EMPLOYMENT AGREEMENT BETWEEN Primoris Corporation AND John P. Schauerman February 18, 2008
Exhibit
10.16
THIS
EMPLOYMENT AGREEMENT is made and entered into as of February 18, 2006, and
effective as of the Closing Date (as hereinafter defined), by and among Primoris
Corporation, a Nevada corporation (the “Employer”),
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the “Employee”).
WHEREAS,
pursuant to that certain Agreement And Plan of Merger By And Among Rhapsody
Acquisition Corp., Primoris Corporation and the Shareholders of Primoris
Corporation dated on or about February 19, 2008 (“the Merger Agreement”), a
closing date for the consummation of a prospective merger is defined therein
(“the Closing Date”);
WHEREAS,
the Employer desires to employ the Employee, and the Employee desires to accept
such employment, on the terms and subject to the conditions hereinafter set
forth;
NOW,
THEREFORE, in consideration of the covenants contained herein and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows.
| 1. |
Definitions.
|
Generally,
defined terms used in this Agreement are defined in the first instance in which
they appear herein. In addition, the following terms and phrases shall have
the
following meanings:
“Board”
shall
mean the board of directors of Employer.
“Business
Day”
shall
mean any day that is not a Saturday, Sunday, or a day on which banking
institutions in California are not required to be open.
“Cause”
shall
mean the Employee’s:
(i) failure
to devote substantially all his working time to the business of Employer and
its
Affiliates and Subsidiaries;
(ii) willful
disregard of his duties, or his intentional failure to act where the taking
of
such action would be in the ordinary course of the Employee’s duties
hereunder;
(iii)
gross
negligence or willful misconduct in the performance of his duties
hereunder;
(iv)
commission
of any act of fraud, theft or financial dishonesty, or any felony or criminal
act involving moral turpitude; or
(v)
unlawful
use (including being under the influence) of alcohol or drugs or possession
of
illegal drugs while on the premises of the Employer or any of its Affiliates
or
while performing duties and responsibilities to the Employer and its
Affiliates.
“Confidential
Information”
shall
mean all proprietary and other information relating to the business and
operations of Employer, which has not been specifically designated for release
to the public by an authorized representative of Employer, including, but not
limited to the following: (i) information, observations, procedures and data
concerning the business or affairs of Employer; (ii) products or services;
(iii)
costs and pricing structures; (iv) analyses; (v) drawings, photographs and
reports; (vi) computer software, including operating systems, applications
and
program listings; (vii) flow charts, manuals and documentation; (viii) data
bases; (ix) accounting and business methods; (x) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice; (xi) customers, vendors, suppliers and
customer, vendor and supplier lists; (xii) other copyrightable works; (xiii)
all
production methods, processes, technology and trade secrets and (xiv) all
similar and related information in whatever form. Confidential Information
will
not include any information that has been published in a form generally
available to the public prior to the date the Employee proposes to disclose
or
use such information. Confidential Information will not be deemed to have been
published merely because individual portions of the information have been
separately published, but only if all material features comprising such
information have been published in combination.
“Disability”
shall
mean the Employee’s inability, due to physical or mental illness or disability,
to perform the essential functions of his employment with the Employer, even
with reasonable accommodation that does not impose an undue hardship on the
Employer, for more than sixty (60) consecutive days, or for any ninety (90)
days
within any one year period, unless a longer period is required by federal or
state law, in which case such longer period will be applicable. The Employer
reserves the right, in good faith, to make the determination of Disability
under
this Agreement based on information supplied by the Employee and/or his medical
personnel, as well as information from medical personnel selected by the
Employer or its insurers.
“Employer”
shall
mean Primoris Corporation and any of its Subsidiaries.
“Person”
shall
be construed broadly and shall include, without limitation, an individual,
a
partnership, an investment fund, a limited liability company, a corporation,
an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
“Subsidiary”
or
“Subsidiaries”
shall
have the meaning as defined in the Merger Agreement.
