Item 1.01 Entry into a Material Definitive Agreement
On June 6, 2021, U.S. Concrete, Inc., a Delaware corporation ("U.S. Concrete" or
the "Company"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Vulcan Materials Company, a New Jersey company ("Vulcan") and
Grizzly Merger Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary
of Vulcan ("Grizzly Merger Sub"). The Merger Agreement provides that, subject to
the terms and conditions set forth therein, Grizzly Merger Sub will merge with
and into U.S. Concrete (the "Merger"), with U.S. Concrete surviving the Merger
and becoming a wholly-owned subsidiary of Vulcan. Capitalized terms used but not
defined in this Current Report on Form 8-K will have the meaning given to such
terms in the Merger Agreement.
Subject to the terms and conditions set forth in the Merger Agreement, at the
effective time of the Merger (the "Effective Time"), each issued and outstanding
share of common stock, par value $0.001 per share, of the Company (the "Company
Common Stock") (other than such shares (i) owned by U.S. Concrete, Vulcan or
Grizzly Merger Sub or owned by any wholly owned subsidiary of Vulcan (other than
Grizzly Merger Sub) or of U.S. Concrete or (ii) exercising dissenters rights in
accordance with Section 262 of the General Corporation Law of the State of
Delaware) will be converted into the right to receive $74.00 in cash, without
interest (the "Merger Consideration").
If the Merger is consummated, the Company Common Stock will be delisted from
Nasdaq and deregistered under the Securities Exchange Act of 1934, as amended.
Treatment of Equity Awards
Pursuant to the Merger Agreement, at the Effective Time, each outstanding
restricted stock unit award covering shares of Company Common Stock ("Company
RSU Award") will become vested and be settled in cash, without interest, in an
amount equal to the Merger Consideration. The number of shares of Company Common
Stock subject to any portion of any RSU award that vests based on achievement of
pre-established performance criteria that will be settled in cash will be
determined in accordance with the terms of the applicable Company RSU Award
agreement and, to the extent applicable, any other written agreement between the
Company and the holder of the Company RSU Award.
Conditions to the Merger
The consummation of the Merger is subject to certain closing conditions set
forth in the Merger Agreement, including, (i) approval of the Merger by the
holders of a majority of the outstanding shares of Company Common Stock (the
"Company Stockholder Approval"), (ii) the absence of any law or injunction order
(whether temporary, preliminary or permanent) by any governmental entity that
has the effect of restraining, enjoining or otherwise prohibiting the
consummation of the Merger and (iii) the expiration or termination of the
waiting period under the United States Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the rules and regulations promulgated thereunder.
Each party's obligation to complete the Merger is also subject to certain
additional conditions, including (i) subject to certain exceptions, the accuracy
of the representations and warranties of the other party, (ii) the absence of a
material adverse effect with respect to U.S. Concrete and (iii) performance in
all material respects by the other party of its obligations under the Merger
Agreement.
Representations and Warranties; Covenants
The Merger Agreement contains customary representations, warranties and
covenants, including, among others, covenants requiring U.S. Concrete to conduct
its business in the ordinary course consistent with past practice during the
period between the execution of the Merger Agreement and the Effective Time and
to use reasonable best efforts to obtain required government approvals, subject
to certain exceptions.
Pursuant to the Merger Agreement, between the date of the signing of the Merger
Agreement and the earlier of its termination or the Effective Time, the Company
has agreed not to solicit, initiate, knowingly encourage or knowingly facilitate
any alternative transaction proposals from third parties or to engage in
discussions or negotiations with third parties regarding any alternative
transaction proposals, in each case subject to certain exceptions. The Board of
Directors of the Company (the "Company Board of Directors") may change its
recommendation to its stockholders or terminate the Merger Agreement in response
to a superior proposal or change its recommendation in response to an
intervening event if the Company Board of Directors determines in good faith
after consultation with the Company's outside legal counsel, that the failure to
take such action would be reasonably likely to constitute a breach of the
directors' fiduciary duties under applicable law, subject to complying with
notice, and other specified, conditions, including giving Vulcan the opportunity
to propose revisions to the terms of the Merger Agreement during a period
following such notice.
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Termination and Termination Fees
The Merger Agreement contains certain termination rights, including (x) the
right of either party to terminate the Merger Agreement if (a) the parties
mutually consent to terminate in writing, (b) there has been a breach of any
representation, warranty, covenant or agreement made by the other party in the
Merger Agreement such that a closing condition would not be satisfied (subject
to cure rights), (c) the Merger does not occur by March 6, 2022 (which date may
be extended by three months to June 6, 2022 if the only then-outstanding closing
conditions relate to regulatory approval) (such date, as may be extended, the
"Outside Date"), (d) there is a final, non-appealable order, injunction, decree
or ruling permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger; or (e) U.S. Concrete is unable to obtain the Company
Stockholder Approval; (y) the right of Vulcan to terminate the Merger Agreement
if, prior to the Company Stockholder Approval, the Company Board of Directors
changes its recommendation in favor of the Merger; and (z) the right of U.S.
