ex103indemnificationagre







       1    INDEMNIFICATION AGREEMENT   FOR    RONNIE PRUITT      THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is effective as of   October 26, 2015, by and between U.S. Concrete, Inc., a Delaware corporation (the   “Company”), and Ronnie Pruitt (“Indemnitee”).       Highly competent persons have become more reluctant to serve corporations as directors   or in other capacities unless they are provided with adequate protection through insurance or   adequate indemnification against inordinate risks of claims and actions against them arising out   of their service to and activities on behalf of corporations.      The Board of Directors of the Company (the “Board”) has determined that, in order to   attract and retain qualified individuals, the Company will maintain on an ongoing basis, at its   sole expense, liability insurance to protect persons serving the Company and its subsidiaries from   certain liabilities.  Although the furnishing of that insurance has been a customary and   widespread practice among United States-based corporations and other business enterprises, the   Board believes that, given current market conditions and trends, that insurance may be available   to it in the future only at higher premiums and with more exclusions.  At the same time,   directors, officers and other persons in service to corporations or business enterprises   increasingly are being subjected to expensive and time-consuming litigation relating to, among   other matters, matters that traditionally would have been brought only against the corporation or   business enterprise itself.  The uncertainties relating to liability insurance and to indemnification   have increased the difficulty of attracting and retaining those persons, and the Board has   determined that (i) this increased difficulty is detrimental to the best interests of the Company’s   stockholders and that the Company  should act to assure those persons that there will be   increased certainty of such protection in the future and (ii) it is reasonable, prudent and necessary   for the Company contractually to obligate itself to indemnify those persons to the fullest extent   applicable law permits so that they will serve or continue to serve the Company free from undue   concern that they will not be so indemnified.      The Third Amended and Restated Bylaws (“Bylaws”) of the Company require   indemnification of the officers and directors of the Company.  Indemnitee may also be entitled to   indemnification pursuant to the Delaware General Corporation Law (“DGCL”).  The Bylaws and   the DGCL expressly provide that the indemnification provisions set forth therein are not   exclusive, and thereby contemplate that contracts may be entered into between the Company and   members of the board of directors, officers and other persons with respect to indemnification.      This Agreement is a supplement to and in furtherance of the Bylaws of the Company and   any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to   diminish or abrogate any rights of Indemnitee thereunder.        





 







       2   The Indemnitee may not be willing to serve as an officer or director without adequate   protection, and the Company desires Indemnitee to serve in such capacity.  Indemnitee is willing   to serve, continue to serve and to take on additional service for or on behalf of the Company on   the condition that she be so indemnified.      NOW, THEREFORE, in consideration of the premises and the covenants herein, the   parties to this Agreement agree as follows:      Section 1. Services by Indemnitee.  Indemnitee agrees to serve as an officer of   the Company and, as mutually agreed by Indemnitee and the Company, as a director, officer,   trustee, general partner, managing member, employee, agent or fiduciary of other corporations,   limited liability companies, partnerships, joint ventures, trusts or other enterprises (including,   without limitation, employee benefit plans) (each, an “Enterprise”).  Indemnitee may at any time   and for any reason resign from any such position (subject to any other contractual obligation or   any obligation applicable law imposes), in which event the Company will have no obligation   under this Agreement to continue Indemnitee in that position.  This Agreement is not and is not   to be construed as an employment contract between the Company (or any of its subsidiaries) and   Indemnitee.  Indemnitee specifically acknowledges that Indemnitee’s employment with the   Company (or any of its subsidiaries), if any, is at will, and the Indemnitee may be discharged at   any time for any reason, with or without cause, except as may be otherwise provided in any   written employment contract between Indemnitee and the Company (or any of its subsidiaries),   other applicable formal severance policies duly adopted by the Board or, with respect to service   as a director of the Company, by the Company’s Amended and Restated Certificate of   Incorporation, Bylaws  and the DGCL.  The foregoing notwithstanding, subject to Section 12,   this Agreement will continue in force after Indemnitee has ceased to serve as an officer or   director of the Company and no longer serves at the request of the Company as a director, officer,   employee, agent or fiduciary of any other Enterprise.      Section 2. Indemnification—General.  The Company will indemnify, and   advance Expenses (as hereinafter defined) to, Indemnitee (i) as this Agreement permits and   (ii) (subject to the provisions hereof) to the fullest extent applicable law in effect on the date   hereof and as amended from time to time permits.  The rights the preceding sentence provide to   Indemnitee will include, but will not be limited to, the rights the other Sections hereof set forth.      Section 3. Proceedings Other Than by or in the Right of the Company.    Indemnitee will be entitled to the rights of indemnification this Section 3 provides if, by reason   of her Corporate Status, she is, or is threatened to be made, a party to or a participant in any   threatened, pending or completed Proceeding (as hereinafter defined), other than a Proceeding by   or in the right of the Company.  Pursuant to this Section 3, the Company will indemnify   Indemnitee against, and will hold Indemnitee harmless from and in respect of, all Expenses,   judgments, penalties, fines (including excise taxes) and amounts paid in settlement (including all   interest, assessments and other charges paid or payable in connection with or in respect of those   Expenses, judgments, fines, penalties or amounts paid in settlement) actually and reasonably   incurred by her or on her behalf in connection with that Proceeding or any claim, issue or matter     





