Delaware
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001-34530
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76-0586680
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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331 N. Main Street
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Euless, Texas 76039
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(Address of principal executive offices, including ZIP code)
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(817) 835-4105
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(Registrant's telephone number, including area code)
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Not Applicable
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(Former name or former address, if changed since last report)
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__________________
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□
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Exhibit No.
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Exhibit
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10.1
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U.S. Concrete, Inc. Deferred Compensation Plan
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10.2
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U.S. Concrete, Inc. Deferred Compensation Plan Adoption Agreement
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Exhibit No.
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Exhibit
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10.1
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U.S. Concrete, Inc. Deferred Compensation Plan
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10.2
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U.S. Concrete, Inc. Deferred Compensation Plan Adoption Agreement
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2.1
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“Account”
means an account established for the purpose of recording amounts credited on behalf of a Participant and any income, expenses, gains, losses or distributions included thereon. The Account shall be a bookkeeping entry only and shall be utilized solely as a device for the
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2.2
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“Administrator”
means the person or persons designated by the Plan Sponsor in
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2.4
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“Beneficiary”
means the persons, trusts, estates or other entities entitled under Section 8.2 to receive benefits under the Plan upon the death of a Participant.
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2.10
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“Director”
means a non-employee member of the Board who has been designated by the Employer as eligible to participate in the Plan.
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2.11
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“Disability”
means a determination by the Administrator that the Participant is either (a) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, or (b) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or last for a continuous period of not less than twelve months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Employer. A Participant will be considered to have incurred a Disability if he is determined to be totally disabled by the Social Security Administration or the Railroad Retirement Board.
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2.12
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“Eligible Employee”
means an employee of the Employer who satisfies the requirements in Section 2.01 of the Adoption Agreement.
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2.13
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“Employer”
means the Plan Sponsor and any other entity which is authorized by the Plan Sponsor to participate in and, in fact, does adopt the Plan.
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2.14
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“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
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2.15
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“Identification Date”
means the date as of which Key Employees are determined which is specified in Section 1.
0
6 of the Adoption Agreement.
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2.16
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“Key Employee”
means an employee who satisfies the conditions set forth in Section 9.6.
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2.17
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“Participant”
means an Eligible Employee or Director who commences participation in the Plan in accordance with Article 3.
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2.18
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“Plan”
means the unfunded plan of deferred compensation set forth herein, including the Adoption Agreement and any trust agreement, as adopted by the Plan Sponsor and as amended from time to time.
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2.19
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“Plan Sponsor”
means the entity identified in Section 1.03 of the Adoption Agreement or any successor by merger, consolidation or otherwise.
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2.21
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“Related Employer”
means the Employer and (a) any corporation that is a member of a controlled group of corporations as defined in Code Section 414(b) that includes the Employer and (b) any trade or business that is under common control as defined in Code Section 414(c) that includes the Employer.
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2.23
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“Separation from Service”
means the date that the Participant dies, retires or otherwise has a termination of employment with respect to all entities comprising the Related Employer. A Separation from Service does not occur if the Participant is on military leave, sick leave or other bona fide leave of absence if the period of leave does not exceed six months or such longer period during which the Participant's right to re- employment is provided by statute or contract. If the period of leave exceeds six months and the Participant's right to re-employment is not provided either by statute or contract, a Separation from Service will be deemed to have occurred on the first day following the six-month period. If the period of leave is due to any medically determinable physical or mental impairment that can be expected to result in death or can be
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2.24
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“Unforeseeable Emergency”
means a severe financial hardship of the Participant resulting from an illness or accident of the Participant, the Participant's spouse, the Participant's Beneficiary, or the Participant's dependent (as defined in Code Section 152, without regard to Code section 152(b)(1), (b)(2) and (d)(1)(B); loss of the Participant's property due to casualty; or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.
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2.26
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“Years of Service”
means each one year period for which the Participant receives service credit in accordance with the provisions of Section
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3.1
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Participation.
The Participants in the Plan shall be those Directors and employees of the Employer who satisfy the requirements of Section 2.01 of the Adoption Agreement.
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3.2
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Termination of Participation.
The Administrator may terminate a Participant's participation in the Plan in a manner consistent with Code Section 409A. If the Employer terminates a Participant's participation before the Participant experiences a Separation from Service the Participant's vested Accounts shall be paid in accordance with the provisions of Article 9.