Concrete to terminate the Merger Agreement, prior to receiving the Company
Stockholder Approval, in order to enter into a definitive agreement for a
superior proposal (so long as U.S. Concrete complies in all material respects
with the non-solicitation provisions in the Merger Agreement).
The Merger Agreement provides that U.S. Concrete must pay Vulcan a termination
fee equal to $50 million if the Merger Agreement is terminated in certain
circumstances, including (i) in the circumstances described in clauses (y) and
(z) in the preceding paragraph; (ii) if either party terminates the Merger
Agreement due to the failure to obtain the Company Stockholder Approval, an
acquisition proposal is made public and not publicly withdrawn at least two
business days prior to the Company's stockholders meeting and within 12 months
of such termination, an acquisition proposal is consummated or a definitive
agreement is entered into with respect to an acquisition proposal; or (iii) if
(a) prior to the termination of the Merger Agreement, an acquisition proposal is
made to U.S. Concrete or becomes publicly disclosed and is not withdrawn prior
to such termination, (b) either party terminates the Merger Agreement because
the Outside Date has been reached (unless the Parent Termination Fee is then
payable) or Vulcan terminates the Merger Agreement due to U.S. Concrete's breach
of one or more covenants of the Merger Agreement after the receipt of such
acquisition proposal and (c) within 12 months of such termination, an
acquisition proposal is consummated or a definitive agreement is entered into
with respect to an acquisition proposal.
Additionally, the Merger Agreement provides that Vulcan must pay U.S. Concrete a
termination fee (the "Parent Termination Fee") equal to $50 million if the
Merger Agreement is terminated in certain circumstances related to the failure
to obtain required regulatory approvals prior to the Outside Date.
Additional Information
The foregoing description of the Merger Agreement does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of
the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is
incorporated by reference herein.
Important Statement regarding the Merger Agreement. The Merger Agreement has
been included to provide investors with information regarding its terms. It is
not intended to provide any other factual information about U.S. Concrete,
Vulcan, Grizzly Merger Sub or their respective subsidiaries or affiliates or to
modify or supplement any factual disclosures about U.S. Concrete included in its
public reports filed with the Securities and Exchange Commission ("SEC"). The
representations, warranties and covenants contained in the Merger Agreement were
made only for purposes of the Merger Agreement and as of the specific dates
therein, were solely for the benefit of the parties to the Merger Agreement, may
be subject to limitations, qualifications or other particulars agreed upon, by
the contracting parties, including being qualified by confidential disclosures
made for the purposes of allocating contractual risk among the parties to the
Merger Agreement instead of establishing these matters as facts or made for
other purposes, and may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to investors. Investors
are not third-party beneficiaries under the Merger Agreement and should not rely
. . .
Item 8.01 Other Events
On June 7, 2021, the Company and Vulcan issued a joint press release regarding
the Merger. On June 7, 2021, the Company also made available a related
infographic. Copies of the press release and the infographic are attached hereto
as Exhibit 99.1 and Exhibit 99.2, respectively, and are incorporated by
reference herein.
No Offer or Solicitation / Additional Information and Where To Find It
This communication is for informational purposes only and does not constitute an
offer to sell or the solicitation of an offer to buy any securities, or a
solicitation of any vote or approval, nor shall there be any sale, issuance or
transfer of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. No offer of securities shall be made
except by means of a prospectus meeting the requirements of Section 10 of the
Securities Act of 1933, as amended.
This communication is being made in connection with the proposed transaction
between Vulcan and U.S. Concrete. In connection with the proposed transaction,
U.S. Concrete intends to file a proxy statement with the SEC. Each of Vulcan and
U.S. Concrete may also file other relevant documents with the SEC regarding the
proposed transaction. The information in the preliminary proxy statement will
not be complete and may be changed. The definitive proxy statement will be
delivered to stockholders of U.S. Concrete. This communication is not a
substitute for any proxy statement or any other document that may be filed with
the SEC in connection with the proposed transaction.
INVESTORS AND SECURITY HOLDERS OF U.S. CONCRETE ARE URGED TO READ THE PROXY
STATEMENT AND ANY OTHER RELEVANT DOCUMENTS THAT MAY BE FILED WITH THE SEC, AS
WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY AND IN THEIR
ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN OR WILL CONTAIN
IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Investors and security holders will be able to obtain free copies of the
preliminary proxy statement and the definitive proxy statement (in each case, if
and when available) and other documents containing important information about
Vulcan, U.S. Concrete and the proposed transaction once such documents are filed
with the SEC through the website maintained by the SEC at http://www.sec.gov.
Copies of the documents filed with the SEC by Vulcan will be available free of
charge on Vulcan's website at https://www.vulcanmaterials.com. Copies of the
documents filed with the SEC by U.S. Concrete will be available free of charge
on U.S. Concrete's website at https://www.us-concrete.com.