 







       3   therein, if she acted in good faith and in a manner she reasonably believed to be in or not opposed   to the best interests of the Company and, with respect to any criminal Proceeding, had no   reasonable cause to believe her conduct was unlawful.      Section 4. Proceedings by or in the Right of the Company.  Indemnitee will   be entitled to the rights of indemnification this Section 4 provides if, by reason of her Corporate   Status, she is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in   any threatened, pending or completed Proceeding brought by or in the right of the Company to   procure a judgment in its favor.  Pursuant to this Section 4, the Company will indemnify   Indemnitee against, and will hold Indemnitee harmless from and in respect of, all Expenses   actually and reasonably incurred by her or on her behalf in connection with that Proceeding if she   acted in good faith and in a manner she reasonably believed to be in or not opposed to the best   interests of the Company; provided, however, that no indemnification against those Expenses   will be made in respect of any claim, issue or matter in that Proceeding as to which Indemnitee   has been adjudged to be liable to the Company unless and to the extent that the Court of   Chancery, or the court in which that Proceeding has been brought or is pending, determines that   despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is   fairly and reasonably entitled to indemnification.      Section 5. Indemnification for Expenses of a Party Who Is Wholly or Partly   Successful.  Notwithstanding any other provision hereof, to the extent that Indemnitee is, by   reason of her Corporate Status, a party to (or a participant in) and is successful, on the merits or   otherwise, in defense of any Proceeding, the Company will indemnify her against all Expenses   actually and reasonably incurred by her or on her behalf in connection therewith. If Indemnitee is   not wholly successful in defense of any Proceeding but is successful, on the merits or otherwise,   as to one or more but less than all claims, issues or matters in that Proceeding, the Company will   indemnify Indemnitee against all Expenses actually and reasonably incurred by her or on her   behalf in connection with each successfully resolved claim, issue or matter.  For purposes of this   Section 5 and without limitation, the termination of any claim, issue or matter in any Proceeding   by dismissal, with or without prejudice, will be deemed to be a successful result as to that claim,   issue or matter.      Section 6. Indemnification for Expenses as a Witness. Notwithstanding any   other provision hereof, to the extent that Indemnitee is, by reason of her Corporate Status, a   witness in any Proceeding to which Indemnitee is not a party, the Company will indemnify her   against all Expenses actually and reasonably incurred by her or on her behalf in connection   therewith.      Section 7.  Advancement of Expenses. The Company will advance all   reasonable Expenses incurred by or on behalf of Indemnitee in connection with any Proceeding   within 10 business days after the Company receives a statement or statements from Indemnitee   requesting such advance or advances from time to time, whether prior to or after final disposition   of that Proceeding.  Each such statement must reasonably evidence the Expenses incurred by or   on behalf of Indemnitee and include or be preceded or accompanied by an undertaking by or on     





 







       4   behalf of Indemnitee to repay any Expenses advanced if it ultimately is determined that   Indemnitee is not entitled to be indemnified by the Company against those Expenses.  The   Company will accept any such undertaking and advance such Expenses without reference to the   financial ability of Indemnitee to make repayment, and without regard to Indemnitee’s ultimate   entitlement to indemnification under other provisions of this Agreement.      Section 8. Procedure for Determination of Entitlement to Indemnification.        (a) Within thirty (30) days after the actual receipt by Indemnitee of notice that   she is a party to or a participant (as a witness or otherwise) in any Proceeding, Indemnitee shall   submit to the Company a written notice identifying the Proceeding.  The omission by the   Indemnitee to notify the Company will not relieve the Company from any liability which it may   have to Indemnitee (i) otherwise than under this Agreement, and (ii) under this Agreement only   to the extent the Company can establish that such omission to notify resulted in actual prejudice   to the Company.      (b) Indemnitee shall thereafter deliver to the Company a written application to   indemnify Indemnitee in accordance with this Agreement.  Such application(s) may be delivered   from time to time and at such time(s) as Indemnitee deems appropriate in her sole discretion.    Following such a written application for indemnification by Indemnitee, the Indemnitee's   entitlement to indemnification shall be determined according to Section 8(c) of this Agreement.      (c) On written request by Indemnitee for indemnification pursuant to Section   8(b), a determination, if applicable law requires, with respect to Indemnitee’s entitlement thereto   will be made in the specific case: (i) by a majority vote of the Disinterested Directors, even   though less than a quorum of the Board, or (ii) if so requested by the Indemnitee in her sole   discretion by an Independent Counsel in a written opinion to the Board, a copy of which will be   delivered to Indemnitee.  If it is so determined that Indemnitee is entitled to indemnification   hereunder, the Company will:  (i) within 10 business days after that determination pay to   Indemnitee all amounts theretofore incurred by or on behalf of Indemnitee in respect of which   Indemnitee is entitled to that indemnification by reason of that determination; and (ii) thereafter   on written request by Indemnitee, pay to Indemnitee within 10 business days after that request   such additional amounts theretofore incurred by or on behalf of Indemnitee in respect of which   Indemnitee is entitled to that indemnification by reason of that determination.  Indemnitee will   cooperate with the person, persons or entity making the determination with respect to   Indemnitee’s entitlement to indemnification under this Agreement, including providing to such   person, persons or entity on reasonable advance request any documentation or information which   is (i) not privileged or otherwise protected from disclosure, (ii) reasonably available to   Indemnitee and (iii) reasonably necessary to that determination.  The Company will bear all costs   and expenses (including attorneys’ fees and disbursements) Indemnitee incurs in so cooperating   (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and hereby   indemnifies and agrees to hold Indemnitee harmless therefrom.        