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4.1
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Deferral Agreement.
If permitted by the Plan Sponsor in accordance with Section 4.01 of the Adoption Agreement, each Eligible Employee and Director may elect to defer his Compensation within the meaning of
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4.2
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Amount of Deferral.
An Eligible Employee or Director may elect to defer Compensation in any amount permitted by Section 4.01(a) of the Adoption Agreement.
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4.3
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Timing of Election to Defer.
Each Eligible Employee or Director who desires to defer Compensation otherwise payable during a Plan Year must execute a deferral agreement within the period preceding the Plan Year specified by the Administrator. Each Eligible Employee who desires to defer Compensation that is a Bonus must execute a deferral agreement within the period preceding the Plan Year during which the Bonus is
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5.1
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Matching Contributions.
If elected by the Plan Sponsor in Section 5.01(a) of the Adoption Agreement, the Employer will credit the Participant's Account with a matching contribution determined in accordance with the formula specified in Section 5.01(a) of the Adoption Agreement. The matching contribution will be treated as allocated to the Participant's Account at the time specified in Section 5.01(a)(iii) of the Adoption Agreement.
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5.2
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Other Contributions.
If elected by the Plan Sponsor in Section 5.01(b) of the Adoption Agreement, the Employer will credit the Participant's Account with a contribution determined in accordance with the formula or method specified in Section 5.01(b) of the Adoption Agreement. The contribution will be treated as allocated to the Participant's Account at the time specified in Section 5.01(b)(iii) of the Adoption Agreement.
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6.1
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Establishment of Account.
For accounting and computational purposes only, the Administrator will establish and maintain an Account on behalf of each Participant which will reflect the credits made pursuant to Section 6.2, distributions or withdrawals, along with the earnings, expenses, gains and losses allocated thereto, attributable to the hypothetical investments made with the amounts in the Account as provided in Article 7. The Administrator will establish and maintain such other records and accounts, as it decides in its discretion to be reasonably required or appropriate to discharge its duties under the Plan.
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6.2
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Credits to Account.
A Participant's Account will be credited for each Plan Year with the amount of his elective deferrals under Section 4.1 at the time the amount subject to the deferral election would otherwise have been payable to the Participant and the amount of Employer contributions treated as allocated on his behalf under Article 5.
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7.1
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Investment Options.
The amount credited to each Account shall be treated as invested in the investment options designated for this purpose by the Administrator.
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7.2
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Adjustment of Accounts.
The amount credited to each Account shall be adjusted for hypothetical investment earnings, expenses, gains or losses in an amount equal to the earnings, expenses, gains or losses attributable to the investment options selected by the party designated in Section 9.01 of the Adoption Agreement from among the investment options provided in Section 7.1. If permitted by Section 9.01 of the Adoption Agreement, a Participant (or the Participant's Beneficiary after the death of the Participant) may, in accordance with rules and procedures established by the
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8.1
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Vesting.
A Participant, at all times, has a 100% nonforfeitable interest in the amounts credited to his Account attributable to his elective deferrals made in accordance with Section 4.1.
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8.2
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Death.
The Plan Sponsor may elect to accelerate vesting upon the death of the Participant in accordance with Section 7.01(c) of the Adoption Agreement and/or to accelerate distributions upon Death in accordance with Section 6.01(b) or Section 6.01(d) of the Adoption Agreement. If the Plan Sponsor does not elect to accelerate distributions upon death in accordance with Section 6.01(b) or Section 6
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01(d) of the Adoption Agreement, the vested amount credited to the Participant's Account will be paid in accordance with the provisions of Article 9.
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8.3
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Disability.
If the Plan Sponsor has elected to accelerate vesting upon the occurrence of a Disability in accordance with Section 7.
0
1(c) of the Adoption Agreement and/or to permit distributions upon Disability in accordance with Section 6.01(b) or Section 6
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01(d) of the Adoption Agreement, the determination of whether a Participant has incurred a Disability shall be made by the Administrator in its sole discretion in a manner consistent with the requirements of Code Section 409A.
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9.1
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Amount of Benefits.
The vested amount credited to a Participant's Account as determined under Articles 6, 7 and 8 shall determine and constitute the basis for the value of benefits payable to the Participant under the Plan.
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9.3
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Unforeseeable Emergency.
