornillie, Trustee URTA of Joseph C.
Cornillie (Form 10-K for the year ended December 31, 1999
(File No. 000-26025), Exhibit 2.13).
**2.14 - Stock Purchase Agreement dated as of February 8, 2000 by and
among U.S. Concrete, Inc., Cornillie Fuel & Supply, Inc.,
Dencor, Inc., Richard A. Deneweth and Joseph C. Cornillie,
Trustee URTA of Joseph C. Cornillie (Form 10-K for the year
ended December 31, 1999 (File No. 000-26025), Exhibit 2.14).
**2.15 - Acquisition Agreement and Plan of Reorganization dated as of
February 8, 2000 by and among U.S. Concrete, Inc., Concrete
XVIII Acquisition, Inc., Cornillie Leasing, Inc., Richard A.
Deneweth and Joseph C. Cornillie, Trustee URTA of Joseph C.
Cornillie (Form 10-K for the year ended December 31, 1999
(File No. 000-26025), Exhibit 2.15).
**2.16 - Acquisition Agreement and Plan of Reorganization dated as of
March 2, 2000 by and among U.S. Concrete, Inc., Concrete XXIV
Acquisition, Inc., Stancon Inc. and Donald S. Butler and John
Grace (Form 10-K for the year ended December 31, 1999 (File
No. 000-26025), Exhibit 2.16).
**4.1 - Restated Certificate of Incorporation of U.S. Concrete (Form
S-1 (Reg. No. 333-74855), Exhibit 3.1).
4.2 - Amended and Restated Bylaws of U.S. Concrete, as amended.
**4.3 - Form of Certificate representing common stock (Form S-1 (Reg.
No. 333-74855), Exhibit 4.1).
**4.4 - Rights Agreement by and between U.S. Concrete and American
Stock Transfer & Trust Company, including form of Rights
Certificate attached as Exhibit B thereto (Form S-1 (Reg. No.
333-74855), Exhibit 4.4).
+4.5 - Certificate of Designations of Series A Junior Participating
Preferred Stock of U.S. Concrete.
+4.6 - Form of Indenture relating to the Senior Debt Securities.
+4.7 - Form of Indenture relating to the Subordinated Debt
Securities.
*+5.1 - Opinion of Baker Botts L.L.P.
12.1 - Statement showing computation of ratios of earnings to fixed
charges.
23.1 - Consent of Arthur Andersen LLP.
+23.2 - Consent of Baker Botts L.L.P. (contained in Exhibit 5
hereto).
+24.1 - Powers of Attorney.
_______________
* The Company will file as an exhibit to a current report on Form 8-K
(i) any underwriting agreement relating to securities offered hereby, (ii)
the instruments setting forth the terms of any debt
II-4
securities, preferred stock or warrants, (iii) any additional required
opinion of counsel to the Company as to the legality of the securities
offered hereby, (iv) any required opinion of counsel to the Company as to
certain tax matters relative to securities offered hereby or (v) any
Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the applicable trustee.
** Incorporated by reference to the filing indicated.
+ Previously filed.
Item 17. 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 of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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 the 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) under 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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities Exchange Act of
1934 that are incorporated by reference in the 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
Securities Exchange Act of 1934 that is incorporated by reference in the
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 foregoing provisions, or otherwise, the
II-5
registrant has been advised that in the opinion of the Securities and Exchange
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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
(e) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee under any
indenture relating to the debt securities to act under subsection (a) of Section
310 of the Trust Indenture Act of 1939 (the "Act") in accordance with the rules
and regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this post-effective
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, the State of
Texas, on January 22, 2002.
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 post-
effective amendment to registration statement has been signed by the following
persons in the capacities indicated on January 22, 2002.
[Download Table]
Signature Title
---------------------------------- ---------------------------------
/s/ EUGENE P. MARTINEAU President, Chief Executive
----------------------------------- Officer and Director
Eugene P. Martineau (Principal Executive Officer)
/s/ MICHAEL W. HARLAN Senior Vice President, Chief Financial
----------------------------------- Officer and Director
Michael W. Harlan (Principal Financial Officer)
WILLIAM T. ALBANESE* Director
-----------------------------------
William T. Albanese
VINCENT D. FOSTER* Director
-----------------------------------
Vincent D. Foster
JOHN R. COLSON* Director
-----------------------------------
John R. Colson
MICHAEL D. MITSCHELE* Director
-----------------------------------
Michael D. Mitschele
/s/ T. WILLIAM PORTER Director
-----------------------------------
T. William Porter
MURRAY S. SIMPSON* Director
-----------------------------------
Murray S. Simpson
NEIL J. VANNUCCI* Director
-----------------------------------
Neil J. Vannucci
ROBERT S. WALKER* Director
-----------------------------------
Robert S. Walker
*By: /s/ MICHAEL W. HARLAN
--------------------------------
Michael W. Harlan
(Attorney-in-Fact)
II-7
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
*1.1 - Form of Underwriting Agreement.
