exhibit104ronniepruittce






                                                              Exhibit 10.4                      EXECUTIVE SEVERANCE AGREEMENT                                      FOR                                 RONNIE PRUITT         This Executive Severance Agreement (“Agreement”), including the attached Exhibit “A,”  which is incorporated herein by reference and made an integral part of this Agreement, is entered  into between U.S. Concrete, Inc., a Delaware corporation (the “Company”), and Ronnie Pruitt (“Executive”)  effective  as  of  April  30,  2020  (the  “Effective  Date”).  In  consideration  of  the  mutual  agreements,  provisions  and  covenants  contained  herein,  and  intending  to  be  legally  bound hereby, the Company and Executive agree as follows:   1.    Termination         1.1   Termination  by  the  Company.   The  Company  may  terminate  Executive’s  employment for any of the following reasons:               a.    Termination for Cause.  For “Cause” upon the determination by a majority  of the Company’s Board of Directors that “Cause” exists to terminate Executive’s employment.   “Cause”  means  (i)  Executive’s  gross  negligence,  willful  misconduct,  or  willful  neglect  in  the  performance  of  the  material  duties  and  services  of  Executive  to  the  Company  in  his  current  Position  (as  set  forth  on  Exhibit  “A”  or  any  Position  to  which  Executive  has  been  promoted  (provided Executive has accepted such promotion)); (ii) Executive’s final conviction of a felony  by a trial court, or Executive’s entry of a plea of nolo contendere to a felony charge; (iii) any  criminal  indictment  of  Executive  relating  to  an  event  or  occurrence  for  which  Executive  was  directly responsible which, in the business judgment of a majority of the Company’s Board of  Directors, exposes the Company to ridicule, shame or business or financial risk; or (iv) a material  breach by Executive of any material provision of this Agreement.  If the Company terminates  Executive’s employment for Cause, Executive shall be entitled only to Executive’s (a) pro rata  Monthly Base Salary (as defined in Exhibit “A”) through the date of such termination, and (b)  unused  vacation  days  for  the  year  in  which  Executive’s  termination  occurs  (the  “Accrued  Payment”).   All  future  compensation  and  benefits,  other  than  benefits  to  which  Executive  is  entitled under the terms of the Company’s compensation and/or benefit plans or applicable law,  shall  cease  as  of  the  date  of  such  termination.   In  the  case  of  a  termination  for  Cause  under  subpart (i) above, (a) all stock options previously granted by the Company to Executive that are  vested on the date of termination for Cause shall, notwithstanding any contrary provision of any  applicable  plan  or  agreement  covering  any  such  stock  option  awards,  remain  outstanding  and  continue to be exercisable for a period of 30 days following the date of termination for Cause (or,  if earlier, the expiration of their term), (b) all stock options previously granted by the Company  to Executive that are not vested on the date of termination for Cause shall terminate immediately  and (c) all restricted stock, restricted stock units and other awards that have not vested prior to  the date of termination for Cause shall be cancelled immediately.  In the case of a termination for  Cause  under  subparts  (ii),  (iii)  or  (iv)  above,  (y)  all  stock  options  previously  granted  by  the  Company to Executive (whether or not vested) shall terminate immediately and (z) all restricted  stock, restricted stock units and other awards that have not vested prior to the date of termination  for Cause shall be cancelled immediately.                                       1 





 






                                                              Exhibit 10.4               b.    Involuntary Termination.  Without Cause at the Company’s option at any  time, with or without notice and for any reason whatsoever, other than death, Disability or for  Cause, in the sole discretion of the Company (“Involuntary Termination”).  Upon an Involuntary  Termination, Executive shall receive all of the following severance benefits (provided, however,  that,  in  the  event  of  an  Involuntary  Termination  in  circumstances  in  which  the  provisions  of  Section 1.3 would be applicable, the provisions of Section 1.3 will instead apply):                     (i)   a  lump  sum  payment  in  cash  (in  accordance  with  Section  4.11)        equal  to  the  Monthly  Base  Salary  in  effect  on  the  date  of  Involuntary  Termination        multiplied by 24;                     (ii)  a  lump-sum  payment  in  cash  (in  accordance  with  Section  4.11)        equal  to  the  amount  of  (a)  Executive’s  target  bonus  for  the  bonus  year  in  which        Executive’s Involuntary Termination occurs, prorated based on the number of days in the        bonus  year  that  have  elapsed  prior  to  the  date  of  Involuntary  Termination,  and  (b)        Executive’s Accrued Payment.                     (iii) provided that Executive is eligible for and timely elects to receive        group  medical  continuation  coverage  under  COBRA,  the  Company  will  pay  100%  of        applicable medical continuation premiums for the benefit of Executive (and his covered        dependents as of the date of his termination, if any) under Executive’s then-current plan        election  for  18  months  after  termination,  with  such  coverage  to  be  provided  under  the        closest comparable plan as offered by the Company from time to time; and                     (iv)  a  pro-rata  portion  of  all  stock  options,  restricted  stock  awards,        restricted  stock  units  and  similar  equity  awards  granted  to  Executive  by  the  Company        prior  to  the  date  of  termination  (collectively,  the  “Outstanding  Equity  Awards”)  that        would  otherwise  have  vested  during  the  six-month  period  following  the  date  of        Involuntary Termination if such termination had not occurred shall immediately vest and        become exercisable on the date of termination.                     (v)   The remaining  portion of all Outstanding  Equity Awards, if  any,        which is unvested on the date of Involuntary Termination shall be forfeited and canceled        in its entirety upon the date of Involuntary Termination.                      (vi)  Each Outstanding Equity Award which is or becomes vested and        exercisable  on  the  date  of  Involuntary  Termination  shall  remain  outstanding  and        exercisable  until  the  earlier  of  (a)  the  expiration  of  the  twelve  month  period  which        commences  on  the  date  of  Involuntary  Termination  and  (b)  the  expiration  date  of  the        original term of the Outstanding Equity Award.               c.    Death/Disability.   Upon  Executive’s  (i)  death,  or  (ii)  Disability.   For  purposes  of  this  Agreement,  “Disability”  means  if  Executive  becomes  physically  or  mentally  incapacitated and is therefore unable for a period of one hundred twenty (120) consecutive days  or  one-hundred  eighty  (180)  days  during  any  one  (1)  year  period  to  perform  his  duties  with  substantially the same level of quality as immediately prior to such incapacity.  Upon termination  of employment due to such death or Disability, Executive or Executive’s heirs shall be entitled to                                      2 