A Participant may request a distribution due to an Unforeseeable Emergency if the Plan Sponsor has elected to permit Unforeseeable Emergency withdrawals under Section 8.01(a) of the Adoption Agreement. The request must be in writing and must be submitted to the Administrator along with evidence that the circumstances constitute an Unforeseeable Emergency. The Administrator has the discretion to require whatever evidence it deems necessary to determine whether a distribution is warranted, and may require the Participant to certify that the need cannot be met from other sources reasonably available to the Participant.
Whether a Participant has incurred an Unforeseeable Emergency will be determined by the Administrator on the basis of the relevant facts and circumstances in its sole discretion, but, in no event, will an Unforeseeable Emergency be deemed to exist if the hardship can be relieved: (a) through reimbursement or compensation by insurance or otherwise, (b) by liquidation of the Participant's assets to the extent such liquidation would not itself cause severe financial hardship, or (c) by cessation of deferrals under the Plan. A distribution due to an Unforeseeable Emergency must be limited to the amount reasonably necessary to satisfy the emergency need and may include any amounts necessary to pay any federal, state, foreign or local income taxes and penalties reasonably anticipated to result from the distribution. The distribution will be made in the form of a single lump sum cash payment. If permitted by Section 8.01(b) of the Adoption Agreement, a Participant's deferral elections for the remainder of the Plan Year will be cancelled upon a withdrawal due to an Unforeseeable Emergency. If the payment of all or any portion of the Participant's vested Account is being delayed in accordance with Section 9.6 at the time he experiences an Unforeseeable Emergency, the amount being delayed shall not be subject to the provisions of this Section 9.3 until the expiration of the six month period of delay required by section 9.6.
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9.4
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Payment Election Overrides.
If the Plan Sponsor has elected one or more payment election overrides in accordance with Section 6.01(d) of the Adoption Agreement, the following provisions apply. Upon the occurrence of the first event selected by the Plan Sponsor, the remaining vested amount credited to the Participant's Account shall be paid in the form designated to the Participant or his Beneficiary regardless of whether the Participant had made different elections of time and /or form of payment or whether the Participant was receiving installment payments at the time of the event.
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9.5
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Cashouts Of Amounts Not Exceeding Stated Limit.
If the vested amount credited to the Participant's Account does not exceed the limit established for this purpose by the Plan Sponsor in Section 6.01(e) of the Adoption Agreement at the time he incurs a Separation from Service for any reason, the Employer shall distribute such amount to the Participant at the time specified in Section 6.01(a) of the Adoption Agreement in a single lump sum cash payment following such Separation from Service regardless of whether the Participant had made different elections of time or form of payment as to the vested amount credited to his Account or whether the Participant was receiving installments at the time of such termination. A Participant's Account, for purposes of this Section 9.5, shall include any amounts described in Section 1.3.
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9.6
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Required Delay in Payment to Key Employees
. Except as otherwise provided in this Section 9.6, a distribution made on account of Separation from Service (or Retirement, if applicable) to a Participant who is a Key Employee as of the date of his Separation from Service (or Retirement, if applicable) shall not be made before the date which is six months after the Separation from Service (or Retirement, if applicable). If payments to a Key Employee are delayed in accordance with this Section 9.6, the payments to which the Key Employee would otherwise have been entitled during the six month period shall be accumulated and paid in a single lump sum at the time specified in Section 6.01(a) of the Adoption Agreement after the six month period elapses.
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9.7
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Change in Control.
If the Plan Sponsor has elected to permit distributions upon a Change in Control, the following provisions shall apply. A distribution made upon a Change in Control will be made at the time specified in Section 6.01(a) of the Adoption Agreement in the form elected by the Participant in accordance with the procedures described in Article 4. Alternatively, if the Plan Sponsor has elected in accordance with Section 11
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02 of the Adoption Agreement to require distributions upon a Change in Control, the Participant's remaining vested Account shall be paid to the Participant or the Participant's Beneficiary at the time specified in Section 6.01(a) of the Adoption Agreement as a single lump sum payment. A Change in Control, for purposes of the Plan, will occur upon a change in the ownership of the Plan Sponsor, a change in the effective control of the Plan Sponsor or a change in the ownership of a substantial portion of the assets of the Plan Sponsor, but only if elected by the Plan Sponsor in Section 11
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03 of the Adoption Agreement. The Plan Sponsor, for this purpose, includes any corporation identified in this Section 9.7. All distributions made in accordance with this Section 9.7 are subject to the provisions of Section 9.6.