 







       5   (d) If an Independent Counsel is to make the determination of entitlement to   indemnification pursuant to Section 8(c), the Independent Counsel will be selected as this   Section 8(d) provides.  If a Change of Control has not occurred, the Board will select the   Independent Counsel, and the Company will give written notice to Indemnitee advising her of the   identity of the Independent Counsel so selected.  If a Change of Control has occurred, Indemnitee   will select the Independent Counsel (unless Indemnitee requests that the Board make the   selection, in which event the preceding sentence will apply), and Indemnitee will give written   notice to the Company advising it of the identity of the Independent Counsel so selected.  In   either event, Indemnitee or the Company, as the case may be, may, within 10 business days after   the written notice of selection has been given, deliver to the Company or to Indemnitee, as the   case may be, a written objection to the selection; provided, however, that any such objection may   be asserted only on the ground that the Independent Counsel so selected is not an “Independent   Counsel” as Section 21 defines that term, and the objection must set forth with particularity the   factual basis for that assertion.  Absent a proper and timely objection, the person so selected shall   act as Independent Counsel.  If any such written objection is so made and substantiated, the   Independent Counsel so selected may not serve as Independent Counsel unless and until that   objection is withdrawn or a court of competent jurisdiction has determined that objection is   without merit.  If (i) an Independent Counsel is to make the determination of entitlement to   indemnification pursuant to Section 8(c) and (ii) within 20 days after submission by Indemnitee   of a written request for indemnification pursuant to Section 8(a), no Independent Counsel has   been selected and not objected to, either the Company or Indemnitee may petition the Court of   Chancery or other court of competent jurisdiction for resolution of any objection that has been   made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for   the appointment as Independent Counsel of a person selected by the petitioned court or by such   other person as the petitioned court designates, and the person with respect to whom all   objections are so resolved or the person so appointed will act as the Independent Counsel under   Section 8(c).  The Company will pay any and all reasonable and documented fees and expenses   the Independent Counsel incurs in connection with acting pursuant to Section 8(c), and the   Company will pay all reasonable and documented fees and expenses incident to the procedures   this Section 8(d) sets forth, regardless of the manner in which the Independent Counsel is   selected or appointed.  If (i) the Independent Counsel selected or appointed pursuant to this   Section 8(d) does not make any determination respecting Indemnitee’s entitlement to   indemnification hereunder within 45 days after the Company receives a written request therefor   and (ii) any judicial proceeding or arbitration pursuant to Section 10(a) is then commenced, that   Independent Counsel will be discharged and relieved of any further responsibility in such   capacity (subject to the applicable standards of professional conduct then prevailing).      Section 9. Presumptions and Effect of Certain Proceedings.        (a)  In making a determination with respect to entitlement to indemnification   hereunder, the person, persons or entity making that determination must presume that Indemnitee   is entitled to indemnification hereunder if Indemnitee has submitted a request for indemnification   in accordance with Section 8(a), and the Company will have the burden of proof to overcome   that presumption in connection with the making by any person, persons or entity of any     





 







       6   determination contrary to that presumption.  Neither the failure of the Company (including by its   directors or independent legal counsel) to have made a determination prior to the commencement   of any action pursuant to this Agreement that indemnification is proper in the circumstances   because Indemnitee has met the applicable standard of conduct, nor an actual determination by   the Company (including by its directors or independent legal counsel) that Indemnitee has not   met such applicable standard of conduct, shall be a defense to the action or create a presumption   that Indemnitee has not met the applicable standard of conduct.      (b) The termination of any Proceeding or of any claim, issue or matter therein,   by judgment, order, settlement or conviction, or on a plea of nolo contendere or its equivalent,   will not (except as this Agreement otherwise expressly provides) of itself adversely affect the   right of Indemnitee to indemnification hereunder or create a presumption that Indemnitee did not   act in good faith and in a manner she reasonably believed to be in or not opposed to the best   interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had   reasonable cause to believe that her conduct was unlawful.      (c) Any action Indemnitee takes or omits to take in connection with any   employee benefit plan will, if taken or omitted in good faith by Indemnitee and in a manner   Indemnitee reasonably believed to be in the interest of the participants in or beneficiaries of that   plan, be deemed to have been taken or omitted in a manner “not opposed to the best interests of   the Company” for all purposes hereof.        (d) Reliance as Safe Harbor.  For purposes of any determination of good faith,   Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the   records or books of account of the Enterprise, including financial statements, or on information   supplied to Indemnitee by the officers of the Enterprise in the course of their duties, or on the   advice of legal counsel for the Enterprise or on information or records given or reports made to   the Enterprise by an independent certified public accountant or by an appraiser or other expert   selected by  the Enterprise.  The provisions of this Section 9(d) shall not be deemed to be   exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed   or found to have met the applicable standard of conduct set forth in this Agreement.      (e) Actions of Others.  The knowledge and/or actions, or failure to act, of any   other director, trustee, partner, managing member, fiduciary, officer, agent or employee of the   Enterprise shall not be imputed to Indemnitee for purposes of determining the right to   indemnification under this Agreement.      Section 10. Remedies of Indemnitee.        (a)  In the event that (i) a determination is made pursuant to Section 8 that   Indemnitee is not entitled to indemnification hereunder, (ii) advancement of Expenses is not   timely made pursuant to Section 7, (iii) no determination as to Indemnitee’s entitlement to   indemnification shall have been made pursuant to Section 8(c) of this Agreement hereunder, or   that determination shall not have been made within 45 days after receipt by the Company of the     