“Termination
Date”
shall
mean the effective date of the termination of the Employee’s employment
hereunder, which (i) in the case of termination by resignation, shall mean
the
date that is ninety (90) days following the date of the Employee’s written
notice to the Employer of his resignation; provided, however, that the Employer
may accelerate the Termination Date; (ii) in the case of termination by reason
of death shall mean the date of death; (iii) in the case of termination by
reason of Disability, shall mean the date specified in the notice of such
termination delivered to the Employee by the Employer; (iv) in the case of
a
Termination for Cause or a Termination without Cause, shall mean the date
specified in the written notice of such termination delivered to the Employee
by
the Employer; (iv) in the case of termination by mutual agreement shall mean
the
date mutually agreed to by the parties hereto and (v) in the case of nonrenewal,
shall mean the expiration of the Employment Period.
-2-
| 2. |
Employment.
|
a.
Initial
Term.
The
Employer shall employ the Employee, and the Employee accepts employment with
the
Employer, upon the terms and conditions set forth in this Agreement. The initial
term of this Agreement (the “Initial
Term”)
shall
be for a period of five (5) years commencing on the date hereof, unless
terminated earlier pursuant to Article 5 hereof; provided, however, that
Employee’s obligations in Article 11 and Article 12 hereof shall continue in
effect after such termination.
b.
Additional
Terms.
This
Agreement may be extended beyond the Initial Term upon the mutual consent and
agreement of Employee and Employer. The Initial Term and additional terms,
if
any, shall collectively be referred to herein as the “Employment
Period”.
| 3. |
Position
and Duties.
|
During
the Employment Period, the Employee shall serve as the Chief Financial Officer,
reporting to the Chief Executive Officer of Employer, and shall have the usual
and customary duties, responsibilities and authority of such position. During
the Employment Period the Employee shall also serve as a member of the Board
of
Directors of Employer. In addition, during the Employment Period, if elected
or
appointed thereto, shall serve as an officer and/or member of the board of
any
Subsidiary of Employer as reasonably requested by the Employer and its
Subsidiaries, in each case, without additional compensation hereunder. The
Employee hereby accepts such employment and positions and agrees to diligently
and conscientiously devote his full and exclusive business time, attention,
and
best efforts in discharging and fulfilling his duties and responsibilities
hereunder. The Employee shall comply with the Employer’s policies and procedures
and the direction and instruction of the Board and the Employee shall not engage
in any business activity which, in the reasonable judgment of the Board,
conflicts with the duties of the Employee hereunder, whether or not such
activity is pursued for gain, profit or other pecuniary advantage.
| 4. |
Compensation
|
(a) Salary.
During
the Employment Period, the Employer shall pay the Employee base salary (the
“Base
Salary”)
at the
rate of Two Hundred Seventy Five Thousand Dollars ($275,000) per annum, payable
in equal installments twice monthly on Employer’s regular payroll dates, less
applicable deductions and withholdings.
(b) Performance
Bonus.
In
addition to the Base Salary, during the Employment Period the Employee shall
be
eligible to receive a cash bonus (the “Bonus”)
with
respect to each calendar year as of the last day of which the Employee is
employed by the Employer. The amount of the Bonus, if any, payable in respect
of
any calendar year will be determined at the sole discretion of Employer by
the
Board or compensation committee of the Board (the “Compensation
Committee”).
The
Bonus, if any, payable with respect to a calendar year shall be paid within
thirty (30) days following the rendering of Employer’s audited financial
statements for the relevant calendar year.
-3-
(c) Benefits
and Perquisites.
In
addition to the Base Salary, Employee shall be entitled to all other benefits
of
employment provided to other employees of Employer; provided, however, that
during the term of this Agreement Employee shall be entitled to three (3) weeks
of vacation per annum. Additional benefits and perquisites will be provided
subject to Employer’s policies and practices in effect and then in place at the
Closing Date, and the terms of applicable benefit plans and arrangements as
in
effect from time to time.
(d) Reimbursements.