 






                                                              Exhibit 10.4   receive  all severance  benefits  described  in Section 1.1.b.  as  if  Executive’s  employment  ended  due  to  an  Involuntary  Termination  by  the  Company  as  of  the  date  of  death  or  Disability.   Additionally, each Outstanding Equity Award which is (i) vested and exercisable on the date of  termination due to death or Disability shall remain outstanding and exercisable until the earlier of  (a) the expiration of the twelve month period which commences on the date of such termination  and  (b)  the  expiration  date  of  the  original  term  of  the  Outstanding  Equity  Award,  and  (ii)  unvested on the date of termination due to death or Disability shall be forfeited and canceled in  its entirety upon the date of such termination.         1.2   Termination by Executive.  Executive  may  terminate  Executive’s  employment  for any of the following reasons:               a.    Termination for Good Cause.  For “Good Cause”, which shall mean the  occurrence of any of the following events, without Executive’s consent: (i) a material diminution  in  Executive’s  then  current  Monthly  Base  Salary,  (ii)  a  material  change  in  the  location  of  Executive’s  principal  place  of  employment  by  the  Company  from  the  “Location”  set  out  on  Exhibit “A,” (iii) any material diminution in Executive’s Position from that set out on Exhibit  “A” or any title or Position to which Executive has been promoted, (iv) any material diminution  of Executive’s authority, duties, or responsibilities from those commensurate and consistent with  the character, status  and  dignity appropriate to  Executive’s  Position  or any title  or  Position  to  which Executive has been promoted (provided, however, that if at any time Executive ceases to  have such duties and responsibilities as are commensurate and consistent with his Position that  are  associated  with  a  publicly  traded  company  because  the  Company  ceases  to  have  any  securities registered under Section 12 of the Securities Exchange Act of 1934, as amended, or  ceases to be required to file reports under Section 15(d) of the Securities Exchange Act of 1934,  as amended, then Executive’s authority, duties and responsibilities will not be deemed to have  been materially diminished solely due to the cessation of such publicly-traded company duties  and responsibilities), or (v) any material breach by the Company of any material provision of this  Agreement,  which  in  the  case  of  any  of  (i)  through  (v)  above  remains  uncorrected  by  the  Company  for  30  days  following  Executive’s  written  notice  to  the  Company  of  Good  Cause.   Executive must provide such written notice to the Company of Good Cause within 60 days of the  initial existence of such specified event alleged to constitute Good Cause.  Executive shall not be  entitled  to  terminate  his  employment  for  Good  Cause  with  respect  to  specified  events  unless  Executive tenders resignation for Good Cause within 30 days of the Company’s failure to cure.  Upon  Executive’s  termination  of  employment  for  Good  Cause,  Executive  shall  receive  all  severance benefits and equity treatment described in Section 1.1.b. as if Executive’s employment  ended due to an Involuntary Termination by the Company (provided, however, that, in the event  of a termination for Good Cause in circumstances in which the provisions of Section 1.3 would  be applicable, the provisions of Section 1.3 will instead apply).               b.    Voluntary Termination.  For any other reason whatsoever, in Executive’s  sole  discretion,  upon  thirty  (30)  days  advance  written  notice  to  the  Company.   Upon  such  voluntary  termination  by  Executive  for  any  reason  other  than  Good  Cause  (a  “Voluntary  Termination”), all of Executive’s future compensation and benefits, other than benefits to which  Executive  is  entitled  under  the  terms  of  the  Company’s  compensation  and/or  benefit  plans  or  applicable  law,  shall  cease  as  of  the  date  of  Voluntary  Termination,  and  Executive  shall  be  entitled  only  to  the  Accrued  Payment.   In  the  case  of  a  Voluntary  Termination,  (i)  all  stock                                      3 





 