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(a)
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Relevant Corporations.
To constitute a Change in Control for purposes of the Plan, the event must relate to (i) the corporation for whom the Participant is performing services at the time of the
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(b)
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Stock Ownership.
Code Section 318(a) applies for purposes of determining stock ownership. Stock underlying a vested option is considered owned by the individual who owns the vested option (and the stock underlying an unvested option is not considered owned by the individual who holds the unvested option). If, however, a vested option is exercisable for stock that is not substantially vested (as defined by Treasury Regulation Section 1.83-3(b) and (j)) the stock underlying the option is not treated as owned by the individual who holds the option.
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(c)
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Change in the Ownership of a Corporation.
A change in the ownership of a corporation occurs on the date that any one person or more than one person acting as a group, acquires ownership of stock of the corporation that, together with stock held by such person or group, constitutes more than fifty percent (50%) of the total fair market value or total voting power of the stock of such corporation. If any one person or more than one person acting as a group is considered to own more than fifty percent (50%) of the total fair market value or total voting power of the stock of a corporation, the acquisition of additional stock by the same person or persons is not considered to cause a change in the ownership of the corporation (or to cause a change in the effective control of the corporation as discussed below in Section 9.7(d)). An increase in the percentage of stock owned by any one person, or persons acting as a group, as a result of a transaction in which the corporation acquires its stock in exchange for property will be treated as an acquisition of stock. Section 9.7(c) applies only when there is a transfer of stock of a corporation (or issuance of stock of a corporation) and stock in such corporation remains outstanding after the transaction. For purposes of this Section 9.7(c), persons will not be considered to be acting as a group solely because they purchase or own stock of the same corporation at the same time or as a result of a public offering. Persons will, however, be considered to be acting as a group if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock, or similar business transaction with the corporation. If a person, including an entity, owns stock in both corporations that enter into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such shareholder is considered to be acting as a group with other shareholders in a corporation only with respect to ownership in that corporation prior to the transaction giving rise to the change and not with respect to the ownership interest in the other corporation.
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(d)
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Change in the effective control of a corporation.
A change in the effective control of a corporation occurs on the date that either (i) any one person, or more than one person acting as a group, acquires (or has acquired during the twelve month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the corporation possessing thirty percent (30%) or more of the total voting power of the stock of such corporation, or (ii) a majority of members of the corporation's board of directors is replaced during any twelve month period by directors whose appointment or election is not endorsed by a majority of the members of the corporation's board of directors prior to the date of the appointment or election, provided
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(e)
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Change in the ownership of a substantial portion of a corporation's assets.
A change in the ownership of a substantial portion of a corporation's assets occurs on the date that any one person, or more than one person acting as a group (as determined in accordance with rules similar to those set forth in Section 9.7(d)), acquires (or has acquired during the twelve month period ending on the date of the most recent acquisition by such person or persons) assets from the corporation that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the corporation immediately prior to such acquisition or acquisitions. For this purpose, gross fair market value means the value of the assets of the corporation or the value of the assets being disposed of determined without regard to any liabilities associated with such assets. There is no Change in Control event under this Section 9.7(e) when there is a transfer to an entity that is controlled by the shareholders of the transferring corporation immediately after the transfer. A transfer of assets by a corporation is not treated as a change in ownership of such assets if the assets are transferred to (i) a shareholder of the corporation (immediately before the asset transfer) in exchange for or with respect to its stock, (ii) an entity, fifty percent (50%) or more of the total value or voting power of which is owned, directly or indirectly, by the corporation, (iii) a person, or more than one person acting as a group, that owns, directly or indirectly, fifty percent (50%) or more of the total value or voting power of all the outstanding stock of the corporation, or (iv) an entity, at least fifty (50%) of the total value or voting power of which is owned, directly or indirectly, by a person described in Section 9.7(e)(iii). For purposes of the foregoing, and except as otherwise provided, a person's status is determined immediately after the transfer of assets.
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9.8
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Permissible Delays in Payment.