 







       7   request for that indemnification, (iv) payment of indemnification is not made pursuant to Section   5 or 6 within 10 business days after receipt by the Company of a written request therefor or (v)   payment of indemnification pursuant to Section 8(c) is not made timely, Indemnitee will be   entitled to an adjudication from the Court of Chancery of her entitlement to that indemnification   or advancement of Expenses.  Alternatively, Indemnitee, at her option, may seek an award in   arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of   the American Arbitration Association.  Indemnitee must commence any such proceeding seeking   an adjudication or an award in arbitration within 180 days following the date on which   Indemnitee first has the right to commence that proceeding pursuant to this Section 10(a);   provided, however, that this sentence will not apply in respect of a proceeding brought by   Indemnitee to enforce her rights under Section 5.      (b) If a determination has been made pursuant to Section 8(c) that Indemnitee   is not entitled to indemnification hereunder, any judicial proceeding or arbitration commenced   pursuant to this Section 10 will be conducted in all respects as a de novo trial, or arbitration, on   the merits and Indemnitee will not be prejudiced by reason of that adverse determination.  In any   judicial proceeding or arbitration commenced pursuant to this Section 10, the Company will have   the burden of proving that Indemnitee is not entitled to indemnification or advancement of   Expenses, as the case may be and the Company may not refer to or introduce into evidence any   determination pursuant to Section 8(c) of this Agreement adverse to Indemnitee for any purpose.    If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 10,   Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section   7 until a final determination is made with respect to Indemnitee's entitlement to indemnification   (as to which all rights of appeal have been exhausted or lapsed).      (c) If a determination has been made pursuant to Section 8(c) that Indemnitee   is entitled to indemnification hereunder, the Company will be bound by that determination in any   judicial proceeding or arbitration commenced pursuant to this Section 10, absent (i) a   misstatement by Indemnitee of a material fact, or an omission by Indemnitee of a material fact   necessary to make Indemnitee’s statements not materially misleading, in connection with the   request for indemnification, or (ii) a prohibition of such indemnification under applicable law.      (d) If Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of   or an award in arbitration to enforce her rights under, or to recover damages for breach of, this   Agreement, Indemnitee will be entitled to recover from the Company, and will be indemnified by   the Company against, any and all expenses (of the types described in the definition of Expenses   in Section 21) actually and reasonably incurred by her in that judicial adjudication or arbitration,   but only if he prevails therein.  If it is determined in that judicial adjudication or arbitration that   Indemnitee is entitled to receive part of, but not all, the indemnification or advancement of   expenses sought, the Expenses incurred by Indemnitee in connection with that judicial   adjudication or arbitration will be appropriately prorated between those in respect of which this   Section 10(d) entitles Indemnitee to indemnification and those Indemnitee must bear.        





 







       8   (e) The Company shall be precluded from asserting in any judicial proceeding   or arbitration commenced pursuant to this Section 10 that the procedures and presumptions of   this Agreement are not valid, binding and enforceable and shall stipulate in any such court or   before any such arbitrator that the Company is bound by all the provisions of this Agreement.       (f) The Company shall indemnify Indemnitee to the fullest extent permitted   by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) business days   after the Company's receipt of such written request) advance such Expenses to Indemnitee, which   are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by   Indemnitee for (i) indemnification or advances of Expenses by the Company under this   Agreement or any other agreement or provision of the Company's Amended and Restated   Certificate of Incorporation or Bylaws now or hereafter in effect or (ii) recovery or advances   under any insurance policy maintained by the Company or any of its subsidiaries for the benefit   of Indemnitee, regardless of whether Indemnitee ultimately is determined to be entitled to such   indemnification, advance or insurance recovery, as the case may be.      Section 11. Non-exclusivity; Survival of Rights; Insurance; Subrogation.        (a)  The rights to indemnification and advancement of Expenses this Agreement   provides are not and will not be deemed exclusive of any other rights to which Indemnitee may at   any time be entitled under applicable law, the Company’s Amended and Restated Certificate of   Incorporation, the Company’s Bylaws, any agreement, a vote of stockholders or a resolution of   directors, or otherwise.  No amendment, alteration or termination of this Agreement or any   provision hereof will limit or restrict any right of Indemnitee hereunder in respect of any action   Indemnitee has taken or omitted in her Corporate Status prior to that amendment, alteration or   termination.  To the extent that a change in Delaware law (whether by statute or judicial   decision) permits greater indemnification by agreement than would be afforded currently under   this Agreement, it is the intent and agreement of the parties hereto that Indemnitee will enjoy by   this Agreement the greater benefits that change affords.  No right or remedy herein conferred is   intended to be exclusive of any other right or remedy, and every other right and remedy shall be   cumulative and in addition to every other right and remedy given hereunder or now or hereafter   existing at law or in equity or otherwise.  The assertion or employment of any right or remedy   hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other   right or remedy.      (b) The Company will maintain in effect during the entire period for which the   Company is obligated to indemnify Indemnitee under this Agreement (subject to appropriate cost   considerations), an insurance policy or policies providing liability insurance for directors, officers   and employees of the Company or of any other Enterprise that any such person serves at the   request of the Company.  Indemnitee will be covered by any such policy or policies in   accordance with its or their terms to the maximum extent of the coverage available for any such   person under such policy or policies.  If, at the time the Company receives notice from any   source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or   otherwise), the Company has director and officer liability insurance in effect, the Company shall     