                                                              Exhibit 10.4   options previously granted by the Company to Executive that are vested on the date of Voluntary  Termination will remain outstanding and continue to be exercisable by Executive until 90 days  after the date of Voluntary Termination (or, if earlier, the expiration of their term), and (ii) all  Outstanding Equity Awards that have not vested prior to the date of Voluntary Termination shall  be cancelled immediately.         1.3   Termination Following Change In Control.  In the event a Change in Control (as  defined herein) occurs and within 24-months after the date of the Change in Control either (a)  Executive  terminates  his  employment  for  Good  Cause  or  (b)  the  Company  or  any  successor  (whether direct or indirect and whether by purchase, merger, consolidation, share exchange or  otherwise) to substantially all of the business, properties and/or assets of the Company makes an  Involuntary  Termination  of  Executive’s  employment,  then  in  either  case  the  Company  or  its  successor shall be required to provide Executive, and Executive shall receive, all of the following  Change in Control benefits:                     (i)   a lump sum payment in cash equal to (a) the sum of (I) Executive’s        Monthly  Base  Salary  in  effect  on  the  termination  date  multiplied  by  12,  and  (II)  the        amount of Executive’s full target bonus for the bonus year in which termination occurs,        multiplied by (b) the Change in Control Multiplier described on Exhibit “A”, payable on        the termination date (subject to Section 4.11);                     (ii)  a  lump-sum  payment  in  cash  (in  accordance  with  Section  4.11)        equal to the Accrued Payments;                     (iii) provided that Executive is eligible for and timely elects to receive        group  medical  continuation  coverage  under  COBRA,  the  Company  will  pay  100%  of        applicable medical continuation premiums for the benefit of Executive (and his covered        dependents as of the date of his termination, if any) under Executive’s then-current plan        election  for  18  months  after  termination,  with  such  coverage  to  be  provided  under  the        closest comparable plan as offered by the Company from time to time; and                     (iv)  all stock options, restricted stock awards, restricted stock units and        similar awards granted to Executive by the Company prior to the termination date shall        be treated in accordance with Section 3.2.         1.4   Offset.   In all  cases,  the compensation and benefits  payable  to Executive  under  this Agreement upon termination of Executive’s employment shall be offset by any undisputed  amounts  that  Executive  then owes  to  the Company.   Notwithstanding the foregoing,  an  offset  may  apply  to  compensation  or  benefits  under  this  Agreement  only  at  the  time  when  the  compensation or benefits otherwise would have been paid under this Agreement.         1.5   One Recovery.  In the event of termination of Executive’s employment, Executive  shall be entitled, if at all, to only one set of severance benefits or Change in Control benefits, as  applicable, provided in this Agreement.         1.6   Certain Obligations Continue.  Upon termination of Executive’s employment, all  rights and obligations of Executive and the Company or its successor under this Agreement shall  cease as of the effective date of termination except that (i) Executive’s obligations under Article                                      4 





 






                                                              Exhibit 10.4   2 and Sections 4.1 and 4.4 of this Agreement and the Company’s or its successor’s obligations  under Article 3 and Sections 1.1, 1.2, 1.3, 2.6, 4.1 and 4.4 and the Company’s or its successor’s  obligations to provide any severance benefits or Change in Control benefits to Executive shall  survive such termination in accordance with their terms, and (ii) Executive shall be entitled to  receive all compensation (including bonus) earned and benefits and reimbursements due through  the effective date of termination as provided herein.         1.7   Notice  of  Termination.   Any  termination  of  Executive’s  employment  shall  be  communicated by Notice of Termination to the non-terminating party, given in accordance with  this  Agreement.   For  purposes  of  this  Agreement,  “Notice  of  Termination”  means  a  written  notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii)  sets  forth  in  reasonable  detail  the  facts  and  circumstances  claimed  to  provide  a  basis  for  termination of Executive’s employment under the provision so indicated, and (iii) specifies the  termination date, if such date is other than the date of receipt of such notice.   2.    Confidential Information; Post-Employment Obligations         2.1   Company  Property.   All  written  materials,  records,  data,  and  other  documents  prepared by Executive during Executive’s employment by the Company are Company property.   All information, ideas, concepts, improvements, discoveries, and inventions that are conceived,  made,  developed,  or  acquired  by  Executive  individually  or  in  conjunction  with  others  during  Executive’s  employment  (whether  during  business  hours  and  whether  on  the  Company’s  premises  or  otherwise)  which  relate  to  the  Company’s  business,  products,  or  services  are  the  Company’s sole and exclusive property.  All memoranda, notes, records, files, correspondence,  drawings, manuals, models, specifications, computer programs, maps, and all other documents,  data,  or  materials  of  any  type  embodying  such  information,  ideas,  concepts,  improvements,  discoveries,  and  inventions  are  the  Company’s  property.   At  the  termination  of  Executive’s  employment  with  the  Company  for  any  reason,  Executive  shall  return  all  of  the  Company’s  documents, data, or other Company property, including all copies, to the Company.         2.2   Confidential Information; Non-Disclosure.                 a.    Executive  acknowledges  that  the  business  of  the  Company  and  its  Affiliates  is  highly  competitive  and  that  the  Company  will  provide  Executive  with  access  to  Confidential  Information  relating  to  the  business  of  the  Company  and  its  Affiliates.   “Confidential  Information”  means  and  includes  the  Company’s  and  its  Affiliates’  confidential  and/or proprietary information and/or trade secrets that have been developed or used and/or are  reasonably  planned  to  be  developed  and  that  cannot  be  obtained  readily  by  third  parties  from  outside sources.  Confidential Information includes, by way of example and without limitation,  the  following:  information  regarding  customers,  employees,  contractors,  and  the  industry  not  generally  known  to  the  public;  strategies,  methods,  books,  records,  and  documents;  technical  information  concerning  products,  equipment,  services,  and  processes,  particularly  mixing  techniques, mix designs or chemical analyses of concrete products; procurement procedures and  pricing  techniques;  the  names  of  and  other  information  concerning  customers,  investors,  and  business affiliates (such as contact name, service provided, pricing for that customer, type and  amount  of  services  used,  credit  and  financial  data,  and/or  other  information  relating  to  the  Company’s relationship with that customer); pricing strategies and price curves; positions; plans                                      5 





 