The
Employer shall reimburse the Employee for all reasonable and necessary
business-related expenses incurred by him in the course of performing his duties
under this Agreement which are consistent with Employer’s policies and practices
in effect and then in place at the Closing Date, including travel, entertainment
and other business expenses, subject to the Employer’s requirements with respect
to reporting and documentation of such expenses.
(e) Deductions
and Withholding.
The
Employer shall deduct from any payments to be made by it to or on behalf of
the
Employee under this Agreement any amounts required to be withheld in respect
of
any federal, state or local income or other taxes.
(f) Annual
Review of Base Salary.
The
Board (or the Compensation Committee) shall undertake a review of the Base
Salary not less frequently than annually during the Employment Period and may
increase, but not decrease, the rate of Base Salary from the rate then in
effect.
(g) Use
of Employer Aircraft.
In
addition to all business related uses of any aircraft owned or leased by
Employer during the Employment Period, Employee shall be entitled to use of
said
aircraft up to twenty (20) hours during each calendar year hereunder.
| 5. |
Termination
of Employment.
|
The
Employee’s employment under this Agreement shall be terminated upon the earliest
to occur of the following events:
(a) Termination
for Cause.
The
Employer may in its sole discretion terminate this Agreement and the Employee’s
employment hereunder for Cause at any time and with or without advance notice
to
the Employee.
(b) Termination
without Cause.
The
Employer may terminate this Agreement and the Employee’s employment hereunder
without Cause at any time, with or without notice, for any reason or no reason
(and no reason need be given).
(c) Mutual
Agreement.
This
Agreement and the Employee’s employment hereunder may be terminated by the
mutual written agreement of the Employer and the Employee.
-4-
(d) Termination
by Death or Disability.
This
Agreement and the Employee’s employment hereunder shall automatically terminate
upon the Employee’s death or Disability.
(e) Resignation.
The
Employee may terminate this Agreement and his employment hereunder upon ninety
(90) days advance written notice to the Employer.
(f) Nonrenewal.
In the
event either party does not elect to renew the term of this Agreement, this
Agreement and the Employee’s employment hereunder shall automatically terminate
as of the expiration of the current term in effect.
| 6. |
Compensation
upon Termination
|
(a) General.
In the
event of the Employee’s termination of employment for any reason, the Employee
or his estate or beneficiaries shall have the right to receive the
following:
(i) the
unpaid portion of the Base Salary and paid time off accrued and payable through
the Termination Date;
(ii)
reimbursement
for any expenses for which the Employee shall not have been previously
reimbursed, as provided in Section 4(d); and
(iii)
continuation
of health insurance coverage rights, if any, as required under applicable
law.
(b) Termination
for Cause, Resignation, Mutual Agreement or Nonrenewal.
In the
event of the Employee’s termination of employment by reason of (i) Termination
for Cause, (ii) Resignation, (iii) Mutual Agreement or (iv) Nonrenewal, the
Employer shall have no current or further obligations (including Base Salary)
to
the Employee under this Agreement other than as set forth in Section 6(a).
(c) Termination
without Cause or by Death or Disability.
Subject
to Section 6(d), in the event of the Employee’s termination of employment
hereunder by reason of (i) Termination without Cause or (ii) death or
Disability, the Employee shall be entitled to the following (the “Severance
Benefits”):
(i) a
lump
sum equal to one-half of the annual Base Salary in effect upon the Termination
Date, payable within fifteen (15) days following the Termination
Date;
(ii)
a
pro
rata amount of a Bonus, if any, which would have been payable to the Employee
for the calendar year in which the Termination Date occurs, determined after
the
end of the calendar year in which such
Termination
Date occurs and equal to the amount which would have been payable to the
Employee if his employment had not been terminated during such calendar year
multiplied by the fraction, the numerator of which is the number of whole months
the Employee was employed by the Employer during such calendar year and the
denominator of which is 12. Any pro rata bonus payable under this Section
6(c)(ii) shall be paid in a lump sum at the time bonuses for such calendar
year
are otherwise payable to senior executives of the Employer; and
-5-
(iii)
in
the
event that the Employee elects COBRA benefits, the Employer shall pay the
Employee’s share of the premium for such COBRA benefits until the earlier of (i)
one year after the Termination Date; or (ii) the date that Employee obtains
comparable health benefits through new employment.