 







       9   give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth   in the respective policies.  The Company shall thereafter take all necessary or desirable action to   cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such   Proceeding in accordance with the terms of such policies.      (c) The Company will not be liable under this Agreement to make any   payment of amounts otherwise indemnifiable (or for which advancement is provided hereunder)   hereunder if and to the extent that Indemnitee has otherwise actually received that payment or   obtained the entire benefit therefrom under any insurance policy, contract, agreement or   otherwise.      (d) If the Company makes any payment hereunder, it will be subrogated to the   extent of that payment to all the rights of recovery of Indemnitee, who will execute all papers   required and take all action necessary to secure those rights, including execution of such   documents as are necessary to enable the Company to bring suit to enforce those rights.      (e) The Company’s obligation to indemnify or advance Expenses hereunder to   Indemnitee with respect to Indemnitee’s service at the request of the Company as a director,   officer, employee, agent or fiduciary of any other Enterprise will be reduced by any amount   Indemnitee has actually received as indemnification or advancement of Expenses from that other   Enterprise.      Section 12. Duration of Agreement.  This Agreement will continue until and   terminate on the later of:  (i) 10 years after the date that Indemnitee has ceased to serve as a   director or officer of the Company or as a director, officer, trustee, partner, managing partner,   employee, agent or fiduciary of any other Enterprise that Indemnitee served on behalf of the   Company at the request of the Company; or (ii) one year after the final termination of any   Proceeding (including any rights of appeal thereto) then pending in respect of which Indemnitee   is granted rights of indemnification or advancement of Expenses hereunder and of any   proceeding commenced by Indemnitee pursuant to Section 10 relating thereto including any   rights of appeal of any Section 10 Proceeding.  This Agreement will be binding on the Company   and its successors and assigns and will inure to the benefit of Indemnitee and her spouse (if   Indemnitee resides in Texas or another community property state), heirs, executors and   administrators.      Section 13. Severability.  If any provision or provisions of this Agreement is or   are invalid, illegal or unenforceable for any reason whatsoever:  (i) the validity, legality and   enforceability of the remaining provisions hereof (including, without limitation, each portion of   any Section containing any such invalid, illegal or unenforceable provision which is not itself   invalid, illegal or unenforceable) will not in any way be affected or impaired thereby; (ii) such   provision or provisions will be deemed reformed to the extent necessary to conform to applicable   law and to give the maximum effect to the intent of the parties hereto; and (iii) to the fullest   extent possible, the provisions of this Agreement (including, without limitation, each portion of   any Section containing any such invalid, illegal or unenforceable provision which is not itself     





 







       10   invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested   thereby.      Section 14. Exception to Right of Indemnification or Advancement of   Expenses.  Notwithstanding any provision in this Agreement, the Company shall not be obligated   under this Agreement to make any indemnity in connection with any claim made against   Indemnitee:      (a) for which payment has actually been received by or on behalf of   Indemnitee under any insurance policy or other indemnity provision, except with respect to any   excess beyond the amount actually received under any insurance policy or other indemnity   provision; or      (b) for an accounting of profits made from the purchase and sale (or sale and   purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the   Exchange Act or similar provisions of state statutory law or common law;       (c) except as otherwise provided in Sections 10(d) - (f) hereof, in connection   with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any   Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its   directors, officers, employees or other indemnitees, unless (i) the Board authorized the   Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the   indemnification, in its sole discretion, pursuant to the powers vested in the Company under   applicable law;      (d) for reimbursement to the Company of any bonus or other incentive-based   or equity-based compensation or of any profits realized by Indemnitee from the sale of securities   of the Company, in each case as required under the Exchange Act; or      (e) in connection with proceedings or claims involving the enforcement of   non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure   provisions of employment, severance, consulting or similar agreements the Indemnitee may be a   party to with the Company, or any subsidiary of the Company.      Section 15. Enforcement and Binding Effect.        (a) The Company expressly confirms and agrees that it has entered into this   Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to   serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is   relying upon this Agreement in serving as a director or officer of the Company.      (b) This Agreement constitutes the entire agreement between the parties   hereto with respect to the subject matter hereof and supersedes all prior agreements and     





 