                                                              Exhibit 10.4   and strategies for expansion or acquisitions; budgets; customer lists; research; financial and sales  data; trading methodologies and terms; evaluations, opinions, and interpretations of information  and  data;  marketing  and  merchandising  techniques;  prospective  customers’  names  and  marks;  grids  and  maps;  electronic  databases;  models;  specifications;  computer  programs;  internal  business  records;  contracts  benefiting  or  obligating  the  Company  or  its  Affiliates;  bids  or  proposals submitted to any third party; technologies and methods; training methods and training  processes;  organizational  structure;  personnel  information,  including  salaries  of  personnel;  payment  amounts  or  rates  paid  to  consultants  or  other  service  providers;  and  other  such  confidential  or  proprietary  information.   Executive  acknowledges  that  this  Confidential  Information  constitutes  a  valuable,  special,  and  unique  asset  used  by  the  Company  and  its  Affiliates  in  its  businesses  to  obtain  a  competitive  advantage  over  its  competitors.   Executive  further  acknowledges  that  protection  of  such  Confidential  Information  against  unauthorized  disclosure  and  use  is  of  critical  importance  to  the  Company  in  maintaining  its  competitive  position.  Executive also will have access to, or knowledge of, Confidential Information of third  parties,  such  as  actual  and  potential  customers,  suppliers,  partners,  joint  venturers,  investors,  financing sources and the like, of the Company.  The Company also agrees to provide Executive  with access to Confidential Information and specialized training regarding the Company’s and its  Affiliates’ methodologies and business strategies, which will enable Executive to perform his job  at the Company.               b.    Executive  agrees  that  Executive  will  not,  at  any  time  during  or  after  Executive’s  employment  with  the  Company,  make  any  disclosure  of  any  Confidential  Information or specialized training of the Company, or make any use thereof without the express  advance written consent of the Company, except in carrying out his employment responsibilities  hereunder.   Executive  also  agrees  to  preserve  and  protect  the  confidentiality  of  third  party  Confidential  Information  to  the  same  extent,  and  on  the  same  basis,  as  the  Company’s  Confidential  Information.   Nothing  in  this  Section  2.2  is  intended  to  prohibit  Executive  from  complying  with  any  court  order,  lawful  subpoena  or  governmental  request  for  information,  provided  that  Executive  notifies  the  Company  promptly  upon  the  receipt  of  any  such  order,  subpoena or request and before the date of required compliance.         2.3   Non-Competition  Obligations.   The  Company  agrees  to  and  shall  provide  Executive  with  immediate  access  to  Confidential  Information.   Ancillary  to  the  rights  and  severance benefits provided to Executive, the Company’s provision of Confidential Information  and  specialized  training  to  Executive,  and  Executive’s  agreement  not  to  disclose  Confidential  Information, and in order to protect the Confidential Information described above, the Company  and Executive agree to the following non-competition provisions.  Executive agrees that during  Executive’s  employment  with  the  Company  and  for  the  “Period  of  Post-Employment  Non- Competition Obligations” set forth in Exhibit “A,” Executive will not, directly or indirectly, for  Executive  or  for  any  other  person  or  entity,  in  the  “Geographic  Region  of  Responsibility”  described on Exhibit “A” (or, if Executive’s Geographic Region of Responsibility has changed,  in any and all geographic regions in which Executive has devoted substantial attention at such  location to the material business interest of the Company and its Affiliates during the 12-month  period immediately preceding Executive’s termination of employment), engage in, assist, or have  any active interest or involvement, whether as an employee, agent, consultant, creditor, advisor,  officer,  director,  stockholder  (excluding  holdings  of  2%  or  less  of  the  stock  of  a  public  company), partner, proprietor, or any type of principal whatsoever in any person, firm, business                                      6 





 






                                                              Exhibit 10.4   or other entity that generates more than 10% of its annual revenue from the sale of any concrete- related products and services that the Company or its Affiliates offers, then has plans to offer, or  has  offered  in  the  preceding  12-month  period,  including,  but  not  limited  to,  ready-mixed  concrete,  pre-cast  concrete  or  related  building  materials  or  services  such  as  proportioned  mix  design  services,  concrete  mold  engineering  or  design  services,  rebar,  mesh,  color  additives,  curing compounds, grouts, wooden forms, or similar products or services, whether at wholesale  or retail (a “Competing Business”).  Executive understands that the foregoing restrictions may  limit Executive’s ability to engage in certain businesses in the geographic region and during the  period provided for above, but acknowledges that these restrictions are necessary to protect the  Confidential Information the Company has provided to Executive.         2.4   Non-Solicitation  of  Customers.   During  Executive’s  employment  with  the  Company and for the Period of Post-Employment Non-Competition Obligations, Executive will  not call on, service, or solicit Competing Business from clients or customers of the Company or  its affiliated entities whom that Executive, within the previous 24 months, (i) provided services  to, worked with, solicited or had or made contact with, or (ii) had access to information and files  concerning.         2.5   Non-Solicitation  of  Employees.   During  Executive’s  employment  with  the  Company, and for the Period of Post-Employment Non-Competition Obligations, Executive will  not, either directly or indirectly, call on, solicit, or induce any other employee or officer of the  Company  or  its  affiliated  entities  whom  Executive  had  contact  with,  knowledge  of,  or  association with in the course of employment with the Company to terminate his employment,  and will not assist any other person or entity in such a solicitation.         2.6   Early  Resolution  Conference/Arbitration.   The  parties  are  entering  into  this  Agreement with the express understanding that this Agreement is clear and fully enforceable as  written.  If Executive ever decides to contend that any restriction on activities imposed by Article  2 of this Agreement is no longer enforceable as written or does not apply to an activity in which  Executive intends to engage, Executive first will notify the Company’s Chief Executive Officer  and  its  General  Counsel  in  writing  and  meet  with  a  Company  representative  at  least  14  days  before  engaging  in  any  activity that  foreseeably  could fall within  the questioned  restriction  to  discuss resolution of such claims (an “Early Resolution Conference”).  Should the parties not be  able to resolve disputes at the Early Resolution Conference, the parties agree to use confidential,  binding arbitration to resolve the disputes.  The arbitration shall be conducted in Dallas, Texas,  in  accordance  with  the  then-current  employment  arbitration  rules  of  the  American  Arbitration  Association, before an arbitrator licensed to practice law in Texas.  Each party shall bear its own  costs  and  expenses  (including  reasonable  attorneys’  fees  and  expenses)  incurred  in  connection  with  any  dispute  and/or  arbitration  arising  out  of  or  relating  to  this  Agreement;  provided,  however,  that  the  parties  agree  that  the  arbitrator,  in  the  arbitrator’s  discretion,  may  award  a  prevailing  party,  a  reasonable  attorney’s  fee,  including  arbitration  expenses  and  costs.   Either  party  may  seek  a  temporary  restraining  order,  injunction,  specific  performance,  or  other  equitable relief regarding the provisions of this Section if the other party fails to comply with  obligations stated herein.  The parties’ agreement to arbitrate applies only to the matters subject  to an Early Resolution Conference.                                       7 