Distributions may be delayed beyond the date payment would otherwise occur in accordance with the provisions of Articles 8 and 9 in any of the following circumstances as long as the Employer treats all payments to
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9.9
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Permitted Acceleration of Payment
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The Employer may permit acceleration of the time or schedule of any payment or amount scheduled to be paid pursuant to a payment under the Plan provided such acceleration would be permitted by the provisions of Reg. Sec. 1.409A-3(j)(4), including the following events:
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10.1
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Amendment by Plan Sponsor.
The Plan Sponsor reserves the right to amend the Plan (for itself and each Employer) through action of its Board of Directors. No amendment can directly or indirectly deprive any current or former Participant or Beneficiary of all or any portion of his Account which had accrued and vested prior to the amendment.
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10.2
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Plan Termination Following Change in Control or Corporate Dissolution.
If so elected by the Plan Sponsor in 11.01 of the Adoption Agreement, the Plan Sponsor reserves the right to terminate the Plan and distribute all amounts credited to all Participant Accounts within the 30 days preceding or the twelve months following a Change in Control as determined in accordance with the rules set forth in Section 9.7. For this purpose, the Plan will be treated as terminated only if all agreements, methods, programs and other arrangements sponsored by the Related Employer immediately after the Change in Control which are treated as a single plan under Reg. Sec. 1.409A-1(c)(2) are also terminated so that all participants under the Plan and all similar arrangements are required to receive all amounts deferred under the terminated arrangements within twelve months of the date the Plan Sponsor irrevocably takes all necessary action to terminate the arrangements. In addition, the Plan Sponsor reserves the right to terminate the Plan within twelve months of a corporate dissolution taxed under Code Section 331 or with the approval of a bankruptcy court pursuant to 11 U. S. C
.
Section 503(b)(1)(A) provided that amounts deferred under the Plan are included in the gross incomes of Participants in the latest of (a) the calendar year in which the termination and liquidation occurs, (b) the first calendar year in which the amount is no longer subject to a substantial risk of forfeiture, or (c) the first calendar year in which payment is administratively practicable.
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10.3
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Other Plan Terminations.
The Plan Sponsor retains the discretion to terminate the Plan if (a) all arrangements sponsored by the Plan Sponsor that would be aggregated with any terminated arrangement under Code Section 409A and Reg. Sec. 1.409A-1(c)(2) are terminated, (b) no payments other than payments that would be payable under
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11.1
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Establishment of Trust.
The Plan Sponsor may but is not required to establish a trust to hold amounts which the Plan Sponsor may contribute from time to time to correspond to some or all amounts credited to Participants under Section 6.2. In the event that the Plan Sponsor wishes to establish a trust to provide a source of funds for the payment of Plan benefits, any such trust shall be constructed to constitute an unfunded arrangement that does not affect the status of the Plan as an unfunded plan for purposes of Title I of ERISA and the Code. If the Plan Sponsor elects to establish a trust in accordance with Section 10
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01 of the Adoption Agreement, the provisions of Sections 11.2 and 11.3 shall become operative.
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11.2
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Rabbi Trust.
Any trust established by the Plan Sponsor shall be between the Plan Sponsor and a trustee pursuant to a separate written agreement under which assets are held, administered and managed, subject to the claims of the Plan Sponsor's creditors in the event of the Plan Sponsor's insolvency. The trust is intended to be treated as a rabbi trust in accordance with existing guidance of the Internal Revenue Service, and the establishment of the trust shall not cause the Participant to realize current income on amounts contributed thereto. The Plan Sponsor must notify the trustee in the event of a bankruptcy or insolvency.
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11.3
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Investment of Trust Funds.
Any amounts contributed to the trust by the Plan Sponsor shall be invested by the trustee in accordance with the provisions of the trust and the instructions of the Administrator. Trust investments need not reflect the hypothetical investments selected by Participants under Section 7.1 for the purpose of adjusting Accounts and the earnings or investment results of the trust need not affect the hypothetical investment adjustments to Participant Accounts under the Plan.
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12.1
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Powers and Responsibilities of the Administrator.
The Administrator has the full power and the full responsibility to administer the Plan in all of its details, subject, however, to the applicable requirements of ERISA. The Administrator's powers and responsibilities include, but are not limited to, the following:
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12.3
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Plan Administrative Costs.
All reasonable costs and expenses (including legal, accounting, and employee communication fees) incurred by the Administrator in administering the Plan shall be paid by the Plan to the extent not paid by the Employer.
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13.1
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Unsecured General Creditor of the Employer.