       11   understandings, oral, written and implied, between the parties hereto with respect to the subject   matter hereof.      Section 16. Settlement.  Notwithstanding any other provision of this   Agreement, the Company shall have no obligation to indemnify Indemnitee under the Agreement   for amounts paid in settlement of any action, suit or proceeding without the Company’s written   consent, which shall not be unreasonably withheld.      Section 17. Joint Liability.        (a) The Company shall not, without Indemnitee’s prior written consent, enter   into any settlement of any Proceeding in which the Company is or is alleged to be jointly liable   with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a   full and final release of all claims asserted against Indemnitee.      (b) The Company hereby agrees to fully indemnify, hold harmless and   exonerate Indemnitee from any claims for contribution which may be brought by officers,   directors or employees of the Company (other than Indemnitee) who may be jointly liable with   Indemnitee.      Section 18. Identical Counterparts.  This Agreement may be executed in one   or more counterparts, each of which will for all purposes be deemed to be an original but all of   which together will constitute one and the same agreement.  Only one such counterpart signed by   the party against whom enforceability is sought needs to be produced to evidence the existence of   this Agreement.      Section 19. Headings.  The headings of the Sections hereof are inserted for   convenience only and do not and will not be deemed to constitute part of this Agreement or to   affect the construction thereof.      Section 20. Security.  To the extent requested by Indemnitee and approved by   the Board, the Company may at any time and from time to time provide security to Indemnitee   for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust   or other collateral.      Section 21. Definitions.  For purposes of this Agreement:      “Acquiring Person” means any Person who or which, together with all its   Affiliates and Associates, is or are the Beneficial Owner of 50% or more of the shares of   Common Stock then outstanding, but does not include any Exempt Person; provided, however,   that a Person will not be or become an Acquiring Person if that Person, together with its   Affiliates and Associates, becomes the Beneficial Owner of 50% or more of the shares of   Common Stock then outstanding solely as a result of a reduction in the number of shares of   Common Stock outstanding which results from the Company’s direct or indirect repurchase of     





 







       12   Common Stock, unless and until such time as that Person or any Affiliate or Associate of that   Person purchases or otherwise becomes the Beneficial Owner of additional shares of Common   Stock constituting 1% or more of the then outstanding shares of Common Stock or any other   Person (or Persons) who is (or collectively are) the Beneficial Owner of shares of Common Stock   constituting 1% or more of the then outstanding shares of Common Stock becomes an Affiliate   or Associate of that Person, unless, in either such case, that Person, together with all its Affiliates   and Associates, is not then the Beneficial Owner of 50% or more of the shares of Common Stock   then outstanding.      “Affiliate” has the meaning Exchange Act Rule 12b-2 specifies.      “Associate” means, with reference to any Person, (i) any corporation, firm,   partnership, limited liability company, association, unincorporated organization or other entity   (other than the Company or a subsidiary of the Company) of which that Person is an officer or   general partner (or officer or general partner of a general partner) or is, directly or indirectly, the   Beneficial Owner of 10% or more of any class of its equity securities or interests, (ii) any trust or   other estate in which that Person has a substantial beneficial interest or for or of which that   Person serves as trustee or in a similar fiduciary capacity and (iii) any relative or spouse of that   Person, or any relative of that spouse, who has the same home as that Person.      A specified Person is deemed the “Beneficial Owner” of, and is deemed to   “beneficially own,” any securities:      (i) of which that Person or any of that Person’s Affiliates or   Associates, directly or indirectly, is the “beneficial owner” (as determined pursuant to Exchange   Act Rule 13d-3) or otherwise has the right to vote or dispose of, including pursuant to any   agreement, arrangement or understanding (whether or not in writing); provided, however, that a   Person will not be deemed the “Beneficial Owner” of, or to “beneficially own,” any security   under this subparagraph (i) as a result of an agreement, arrangement or understanding to vote that   security if that agreement, arrangement or understanding:  (A) arises solely from a revocable   proxy or consent given in response to a public (that is, not including a solicitation exempted by   Exchange Act Rule 14a-2(b)(2)) proxy or consent solicitation made pursuant to, and in   accordance with, the applicable provisions of the Exchange Act; and (B) is not then reportable by   that Person on Exchange Act Schedule 13D (or any comparable or successor report);      (ii) which that Person or any of  that Person’s Affiliates or Associates,   directly or indirectly, has the right or obligation to acquire (whether that right or obligation is   exercisable or effective immediately or only after the passage of time or the occurrence of an   event) pursuant to any agreement, arrangement or understanding (whether or not in writing) or on   the exercise of conversion rights, exchange rights, other rights, warrants or options, or otherwise;   provided, however, that a Person will not be deemed the “Beneficial Owner” of, or to   “beneficially own,” securities tendered pursuant to a tender or exchange offer made by that   Person or any of that Person’s Affiliates or Associates until those tendered securities are accepted   for purchase or exchange; or     





 