1.2 - Flexible Underwritten Equity FaciLity (FUEL(R)) Agreement dated as
of January 7, 2002 between Ramius Securities, LLC and U.S.
Concrete.
1.3 - Amended and restated engagement letter agreement dated as of
January 18, 2002 between Credit Lyonnais Securities (USA) Inc. and
U.S. Concrete.
**2.1 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, OCC Acquisition Inc., Opportunity
Concrete Corporation and the stockholders named therein (Form S-1
(Reg. No. 333-74855), Exhibit 2.1).
**2.2 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, Walker's Acquisition Inc., Walker's
Concrete, Inc. and the stockholders named therein (Form S-1 (Reg.
No. 333-74855), Exhibit 2.2).
**2.3 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, Central Concrete Acquisition Inc.,
Central Concrete Supply Co., Inc. and the stockholders named
therein (Form S-1 (Reg. No. 333-74855), Exhibit 2.3).
**2.4 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, Bay Cities Acquisition Inc., Bay Cities
Building Materials Co., Inc. and the stockholders named therein
(Form S-1 (Reg. No. 333-74855), Exhibit 2.4).
**2.5 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, Baer Acquisition Inc., Baer Concrete,
Incorporated and the stockholders named therein (Form S-1 (Reg.
No. 333-74855), Exhibit 2.5).
**2.6 - Agreement and Plan of Reorganization dated as of March 22, 1999 by
and among U.S. Concrete, Santa Rosa Acquisition Inc., R.G.
Evans/Associates d/b/a Santa Rosa Cast Products Co. and the
stockholders named therein (Form S-1 (Reg. No. 333-74855), Exhibit
2.6).
**2.7 - Uniform Provisions for the Acquisitions (incorporated into the
agreements filed as Exhibits 2.1 through 2.6 hereto) (Form S-1
(Reg. No. 333-74855), Exhibit 2.7).
**2.8 - Acquisition Agreement and Plan of Reorganization dated as of
September 14, 1999 by and among U.S. Concrete, Inc., Concrete XI
Acquisition, Inc., Carrier Excavation and Foundation Company, John
F. Carrier, William Henry Carrier, Michael K. Carrier, Mary G.
Carrier, Trustee for Anne Carrier (TN UGMA), William Henry
Carrier, Trustee for William Henry Carrier, Jr. (TN UGMA), and
Mary G. Carrier (Form 10-K for the year ended December 31, 1999
(File No. 000-26025), Exhibit 2.8).
**2.9 - Stock Purchase Agreement dated as of November 5, 1999 by and among
U.S. Concrete, Inc., B. Thomas Stover, as Trustee under Trust
Agreement dated February 20, 1986 for B. Thomas Stover, Sarah M.
Stover, as Trustee under Trust Agreement dated February 27, 1990
for Sarah M. Stover, B. Andrew Stover, B. Thomas Stover, Custodian
under Michigan Uniform Gifts to Minors Act for the benefit of
Carolyn A. Stover, Jeffery D. Spahr, Jeffrey T. Stover, and
Bradley C. Stover (Form 10-K for the year ended December 31, 1999
(File No. 000-26025), Exhibit 2.9).
Exhibit No. Description of Exhibit
----------- ----------------------
**2.10 - Stock Purchase Agreement dated as of January 20, 2000 by and among
Robert S. Beall, Chase Bank of Texas, National Association, in its
capacity as Trustee for Allison Beall 1999 Trust, Logan Beall 1999
Trust, Allison Beall Descendants' Trust and Logan Beall
Descendants' Trust and U.S. Concrete, Inc. (Form 8-K dated
February 23, 2000 (File No. 000-26025), Exhibit 2.1).