 






                                                              Exhibit 10.4         2.7   Warranty and Indemnification.  Executive warrants that Executive is not a party  to any restrictive agreement limiting Executive’s activities in his employment by the Company.   Executive further warrants that at the time of the signing of this Agreement, Executive knows of  no written or oral contract or of any other impediment that would inhibit or prohibit employment  with  the  Company,  and  that  Executive  will  not  knowingly  use  any  trade  secret,  confidential  information,  or  other  intellectual  property  right  of  any  other  party  in  the  performance  of  Executive’s duties hereunder.  Executive shall hold the Company harmless from any and all suits  and claims arising out of any breach of such restrictive agreement or contracts.         2.8   Modification.   Executive  and  the  Company  agree  that  if  the  scope  or  enforceability of a restrictive covenant described in this Article 2 is disputed, the arbitrator or  court  with  competent  jurisdiction  may  modify  and  enforce  the  covenant  to  the  extent  that  it  determines the covenant to be reasonable.   3.    Change in Control         3.1   Definitions.               a.    For purposes of this Agreement, a “Change in Control” shall be deemed to  have occurred on the earliest of any of the following dates:                     (i)   the  date  the  Company  merges  or  consolidates  with  any  other        person or entity, and the voting securities of the Company outstanding immediately prior        to  such  merger  or  consolidation  do  not  continue  to  represent  (either  by  remaining        outstanding  or  by  being  converted  into  voting  securities  of  the  surviving  entity)  more        than  50%  of  the  total  voting  power  of  the  voting  securities  of  the  Company  or  such        surviving entity outstanding immediately after such merger or consolidation;                     (ii)  the date the Company sells all or substantially all of its assets to        any other person or entity;                     (iii) the date the Company is dissolved;                     (iv)  the date any person or entity together with its Affiliates (as defined        herein) becomes, directly or indirectly, the Beneficial Owner (as defined herein) of voting        securities representing more than 50% of the total voting power of all then outstanding        voting securities of the Company; or                     (v)   the  date  the  individuals  who  constituted  the  non-employee        members of the Company’s Board of Directors (“Incumbent Board”) as of the Effective        Date cease for any reason to constitute at least a majority of the non-employee members        of the Board, provided that for purposes of this clause (v) any person becoming a director        of  the  Company  whose  election  or  nomination  for  election  by  the  Company’s        stockholders  was  approved  by  a  vote  of  at  least  80%  of  the  directors  comprising  the        Incumbent Board then still in office (or whose election or nomination was previously so        approved) shall be, for purposes of this clause (v), considered as though such person were        a member of the Incumbent Board;                                      8 





 






                                                              Exhibit 10.4   provided, however, that notwithstanding anything to the contrary contained in clauses (i) - (v), a  Change in Control shall not be deemed to have occurred in connection with any bankruptcy or  insolvency of the Company, or any transaction in connection therewith.               b.    As used in this Agreement, the following terms are defined as follows:                     (i)   “Affiliate”  shall  mean,  with  respect  to  any  person  or  entity,  any        person  or  entity  that,  directly  or  indirectly,  Controls,  is  Controlled  by,  or  is  under        common  Control  with  such  person  or  entity  in  question.   For  the  purposes  of  the        definition  of  Affiliate,  “Control”  (including,  with  correlative  meaning,  the  terms        “Controlled by” and “under common Control with”) as used with respect to any person or        entity, shall mean the possession, directly or indirectly, of the power to direct or cause the        direction of the management and policies of such person or entity whether through the        ownership of voting securities or by contract or otherwise;                     (ii)  “Beneficial Owner” has the meaning ascribed to it pursuant to Rule        13d-3 under the Securities Exchange Act of 1934; and                     (iii) “Parent”  means  a  corporation,  partnership,  trust,  limited  liability        company or other entity that is the ultimate Beneficial Owner of more than 50% of the        Company’s or its successor’s outstanding voting securities.         3.2   Vesting of Awards.                 a.    All stock options, restricted stock awards, restricted stock units and similar  equity awards  granted to  Executive by  the  Company  prior  to the date of  a  Change  in Control  shall, notwithstanding any contrary provision of any applicable plan or agreement covering any  such stock options, restricted stock awards, restricted stock units or similar awards, fully vest and  become exercisable in full upon the consummation of such Change in Control and shall remain  outstanding  and  in  effect  in  accordance  with  their  terms,  and  any  restrictions,  forfeiture  conditions or other conditions or criteria applicable to any such awards shall lapse immediately  upon the consummation of such Change in Control.  Notwithstanding the foregoing, any such  award that is subject to Section 409A of the Internal Revenue Code of 1986, as amended (the  “Code”)  and  the  Treasury  Regulations  promulgated  thereunder  (and  such  other  Treasury  or  Internal Revenue Service guidance) as in effect from time to time (“Section 409A”) shall only  fully vest and become exercisable in full immediately upon a “change in ownership or effective  control”  as  defined  in  Section  409A  that  also  constitutes  a  Change  in  Control  as  defined  in  Section  3.1  above.   Subject  to  Section  3.2(b)  below,  Executive  may  exercise  any  such  stock  options or other exercisable awards at any time before the expiration of their term.               b.    Notwithstanding anything in Section 3.2(a) to the contrary, in the event of  a Change in Control, the Company may, in its sole discretion, provide for the cancellation upon  the consummation of such Change in Control of all outstanding stock options, restricted stock  awards, restricted stock units and similar equity awards granted to Executive by the Company  prior  to  the  date  of  such  Change  in  Control,  whether  or  not  vested  and  exercisable,  and  a  payment in cash, property, or a combination thereof, will be made to Executive within ten (10)  days after the consummation of the Change in Control in an amount equal to (a) in the case of                                      9 