Participants in the Solicitation
Vulcan, U.S. Concrete, their respective directors and certain of their
respective executive officers and employees may be deemed to be participants in
the solicitation of proxies from U.S. Concrete's stockholders in connection with
the proposed transaction. Information regarding the persons who may, under the
rules of the SEC, be deemed participants in the solicitation of U.S. Concrete
stockholders in connection with the proposed transaction, including a
description of their direct or indirect interests, by security holdings or
otherwise, will be set forth in the proxy statement when it is filed with the
SEC. Information about these persons is included in each company's annual proxy
statement and in other documents subsequently filed with the SEC, and will be
included in the proxy statement when filed.
Cautionary Statement Regarding Forward-Looking Statements
This communication contains "forward-looking statements" as that term is defined
under the Private Securities Litigation Reform Act of 1995 and other securities
laws, regarding Vulcan and U.S. Concrete, including, but not limited to,
statements about the benefits of the proposed transaction of Vulcan and U.S.,
including future financial and operating results, Vulcan's or U.S. Concrete's
plans, objectives, expectations and intentions and the expected timing of
completion of the proposed transaction. You can generally identify
forward-looking statements by the use of forward-looking terminology such as
"anticipate," "believe," "continue," "could," "estimate," "expect," "explore,"
"evaluate," "intend," "may," "might," "plan," "potential," "predict," "project,"
"seek," "should," or "will," or the negative thereof or other variations thereon
or comparable terminology. These forward-looking statements are based on each of
the companies' current plans, objectives, estimates, expectations and intentions
and inherently involve significant risks and uncertainties, many of which are
beyond Vulcan's or U.S. Concrete's control. Actual results and the timing of
events could differ materially from those anticipated in such forward-looking
statements as a result of these risks and uncertainties, which include, without
limitation, risks and uncertainties associated with: Vulcan's and U.S.
Concrete's ability to complete the transaction on the proposed terms or on the
anticipated timeline, or at all, including risks and uncertainties related to
securing the necessary regulatory and stockholder approvals and the satisfaction
of other closing conditions to consummate the proposed transaction; the
occurrence of any event, change or other circumstance that could give rise to
the termination of the definitive merger agreement relating to the proposed
transaction; failure to realize the expected benefits of the proposed
transaction; significant transaction costs and/or unknown or
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inestimable liabilities; the risk that U.S. Concrete's business will not be
integrated successfully or that such integration may be more difficult,
time-consuming or costly than expected; Vulcan's ability to obtain the expected
financing to consummate the proposed transaction; risks related to future
opportunities and plans for the combined company, including the uncertainty of
expected future regulatory filings, financial performance and results of the
combined company following completion of the proposed transaction; disruption
from the proposed transaction, making it more difficult to conduct business as
usual or maintain relationships with customers, employees or suppliers; effects
relating to the announcement of the proposed transaction or any further
announcements or the consummation of the transaction on the market price of
Vulcan's or U.S. Concrete's common stock; the possibility that, if Vulcan does
not achieve the perceived benefits of the proposed transaction as rapidly or to
the extent anticipated by financial analysts or investors, the market price of
Vulcan's common stock could decline; the risk of potential shareholder
litigation associated with the possible transaction, including resulting expense
or delay; regulatory initiatives and changes in tax laws; the impact of the
COVID-19 pandemic on the operations and financial results of Vulcan, U.S.
Concrete or the combined company; general economic conditions; and other risks
and uncertainties affecting Vulcan and U.S. Concrete, including those described
from time to time under the caption "Risk Factors" and elsewhere in Vulcan's and
U.S. Concrete's SEC filings and reports, including Vulcan's Annual Report on
Form 10-K for the year ended December 31, 2020 and Quarterly Report on Form 10-Q
for the quarter ended March 31, 2021, U.S. Concrete's Annual Report on Form 10-K
for the year ended December 31, 2020 and Quarterly Report on Form 10-Q for the
quarter ended March 31, 2021, and future filings and reports by either company.
Moreover, other risks and uncertainties of which Vulcan or U.S. Concrete are not
currently aware may also affect each of the companies' forward-looking
statements and may cause actual results and the timing of events to differ
materially from those anticipated. Vulcan and U.S. Concrete caution investors
that such forward-looking statements are not guarantees of future performance
and that undue reliance should not be placed on such forward-looking statements.
The forward-looking statements made in this communication are made only as of
the date hereof or as of the dates indicated in the forward-looking statements
and reflect the views stated therein with respect to future events as at such
dates, even if they are subsequently made available by Vulcan or U.S. Concrete
on their respective websites or otherwise. Neither Vulcan nor U.S. Concrete
undertakes any obligation to update or supplement any forward-looking statements
to reflect actual results, new information, future events, changes in its
expectations or other circumstances that exist after the date as of which the
forward-looking statements were made.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit
Number Description of Exhibit
2.1* Agreement and Plan of Merger, dated as of June 6, 2021, by and among
Vulcan Materials Company, Grizzly Merger Sub I, Inc. and U.S.
Concrete, Inc.
99.1 Press Release, dated June 7, 2021.
99.2 Infographic
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
* Certain schedules to the Agreement and Plan of Merger have been omitted from
this filing pursuant to Item 601(b)(2) of Regulation S-K. Registrant will
furnish copies of such schedules to the SEC upon request by the SEC.
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