Participants and their Beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of the Employer. For purposes of the payment of benefits under the Plan, any and all of the Employer's assets shall be, and shall remain, the general, unpledged, unrestricted assets of the Employer. Each Employer's obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future.
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13.2
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Employer's Liability
.
Each Employer's liability for the payment of benefits under the Plan shall be defined only by the Plan and by the deferral agreements entered into between a Participant and the Employer. An Employer shall have no obligation or liability to a Participant under the Plan except as provided by the Plan and a deferral agreement or agreements. An Employer shall have no liability to Participants employed by other Employers.
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13.3
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Limitation of Rights
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Neither the establishment of the Plan, nor any amendment thereof, nor the creation of any fund or account, nor the payment of any benefits, will be construed as giving to the Participant or any other person any legal or equitable right against the Employer, the Plan or the Administrator, except as provided herein; and in no event will the terms of employment or service of the Participant be modified or in any way affected hereby.
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13.4
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Anti-Assignment
.
Except as may be necessary to fulfill a domestic relations order within the meaning of Code Section 414(p), none of the benefits or rights of a Participant or any Beneficiary of a Participant shall be subject to the claim of any creditor. In particular, to the fullest extent permitted by law, all such benefits and rights shall be free from attachment, garnishment, or any other legal or equitable process available to any creditor of the Participant and his or her Beneficiary. Neither the Participant nor his or her Beneficiary shall have the right to alienate, anticipate, commute, pledge, encumber, or assign any of the payments which he or she may expect to receive, contingently or otherwise, under the Plan, except the right to designate a Beneficiary to receive death benefits provided hereunder. Notwithstanding the preceding, the benefit payable from a Participant's Account may be reduced, at the discretion of the administrator, to satisfy any debt or liability to the Employer.
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13.5
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Facility of Payment
.
If the Administrator determines, on the basis of medical reports or other evidence satisfactory to the Administrator, that the recipient of any benefit payments under the Plan is incapable of handling his affairs by reason of minority, illness, infirmity or other incapacity, the Administrator may direct the Employer to disburse such payments to a person or institution designated by a court which has jurisdiction over such recipient or a person or institution otherwise having the legal authority under State law for the care and control of such recipient. The receipt by such person or institution of any such payments therefore, and any such payment to the extent thereof, shall discharge the liability of the Employer, the Plan and the Administrator for the payment of benefits hereunder to such recipient.
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13.6
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Notices.
Any notice or other communication to the Employer or Administrator in connection with the Plan shall be deemed delivered in writing if addressed to the Plan Sponsor at the address specified in Section 1.03 of the Adoption Agreement and if either actually delivered at said address or, in the case or a letter, 5 business days shall have elapsed after the same shall have been deposited in the United States mails, first-class postage prepaid and registered or certified.
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13.7
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Tax Withholding
.
If the Employer concludes that tax is owing with respect to any deferral or payment hereunder, the Employer shall withhold such amounts from any payments due the Participant or from amounts deferred, as permitted by law, or otherwise make appropriate arrangements with the Participant or his Beneficiary for satisfaction of such obligation. Tax, for purposes of this Section 13.7 means any federal, state, local or any other governmental income tax, employment or payroll tax, excise tax, or any other tax or assessment owing with respect to amounts deferred, any earnings thereon, and any payments made to Participants under the Plan.
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13.8
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Indemnification.
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13.9
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Successors
.
The provisions of the Plan shall bind and inure to the benefit of the Plan Sponsor, the Employer and their successors and assigns and the Participant and the Participant's designated Beneficiaries.
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(a)
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adopts a new plan as of
May 1, 2013
[month, day, year]
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(b)
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amends and restates its existing plan as of
[month, day, year] which is the Amendment Restatement Date. Except as otherwise provided in Appendix A, all amounts deferred under the Plan prior to the Amendment Restatement Date shall be governed by the terms of the Plan as in effect on the day before the Amendment Restatement Date.
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1.02
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PLAN
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1.03
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PLAN SPONSOR
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Name:
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U.S. Concrete, Inc.