 






                                                              Exhibit 10.4   stock  options  and  similar  appreciation  awards,  the  excess,  if  any,  of  (i)  the  per  share  consideration received by a shareholder of the Company’s capital stock in connection with the  Change in Control (the “Change in Control Price”) over (ii) the exercise price or purchase price  per  share,  if  any,  of  the  underlying  award,  multiplied  by  the  number  of  unexercised  shares  subject to such equity award, and (b) in the case of restricted stock awards, restricted stock units  and similar full-value equity awards, the Change in Control Price multiplied by the number of  shares subject to such equity award.  If the Change in Control Price is less than the exercise price  or purchase price of a stock option or similar equity award, such stock option or similar equity  award will be automatically cancelled with no payment therefor.         3.3   Section  280G  Cutback.   Anything  in  this  Agreement  to  the  contrary  notwithstanding,  in  the  event  it  shall  be  determined  that  any  payment  or  distribution  by  the  Company  or  its  successor  to  or  for  the  benefit  of  Executive,  whether  paid  or  payable  or  distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”),  would  be  subject  to  the  excise  tax  imposed  by  Section  4999  of  the  Code  (such  excise  tax,  together  with  any  interest  thereon,  any  penalties,  additions  to  tax,  or  additional  amounts  with  respect  to  such  excise  tax,  and  any  interest  in  respect  of  such  penalties,  additions  to  tax  or  additional  amounts,  being  collectively  referred  herein  to  as  the  “Excise  Tax”),  then  if  the  aggregate of all Payments that would be subject to the Excise Tax, reduced by all Federal, state  and local taxes applicable thereto, including the Excise Tax is less than the amount Executive  would receive, after all such applicable taxes, if Executive received Payments equal to an amount  which is $1.00 less than three times the Executive's “base amount”, as defined in and determined  under  Section  280G  of  the  Code,  then,  such  Payments  shall  be  reduced  or  eliminated  to  the  extent necessary so that the aggregate Payments received by Executive will not be subject to the  Excise Tax.  If a reduction in the Payments is necessary, reduction shall occur in the following  order:  first,  a  reduction  of  cash  payments  not  attributable  to  equity  awards  which  vest  in  an  accelerated basis; second, a reduction in any other cash amount payable to Executive; third, the  reduction of any employee benefit valued as a “parachute payment” (as defined in Section 280G  of the Code); and fourth, the cancellation of accelerated vesting of stock awards.  If acceleration  of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be  cancelled  in  the  reverse  order  of  the  date  of  grant  of  Executive's  stock  awards.   All  determinations made under this Section 3.3 and the assumptions to be utilized in arriving at such  determinations shall be made by a registered public accounting firm designated by Executive and  reasonably acceptable to the Company (the “Accounting Firm”).  All fees and expenses of the  Accounting Firm shall be borne solely by the Company or its successor.     4.    Miscellaneous         4.1   Statements  about  the  Company  or  Executive.   Except  as  may  be  required  to  comply with a court order, lawful subpoena or governmental request for information, Executive  and the Company shall refrain, both during and after Executive’s employment, from publishing  any  oral  or  written  statements  about  the  other  that  are  disparaging,  slanderous,  libelous,  or  defamatory, or that disclose private or confidential information about their business affairs.         4.2   Notices.  Notices and all other communications hereunder shall be in writing and  shall be deemed to have been duly given when personally delivered or when mailed by United  States registered or certified mail.  Notices to the Company shall be sent to its President and its                                      10 





 






                                                              Exhibit 10.4   Secretary  at:  U.S.  Concrete,  Inc.,  331  N.  Main  Street,  Euless,  Texas  76039.   Notices  and  communications to Executive shall be sent to the address Executive most recently provided in  writing to the Company.         4.3   No Waiver.  No failure by either party at any time to give notice of any breach by  the other party of, or to require compliance with, any condition or provision of this Agreement  shall be deemed a waiver of any provisions or conditions of this Agreement.         4.4   Mediation.  If a dispute arises out of or relates to Executive’s termination, other  than a dispute  regarding Executive’s  obligations under  Article  2,  and if  the  dispute  cannot  be  settled  through  direct  discussions,  then  the  Company  and  Executive  agree  to  try  to  settle  the  dispute  in  an  amicable  manner  by  confidential  mediation  before  having  recourse  to  any  other  proceeding or forum.         4.5   Governing  Law.   This  Agreement  shall  be  deemed  to  be  made  in  the  State  of  Delaware, and the validity, interpretation, construction, and performance of this Agreement in all  respects shall be governed by the laws of the State of Delaware without regard to its principles of  conflicts  of  law.   No  provision  of  this  Agreement  or  any  related  document  will  be  construed  against or interpreted to the disadvantage of any party hereto by any court or other governmental  or judicial authority by reason of such party having or being deemed to have structured or drafted  such provision.         4.6   Consent to Jurisdiction; Waiver of Jury Trial.                 a.    Except  as  otherwise  specifically  provided  herein,  Executive  and  the  Company  each  hereby  irrevocably  submits  to  the  exclusive  jurisdiction  of  the  United  States  District Court for the District of Delaware (or, if subject matter jurisdiction in that court is not  available, in any state court located within Wilmington, Delaware) over any dispute arising out of  or relating to this Agreement.  Except as otherwise specifically provided in this Agreement, the  parties undertake not to commence any suit, action or proceeding arising out of or relating to this  Agreement in a forum other than a forum described in this Section 4.6; provided, however, that  nothing  herein  shall  preclude  the  Company  or  Executive  from  bringing  any  suit,  action  or  proceeding in any other court for the purposes of enforcing the provisions of this Section 4.6 or  enforcing any judgment obtained by the Company.               b.    The agreement of the parties to the  forum described in Section 4.6(a) is  independent of the law that may be applied in any suit, action, or proceeding and the parties agree  to such forum even if such forum may under applicable law choose to apply non-forum law.  The  parties hereby waive, to the fullest extent permitted by applicable law, any objection which they  now or hereafter have to personal jurisdiction or to the laying of venue of any such suit, action or  proceeding brought in an applicable court described in Section 4.6(a), and the parties agree that  they shall not attempt to deny or defeat such personal jurisdiction by motion or other request for  leave from any such court.  The parties agree that, to the fullest extent permitted by applicable  law,  a  final  and  non-appealable  judgment  in  any  suit,  action  or  proceeding  brought  in  any  applicable court described in Section 4.6(a) shall be conclusive and binding upon the parties and  may be enforced in any other jurisdiction.                                       11 