       13      (iii) which are beneficially owned, directly or indirectly, by (A) any   other Person (or any Affiliate or Associate thereof) with which the specified Person or any of the   specified Person’s Affiliates or Associates has any agreement, arrangement or understanding   (whether or not in writing) for the purpose of acquiring, holding, voting (except pursuant to a   revocable proxy or consent as described in the proviso to subparagraph (i) of this definition) or   disposing of any voting securities of the Company or (B) any group (as Exchange Act Rule 13d-   5(b) uses that term) of which that specified Person is a member; provided, however, that nothing   in this definition will cause a Person engaged in business as an underwriter of securities to be the   “Beneficial Owner” of, or to “beneficially own,” any securities that Person acquires through its   participation in good faith in a firm commitment underwriting (including, without limitation,   securities acquired pursuant to stabilizing transactions to facilitate a public offering in   accordance with Exchange Act Regulation M or to cover overallotments created in connection   with a public offering) until the expiration of 40 days after the date of that acquisition.  For   purposes of this definition, “voting” a security includes voting, granting a proxy, acting by   consent, making a request or demand relating to corporate action (including, without limitation,   calling a stockholder meeting) or otherwise giving an authorization (within the meaning of   Section 14(a) of the Exchange Act) in respect of that security.      “Change of Control” means the occurrence of any of the following events that   occurs after the date of this Agreement:  (i) any Person becomes an Acquiring Person; (ii) at any   time the then Continuing Directors cease to constitute a majority of the members of the Board;   (iii) a merger of the Company with or into, or a sale by the Company of its properties and assets   substantially as an entirety to, another Person occurs and, immediately after that occurrence, any   Person, other than an Exempt Person, together with all Affiliates and Associates of that Person   (other than Exempt Persons), will be the Beneficial Owner of 50% or more of the total voting   power of the then outstanding Voting Shares of the Person surviving that transaction (in the case   or a merger or consolidation) or the Person acquiring those properties and assets substantially as   an entirety unless that Person, together with all its Affiliates and Associates, was the Beneficial   Owner of 50% or more of the shares of Common Stock outstanding prior to that transaction; (iv)   the approval by the stockholders of the Company of a complete liquidation of the Company or an   agreement or series of agreements for the sale or disposition by the Company of all or   substantially all of the Company's assets; or (v) occurs any other event of a nature that would be   required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a   response to any similar item on any similar schedule or form) promulgated under the Exchange   Act (as defined below), whether or not the Company is then subject to such reporting   requirement.      “Common Stock” means (i) the common stock, par value $.001 per share, of the   Company and (ii) any other class of capital stock of the Company which is (A) except for less   voting rights, identical to the common stock clause (i) of this definition describes and   (B) convertible into that common stock on a share for share basis on the occurrence of a Change   of Control.        





 







       14   “Continuing Director” means at any time any individual who then (i) is a member   of the Board and was a member of the Board as of September 1, 2010 or whose nomination for   her first election, or that first election, to the Board following that date was recommended or   approved by a majority of the then Continuing Directors (acting separately or as a part of any   action taken by the Board or any committee thereof) and (ii) is not an Acquiring Person, an   Affiliate or Associate of an Acquiring Person or a nominee or representative of an Acquiring   Person or of any such Affiliate or Associate.      “Corporate Status” describes the status of a natural person who is or was a   director, officer, trustee, general partner, managing member, employee or agent of the Company   or of any other Enterprise, provided that person is or was serving in that capacity at the request of   the Company.  For purposes of this Agreement, “serving at the request of the Company” includes   any service by Indemnitee which imposes duties on, or involves services by, Indemnitee with   respect to any employee benefit plan or its participants or beneficiaries.      “Court of Chancery” means the Court of Chancery of the State of Delaware.      “Disinterested Director” means a director of the Company who is not and was not   a party to the Proceeding in respect of which indemnification is sought by Indemnitee hereunder.      “Exchange Act” means the Securities Exchange Act of 1934, as amended.      “Exempt Person” means: (i)(A) the Company, any subsidiary of the Company, any   employee benefit plan of the Company or of any subsidiary of the Company and (B) any Person   organized, appointed or established by the Company for or pursuant to the terms of any such plan   or for the purpose of funding any such plan or funding other employee benefits for employees of   the Company or any subsidiary of the Company; and (ii) Indemnitee, any Affiliate or Associate   of Indemnitee or any group (as Exchange Act Rule 13d-5(b) uses that term) of which Indemnitee   or any Affiliate or Associate of Indemnitee is a member.      “Expenses” include all attorneys’ fees, retainers, court costs, transcript costs, fees   of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone   charges, postage, delivery service fees, all other disbursements or expenses of the types   customarily incurred in connection with prosecuting, defending, preparing to prosecute or   defend, investigating, being or preparing to be a witness in, or otherwise participating in, a   Proceeding and all interest or finance charges attributable to any thereof.  Should any payments   by the Company under this Agreement be determined to be subject to any federal, state or local   income or excise tax, “Expenses” also will include such amounts as are necessary to place   Indemnitee in the same after-tax position (after giving effect to all applicable taxes) he would   have been in had no such tax been determined to apply to those payments.  Expenses also shall   include Expenses incurred in connection with any appeal resulting from any Proceeding,   including without limitation the premium, security for, and other costs relating to any cost bond,   supersedeas bond, or other appeal bond or its equivalent.  Expenses, however, shall not include     





 