**2.11 - Amendment No. 1 to Stock Purchase Agreement dated January 28, 2000
by and among Robert S. Beall, Chase Bank of Texas, National
Association, in its capacity as Trustee for Allison Beall 1999
Trust, Logan Beall 1999 Trust, Allison Beall Descendants' Trust
and Logan Beall Descendants' Trust and U.S. Concrete, Inc. (Form
8-K dated February 23, 2000 (File No. 000-26025), Exhibit 2.2).
**2.12 - Stock Purchase Agreement dated as of January 24, 2000 by and among
Fallis Arch Beall, Nola Sue Beall, Robert S. Beall, Leigh Ann
Gathright, Doris W. Stokes and Fallis Arch Beall, in his capacity
as Trustee for the R.E. Stokes Trust and U.S. Concrete, Inc. (Form
8-K dated February 23, 2000 (File No. 000-26025), Exhibit 2.3).
**2.13 - Acquisition Agreement and Plan of Reorganization dated as of
February 8, 2000 by and among U.S. Concrete, Inc., Concrete XIX
Acquisition, Inc., Cornillie Fuel & Supply, Inc., Richard A.
Deneweth and Joseph C. Cornillie, Trustee URTA of Joseph C.
Cornillie (Form 10-K for the year ended December 31, 1999 (File
No. 000-26025), Exhibit 2.13).
**2.14 - Stock Purchase Agreement dated as of February 8, 2000 by and among
U.S. Concrete, Inc., Cornillie Fuel & Supply, Inc., Dencor, Inc.,
Richard A. Deneweth and Joseph C. Cornillie, Trustee URTA of
Joseph C. Cornillie (Form 10-K for the year ended December 31,
1999 (File No. 000-26025), Exhibit 2.14).
**2.15 - Acquisition Agreement and Plan of Reorganization dated as of
February 8, 2000 by and among U.S. Concrete, Inc., Concrete XVIII
Acquisition, Inc., Cornillie Leasing, Inc., Richard A. Deneweth
and Joseph C. Cornillie, Trustee URTA of Joseph C. Cornillie (Form
10-K for the year ended December 31, 1999 (File No. 000-26025),
Exhibit 2.15).
**2.16 - Acquisition Agreement and Plan of Reorganization dated as of March
2, 2000 by and among U.S. Concrete, Inc., Concrete XXIV
Acquisition, Inc., Stancon Inc. and Donald S. Butler and John
Grace (Form 10-K for the year ended December 31, 1999 (File No.
000-26025), Exhibit 2.16).
**4.1 - Restated Certificate of Incorporation of U.S. Concrete (Form S-1
(Reg. No. 333-74855), Exhibit 3.1).
4.2 - Amended and Restated Bylaws of U.S. Concrete, as amended.
**4.3 - Form of Certificate representing common stock (Form S-1 (Reg. No.
333-74855), Exhibit 4.1).
**4.4 - Rights Agreement by and between U.S. Concrete and American Stock
Transfer & Trust Company, including form of Rights Certificate
attached as Exhibit B thereto (Form S-1 (Reg. No. 333-74855),
Exhibit 4.4).
+4.5 - Certificate of Designations of Series A Junior Participating
Preferred Stock of U.S. Concrete.
Exhibit No. Description of Exhibit
----------- ----------------------
+4.6 - Form of Indenture relating to the Senior Debt Securities.
+4.7 - Form of Indenture relating to the Subordinated Debt Securities.
*5.1 - Opinion of Baker Botts L.L.P.
12.1 - Statement showing computation of ratios of earnings to fixed
charges.
23.1 - Consent of Arthur Andersen LLP.
+23.2 - Consent of Baker Botts L.L.P. (contained in Exhibit 5 hereto).
+24.1 - Powers of Attorney.
_______________
* The Company will file as an exhibit to a current report on Form 8-K
(i) any underwriting agreement relating to securities offered hereby, (ii)
the instruments setting forth the terms of any debt securities, preferred
stock or warrants, (iii) any additional required opinion of counsel to the
Company as to the legality of the securities offered hereby, (iv) any
required opinion of counsel to the Company as to certain tax matters
relative to securities offered hereby or (v) any Statement of Eligibility
and Qualification under the Trust Indenture Act of 1939 of the applicable
trustee.
** Incorporated by reference to the filing indicated.
+ Previously filed.
Dates Referenced Herein and Documents Incorporated by Reference
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