 






                                                              Exhibit 10.4               c.    The parties hereto irrevocably consent to the service of any and all process  in any suit, action or proceeding arising out of or relating to this Agreement by the mailing of  copies of such process to such party at such party’s address specified in Section 4.2.               d.    Each  party  hereto  hereby  waives,  to  the  fullest  extent  permitted  by  applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding  arising out of or relating to this Agreement.  Each party hereto (i) certifies that no representative,  agent or attorney of any other party has represented, expressly or otherwise, that such party would  not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver and (ii)  acknowledges that it and the other party hereto has been induced to enter into this Agreement by,  among other things, the mutual waiver and certifications in this Section 4.6(d).               e.    Each  party  shall  bear  its  own  costs  and  expenses  (including  reasonable  attorneys’ fees and expenses) incurred in connection with any dispute arising out of or relating to  this Agreement.         4.7   Assignment.  This Agreement shall be binding upon and inure to the benefit of  and  be  enforceable  by  the  parties  hereto  and  their  respective  heirs,  legal  representatives,  successors  and permitted assigns.   The  Company  may assign this  Agreement  to any affiliated  entity.  Executive’s rights and obligations under this Agreement are personal, and they shall not  be assigned or transferred without the Company’s prior written consent otherwise than by will or  the laws of descent and distribution.  The Company will require any successor (direct or indirect  and whether by purchase, merger, consolidation, share exchange or otherwise) to substantially all  of the business, properties and assets of the Company expressly to assume and agree to perform  this  Agreement  in  the  same  manner  and  to  the  same  extent  the  Company  would  have  been  required to perform it had no succession taken place.         4.8   Other Agreements/Entire Agreement.  This Agreement shall supersede any and all  existing  oral  or  written  agreements,  representations  or  warranties  between  Executive  and  the  Company  or  any  of  its  Affiliates  relating  to  the  terms  of  Executive’s  termination  by  the  Company or any of its Affiliates.  This Agreement (including Exhibit “A” attached hereto, which  is incorporated herein by reference and made an integral part of this Agreement) constitutes the  entire  agreement  of  the  parties  with  respect  to  the  subject  matters  of  this  Agreement.   Any  modification of this Agreement (including without limitation to Exhibit “A”)  will be effective  only  if  it  is  in  writing  and  signed  by  each  party.   Executive  is  also  a  party  to  that  certain  Indemnification Agreement, dated October 26, 2015, between Executive and the Company (the  “Indemnification  Agreement”).   Nothing  in  this  Agreement  is  intended  to  alter  or  amend  the  terms  or  effect  of  the  Indemnification  Agreement,  which  shall  remain  in  effect  in  accordance  with its terms, notwithstanding the execution or termination of this Agreement.         4.9   Invalidity.   Should  any  provision(s)  in  this  Agreement  be  held  by  a  court  of  competent jurisdiction to be invalid, void, or unenforceable, the  remaining provisions shall be  unaffected  and  shall  continue  in  full  force  and  effect,  and  the  invalid,  void  or  unenforceable  provision(s) shall be deemed not to be part of this Agreement.         4.10  Withholding.   All  payments  required  to  be  made  to  Executive  pursuant  to  this  Agreement shall be subject to the withholding of amounts relating to income and employment                                      12 





 