       15   amounts paid in settlement by Indemnitee or the amount of judgments or fines against   Indemnitee.      “Independent Counsel” means a law firm, or a member of a law firm, that or who   is experienced in matters of corporation law and neither presently is, nor in the past five years has   been, retained to represent:  (i) the Company, its affiliates or Indemnitee in any matter material to   any such party; or (ii) any other party to the Proceeding giving rise to a claim for indemnification   hereunder.  Notwithstanding the foregoing, the term “Independent Counsel” does not include at   any time any person who, under the applicable standards of professional conduct then prevailing,   would have a conflict of interest in representing either the Company or Indemnitee in an action to   determine Indemnitee’s rights under this Agreement.      “Person” means any natural person, sole proprietorship, corporation, partnership   of any kind having a separate legal status, limited liability company, business trust,   unincorporated organization or association, mutual company, joint stock company, joint venture,   estate, trust, union or employee organization or governmental authority.      “Proceeding” includes any threatened, pending or completed action, suit,   arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing   or any other actual, threatened or completed proceeding, whether brought in the right of the   Company or otherwise and whether of a civil, criminal, administrative or investigative nature, in   which Indemnitee was, is or will be involved as a party or otherwise by reason of the fact that   Indemnitee is or was a director or officer of the Company, by reason of any action taken by her or   of any action on her part while acting as director or officer of the Company, or by reason of the   fact that he is or was serving at the request of the Company as a director, officer, trustee, general   partner, managing member, fiduciary, employee or agent of any other Enterprise, in each case   whether or not serving in such capacity at the time any liability or expense is incurred for which   indemnification, reimbursement, or advancement of expenses can be provided under this   Agreement.      “Voting Shares” means:  (i) in the case of any corporation, stock of that   corporation of the class or classes having general voting power under ordinary circumstances to   elect a majority of that corporation’s board of directors; and (ii) in the case of any other entity,   equity interests of the class or classes having general voting power under ordinary circumstances   equivalent to the Voting Shares of a corporation.      Section 22. Modification and Waiver.  No supplement to or modification or   amendment of this Agreement will be binding unless executed in writing by both parties hereto.    No waiver of any of the provisions of this Agreement will be deemed or will constitute a waiver   of any other provisions hereof (whether or not similar), nor will any such waiver constitute a   continuing waiver.      Section 23. Notice by Indemnitee.  Indemnitee agrees promptly to notify the   Company in writing on being served with any summons, citation, subpoena, complaint,     





 







       16   indictment, information or other document relating to any Proceeding or matter which may be   subject to indemnification or advancement of Expenses hereunder; provided, however, a failure   to give that notice will not deprive Indemnitee of her rights to indemnification and advancement   of Expenses hereunder unless the Company is actually and materially prejudiced thereby.      Section 24. Notices.  All notices, requests, demands and other communications    hereunder must be in writing and will be deemed delivered and received (i) if personally   delivered or if delivered by telex, telegram, facsimile or courier service, when actually received   by the party to whom the notice or communication is sent or (ii) if delivered by mail (whether   actually received or not), at the close of business on the third business day in the city in which the   Company’s principal executive office is located next following the day when placed in the mail,   postage prepaid, certified or registered, addressed to the appropriate party at the address of that   party set forth below (or at such other address as that party may designate by written notice to the   other party in accordance herewith):      (a) If to Indemnitee, to:  Ronnie Pruitt        4 Sheffield Ct.         Heath, TX 75032      (b) If to the Company, to:  U.S. Concrete, Inc.   331 N. Main Street   Euless, Texas  76039   Attention: William J. Sandbrook      Section 25. Contribution.  To the fullest extent applicable law permits, if the   indemnification provided for in this Agreement is held by a court of competent jurisdiction to be   unavailable to Indemnitee in whole or in part, the Company, in lieu of indemnifying Indemnitee,   will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties,   excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with   any claim relating to an indemnifiable event under this Agreement, in such proportion as is   deemed fair and reasonable in light of all the circumstances of that Proceeding in order to reflect:    (i) the relative benefits received by the Company and Indemnitee as a result of the event(s)   and/or transaction(s) giving rise to that Proceeding; and/or (ii) the relative fault of the Company   (and its directors, officers, employees and agents) and Indemnitee in connection with such   event(s) and/or transaction(s); provided, that, without limiting the generality of the foregoing,   such contribution shall not be required where such holding by the court is due to the failure of the   Indemnitee to meet the standard of conduct set forth in Sections 3 or 4 hereof or any limitation   on indemnification set forth in Sections 14 or 16 hereof.      Section 26. Governing Law; Submission to Jurisdiction.  This Agreement and   the legal relations among the parties will be governed by, and construed and enforced in   accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.    Except with respect to any arbitration Indemnitee commences pursuant to Section 10(a), the   Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or     





 







       17   proceeding arising out of or in connection with this Agreement will be brought only in the Court   of Chancery and not in any other state or federal court in the United States of America or any   court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Court of   Chancery for purposes of any action or proceeding arising out of or in connection with this   Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in   the Court of Chancery and (iv) waive, and agree not to plead or to make, any claim that any such   action or proceeding brought in the Court of Chancery has been brought in an improper or   otherwise inconvenient forum.      Section 27. Miscellaneous.  Use of one gender herein includes usage of each   other gender where appropriate.  This Agreement uses the words “herein,” “hereof” and words of   similar import to refer to this Agreement as a whole and not to any provision of this Agreement,   and the word “Section” refers to a Section of this Agreement, unless otherwise specified.      IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day   and year first above written.      ATTEST:     U.S. CONCRETE, INC.         By:  /s/ Catherine E. Dossey  By:  /s/ Mark B. Peabody    Print Name: Catherine E. Dossey  Name:  Mark B. Peabody             Title:  Vice President, Human Resources           ATTEST:     RONNIE PRUITT         By:  /s/ Catherine E. Dossey   /s/ Ronnie Pruitt    Print Name: Catherine E. Dossey