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Address:
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331 North Main Street, Euless, TX 76039
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Phone # :
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(821935)
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EIN:
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Fiscal Yr:
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Yes
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No
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1.04
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EMPLOYER
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Not Applicable
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Yes
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No
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1.05
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ADMINISTRATOR
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Name:
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U.S. Concrete, Inc. 401(k) Committee
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Address:
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331 North Main Street, Euless, TX 76039
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Note
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The Administrator is the person or persons designated by the Plan Sponsor to be responsible for the administration of the Plan. Neither Fidelity Employer Services Company nor any other Fidelity affiliate can be the Administrator.
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1.06
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KEY EMPLOYEE DETERMINATION DATES
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2.01
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PARTICIPATION
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All employees with a pay grade of 16 or above
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3.01
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COMPENSATION
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(a)
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Compensation is defined as:
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Base compensation and bonus
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(b)
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Compensation as defined in
[insert name of qualified plan] without regard to the limitation in Section 401(a)(17) of the Code for such Plan Year.
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(c)
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Director Compensation is defined as:
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(d)
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Compensation shall, for all Plan purposes, be limited to $
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(e)
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Not Applicable.
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3.02
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BONUSES
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Type
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Will be treated as Performance
Based Compensation
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Yes
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No
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Annual Bonus
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Not Applicable.
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4.01
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PARTICIPANT CONTRIBUTIONS
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(a)
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Amount of Deferrals
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(i)
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Compensation Other than Bonuses [do not complete if you complete (iii)]
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(ii)
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Bonuses [do not complete if you complete (iii)]
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(iii)
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Compensation [do not complete if you completed (i) and (ii)]
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Dollar Amount
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% Amount
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Increment
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Min
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Max
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Min
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Max
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(iv)
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Director Compensation
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Type of Compensation
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Dollar Amount
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% Amount
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Increment
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Min
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Max
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Min
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Max
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Annual Retainer
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Meeting Fees
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Other:
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Other:
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(b)
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Election Period
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(i)
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Performance Based Compensation
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Does
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Does Not
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(ii)
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Newly Eligible Participants
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May
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May Not
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(c)
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Revocation of Deferral Agreement
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Will
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Will Not
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(d)
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No Participant Contributions
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5.01
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EMPLOYER CONTRIBUTIONS
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(a)
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Matching Contributions
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(i)
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Amount
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(A)
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[insert percentage] of the Compensation the Participant has elected to defer for the Plan Year
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(B)
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An amount determined by the Employer in its sole discretion
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(C)
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Matching Contributions for each Participant shall be limited to $
and/or
% of Compensation.
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(D)
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Other:
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(E)
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Not Applicable [Proceed to Section 5.01(b)]
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(ii)
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Eligibility for Matching Contribution
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(A)
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Describe requirements:
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(B)
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Is selected by the Employer in its sole discretion to receive an allocation of Matching Contributions
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(C)
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No requirements
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(iii)
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Time of Allocation
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(A)
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As of the last day of the Plan Year
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(B)
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At such times as the Employer shall determine in it sole discretion
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(C)
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At the time the Compensation on account of which the Matching Contribution is being made would otherwise have been paid to the Participant
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(D)
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Other:
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(b)
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Other Contributions
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(i)
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Amount
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(A)
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An amount equal to
[insert number] % of the Participant’s Compensation
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(B)
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An amount determined by the Employer in its sole discretion
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(C)
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Contributions for each Participant shall be limited to $
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(D)
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Other:
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(E)
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Not Applicable [Proceed to Section 6.01]
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(ii)
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Eligibility for Other Contributions
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(A)
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Describe requirements:
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(B)
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Is selected by the Employer in its sole discretion to receive an allocation of other Employer contributions
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(C)
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No requirements
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(iii)
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Time of Allocation
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(A)
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As of the last day of the Plan Year
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(B)
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At such time or times as the Employer shall determine in its sole discretion
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(C)
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Other:
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(c)
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No Employer Contributions
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6.01
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DISTRIBUTIONS
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(a)
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Timing of Distributions
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(ii)
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The timing of distributions as determined in Section 6.01(a)(i) shall be modified by the adoption of:
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(A)
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Event Delay – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for
six (6)
months [insert number of months].
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(B)
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Hold Until Next Year – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for twelve months from the date of the event if payment pursuant to Section 6.01(a)(i) will thereby occur in the next calendar year or on the first payment date in the next calendar year in all other cases.
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(C)
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Immediate Processing – The timing method selected by the Plan Sponsor under Section 6.01(a)(i) shall be overridden for the following distribution events [insert events]:
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(D)
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Not applicable.