                                                              Exhibit 10.4   taxes  and  other  customary  employee  deductions  in  conformity  with  the  Company’s  payroll  policies in effect from time to time.         4.11  Time of Payments and Section 409A.                 a.    All amounts payable under Sections 1.1.b, 1.2.a and 1.3 of this Agreement  shall be paid only after Executive’s timely execution, without revocation, of a waiver and general  release  of claims  in  favor of the Company,  its  subsidiaries  and  Affiliates,  and their  respective  predecessors  and  successors,  and  all  of  the  respective  current  or  former  directors,  officers,  employees, shareholders, partners, members, agents or representatives of any of the foregoing, in  a form satisfactory to the Company.  The Company shall provide the aforementioned release to  Executive  within  10  days  following  the  date  of  Executive’s  termination  of  employment.   Executive’s execution of the release shall be considered timely only if the release is executed and  returned to the Company by the deadline specified by the Company, which deadline shall not be  earlier than the 21st day following the date the release is provided to Executive nor later than the  55th day following the date of termination of Executive’s employment.  If Executive has timely  returned the executed release and the revocation period has expired, the amounts payable under  Sections 1.1.b, 1.2.a and 1.3 of this Agreement, to the extent payable in a lump sum, shall be  paid on the 65th day following the date of Executive’s termination of employment.               b.    The  parties  intend  that  any  amounts  payable  hereunder  that  could  constitute “deferred compensation” within the meaning of Section 409A will be compliant with  Section  409A,  and,  accordingly,  to  the  maximum  extent  permitted,  this  Agreement  shall  be  interpreted to be in compliance therewith.  With respect to the time of payments of any amounts  under  this  Agreement  that are  “deferred  compensation”  subject  to Section 409A,  references  in  this Agreement to “termination of employment” (and substantially similar phrases) shall mean  “separation from service” within the meaning of Section 409A.  For purposes of Section 409A,  each  of  the  payments  that  may  be  made  under  this  Agreement are  designated  as  separate  payments for purposes of Treasury Regulations Section 1.409A-1(b)(4)(i)(F), 1.409A-1(b)(9)(iii)  and 1.409A-1(b)(9)(v)(B).                 c.    Notwithstanding anything in this Agreement to the contrary, if Executive  is  deemed  to  be  a  “specified  employee”  within  the  meaning  of  Section  409A(a)(2)(B)(i)  and  Executive  is  not  “disabled”  within  the  meaning  of  Section  409A(a)(2)(C),  no  payments  hereunder  to  be  made  in  connection  with  a  “separation  from  service”  that  are  “deferred  compensation” subject to Section 409A shall be made to Executive prior to the date that is six (6)  months after the date of  Executive’s “separation from service” (as defined in Section 409A) or,  if  earlier,  Executive’s  date  of  death.   This  Section  4.11  shall  be  applied  by  accumulating  all  payments that otherwise would have been paid within six months of Executive’s termination and  paying  such  accumulated  amounts  in  a  single  lump  sum  on  the  earliest  date  permitted  under  Section  409A  that  is  also  a  business  day.   Executive  shall  be  a  “specified  employee”  for  the  twelve-month period beginning on April 1 of a year if Executive is a “key employee” as defined  in  Section  416(i)  of  the  Code  (without  regard to  Section  416(i)(5)) as  of  December 31 of the  preceding year or using such dates as designated by the Company in accordance with Section  409A  and  in  a  manner  that  is  consistent  with  respect  to  all  of  the  Company’s  nonqualified  deferred  compensation  plans,  if  any.   For  purposes  of  determining  the  identity  of  specified                                       13 





 






                                                              Exhibit 10.4   employees, the Company may establish procedures as it deems appropriate in accordance with  Section 409A.               d.    For  the  avoidance  of  doubt,  it  is  intended  that  any  indemnification  payment  or  expense  reimbursement  made  hereunder  shall  be  exempt  from  Section 409A.     Notwithstanding the foregoing, if any indemnification payment or expense reimbursement made  hereunder  shall  be  determined  to  be  “deferred  compensation”  within  the  meaning  of  Section 409A,  then  (i) the  amount  of  the  indemnification  payment  or  expense  reimbursement  during one taxable year shall not affect the amount of the indemnification payments or expense  reimbursement  during  any  other  taxable  year,  (ii) the  indemnification  payments  or  expense  reimbursement shall be made on or before the last day of Executive’s taxable year following the  year  in  which  the  expense  was  incurred,  and  (iii) the  right  to  indemnification  payments  or  expense  reimbursement  hereunder  shall  not  be  subject  to  liquidation  or  exchange  for  another  benefit.         4.12  Headings.  The Article and Section headings contained in this Agreement are for  reference  purposes  only  and  shall  not  affect  in  any  way  the  meaning  or  interpretation  of  this  Agreement.         4.13  Counterparts.  This Agreement may be executed in any number of counterparts  and  by  the  parties  hereto  in  separate  counterparts,  each  of  which  when  so  executed  shall  be  deemed  to  be  an  original  and  all  of  which  taken  together  shall  constitute  one  and  the  same  agreement.         IN WITNESS WHEREOF, the Company and Executive have executed this Agreement in  multiple originals to be effective on the Effective Date.    Ronnie Pruitt  (“Executive”)        U.S. Concrete, Inc. (the “Company”)   By:  /s/ Ronnie Pruitt              By:  /s/ Mark B. Peabody  Printed Name: Ronnie Pruitt         Printed Name: Mark B. Peabody                                          Title: Vice President, HR  Date:  April 30, 2020               Date:  April 30, 2020                                       14 





 






                              EXHIBIT “A”             TO EXECUTIVE SEVERANCE AGREEMENT BETWEEN                    U.S. CONCRETE AND RONNIE PRUITT   Position:                         President and Chief Executive Officer   Location:                         Euless, Texas   Geographic Region of Responsibility:  During  Executive’s  employment  with  the                                    Company, within 75 miles of any plant or other                                    operating  facility  in  which  the  Company  is                                    then engaged in business.  Upon termination of                                    Executive’s  employment  with  the  Company,                                    within 75 miles of any plant or other operating                                    facility in which the Company was engaged in                                    business  on  the  date  immediately  prior  to                                    Executive’s termination.   Change in Control Multiplier:     2.5   Period of Post-Employment         If Executive’s employment is terminated under  Non-Competition Obligations:      Section  1.1  or  1.2,  the  Period  of  Post-                                   Employment  Non-Competition  Obligations                                    shall be one year from the date of termination.                                     If Executive’s employment is terminated under                                    Section  1.3,  the  Period  of  Post-Employment                                    Non-Competition Obligations shall commence                                    on  the  date  of  termination  and  continue  for                                    period  of  time  equal  to  (a)  12  months                                    multiplied  by  (b)  the  Change  in  Control                                    Multiplier.   Annual Base Salary:               $775,000 or such rate as may be determined by                                    the Company from time to time  Annual Paid Vacation:             Four weeks                                       15