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(b)
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Distribution Events
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Lump Sum
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Installments
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(i)
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Specified Date
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years
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(ii)
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Specified Age
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years
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(iii)
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Separation from Service
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_____
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years
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(iv)
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Separation from Service plus 6 months
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years
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(v)
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Separation from Service plus
months [not to exceed
months]
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years
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(vi)
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Retirement
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years
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(vii)
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Retirement plus 6 months
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years
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(viii)
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Retirement plus
months [not to exceed
months]
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years
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(ix)
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Disability
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years
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(x)
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Death
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years
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(xi)
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Change in Control
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years
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Monthly
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Quarterly
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Annually
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(c)
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Specified Date and Specified Age elections may not extend beyond age
Not Applicable
[insert age or “Not Applicable” if no maximum age applies].
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(d)
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Payment Election Override
Payment of the remaining vested balance of the Participant’s Account will automatically occur at the time specified in Section 6.01(a) of the Adoption Agreement in the form indicated upon the earliest to occur of the following events [check each event that applies and for each event include only a single form of payment]: |
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EVENTS
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FORM OF PAYMENT
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Separation from Service
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X
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Lump sum
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Installments
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Separation from
Service before Retirement
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Lump sum
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Installments
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Death
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X
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Lump sum
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Installments
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Disability
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X
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Lump sum
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Installments
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Not Applicable
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(e)
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Involuntary Cashouts
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If the Participant’s vested Account at the time of his Separation from Service does not exceed $
distribution of the vested Account shall automatically be made in the form of a single lump sum in accordance with Section 9.5 of the Plan.
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There are no involuntary cashouts.
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(f)
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Retirement
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Retirement shall be defined as a Separation from Service that occurs on or after the Participant [insert description of requirements]:
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No special definition of Retirement applies.
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(g)
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Distribution Election Change
A Participant |
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Shall
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Shall Not
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(h)
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Frequency of Elections
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Has
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Has Not
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7.01
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VESTING
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(a)
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Matching Contributions
The Participant’s vested interest in the amount credited to his Account attributable to Matching Contributions shall be based on the following schedule: |
(b)
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Other Employer Contributions
The Participant’s vested interest in the amount credited to his Account attributable to Employer contributions other than Matching Contributions shall be based on the following schedule: |
(c)
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Acceleration of Vesting
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(i)
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Death
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(ii)
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Disability
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(iii)
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Change in Control
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(iv)
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Eligibility for Retirement
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(v)
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Other:
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(vi)
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Not applicable.
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(d)
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Years of Service
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(i)
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A Participant’s Years of Service shall include all service performed for the Employer and
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Shall
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Shall Not
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(ii)
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Years of Service shall also include service performed for the following entities:
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(iii)
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Years of Service shall be determined in accordance with (select one)
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(A)
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The elapsed time method in Treas. Reg. Sec. 1.410(a)-7
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(B)
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The general method in DOL Reg. Sec. 2530.200b-1 through b-4
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(C)
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The Participant’s Years of Service credited under [insert name of plan]
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(D)
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Other:
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(iv)
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Not applicable.
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8.01
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UNFORESEEABLE EMERGENCY
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Will
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Will Not [if Unforeseeable Emergency withdrawals are not permitted, proceed to Section 9.01]
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(b)
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Upon a withdrawal due to an Unforeseeable Emergency, a Participant’s deferral election for the remainder of the Plan Year:
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Will
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Will Not
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9.01
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INVESTMENT DECISIONS
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(a)
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The Participant or his Beneficiary
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(b)
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The Employer
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10.01
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TRUST
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Does
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Does Not
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11.01
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TERMINATION UPON CHANGE IN CONTROL
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Reserves
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Does Not Reserve
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11.02
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AUTOMATIC DISTRIBUTION UPON CHANGE IN CONTROL
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Shall
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Shall Not
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11.03
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CHANGE IN CONTROL
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(a)
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A change in the ownership of the Employer as described in Section 9.7(c) of the Plan.
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(b)
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A change in the effective control of the Employer as described in Section 9.7(d) of the Plan.
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(c)
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A change in the ownership of a substantial portion of the assets of the Employer as described in Section 9.7(e) of the Plan.
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(d)
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Not Applicable.
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12.01
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GOVERNING STATE LAW
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PLAN SPONSOR:
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By:
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Title:
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