(d) General
Release.
Notwithstanding any provision to the contrary in this Agreement, the foregoing
Severance Benefits under Section 6(c) shall not apply and the Employer shall
have no obligations to pay or provide any Severance Benefits (other than upon
the Employee’s termination of employment by reason of death), unless the
Employee signs, delivers and does not rescind or revoke a general release,
substantially in the form attached hereto as Exhibit A, of all known and unknown
claims of the Employee (and his affiliates, successors, heirs and assigns and
the like) against Employer and the Board.
(e) The
rights of the Employee set forth in this Section 6 are intended to be the
Employee’s exclusive remedy for termination and, to the greatest extent
permitted by applicable law, the Employee waives all other remedies.
| 7. |
Insurance.
|
Employer
may, for its own benefit, maintain “key man” life and disability insurance
policies covering the Employee. The Employee will cooperate with Employer and
provide such information or other assistance as they may reasonably request
in
connection with obtaining and maintaining such policies.
| 8. |
Exclusive
Services.
|
During
the term of this Agreement, the Employee will not accept or perform any work,
consulting, or other services for any other business entity or for remuneration
of any kind, without written approval by the Board.
| 9. |
The
Employee’s Termination Obligations.
|
The
Employee hereby acknowledges and agrees that all personal property and equipment
furnished to or prepared by the Employee in the course of or incident to his
employment hereunder belongs to Employer and shall be promptly returned to
Employer upon termination of the Employee’s employment. The term “personal
property”
includes, without limitation, all office equipment, laptop computers, cell
phones, books, manuals, records, reports, notes, contracts, requests for
proposals, bids, lists, blueprints, and other documents, or materials, or copies
thereof (including computer files), and all other proprietary and
non-proprietary information relating to the business of Employer. Following
termination of his employment hereunder, the Employee will not retain any
written or other tangible material containing any proprietary or non-proprietary
information of Employer.
| 10. |
Acknowledgment
of Protectable Interests.
|
The
Employee acknowledges and agrees that his employment with Employer involves
building and maintaining business relationships and good will on behalf of
the
Employer with customers, and other professional contractors, subcontractors,
employees and staff, and various providers and users of services related to
Employer’s business; that he is entrusted with proprietary, strategic and other
confidential information which is of special value to Employer; and that the
foregoing matters are significant interests which the Employer is entitled
to
protect.
-6-
| 11. |
Confidential
Information.
|
The
Employee agrees that all Confidential Information that comes or has come into
his possession by reason of his employment hereunder is the property of the
Employer and shall not be used except in the course of employment by Employer
and for Employer’s exclusive benefit. Further, the Employee shall not, during
his employment or thereafter, disclose or acknowledge the content of any
Confidential Information to any person who is not an employee of Employer
authorized to possess such Confidential Information. Upon termination of
employment, the Employee shall deliver to Employer all documents, writings,
electronic storage devices, and other tangible things containing any
Confidential Information and the Employee shall not make or retain copies,
excerpts, or notes of such information.
| 12. |
Nonsolicitation/Nondisparagement.
|
In
the
event of the termination of this Agreement for any reason, the Employee shall
not, for a period of two (2) years thereafter, directly or indirectly:
(a) solicit,
induce or encourage any employee of Employer to terminate his or her employment
with Employer;
(b) make
any
disparaging public statement concerning Employer; or
(c) use
Employer’s Confidential Information to induce, attempt to induce or knowingly
encourage any Customer (as defined below) of Employer to divert any business
or
income from Employer, or to stop or alter the manner in which they are then
doing business with Employer. The term “Customer”
with
respect to Employer shall mean any individual or business firm that is, or
within the prior twenty-four (24) months was, a customer or client of Employer,
or whose business was actively solicited by Employer at any time, regardless
of
whether such customer was generated, in whole or in part, by the Employee’s
efforts.
| 13. |
Damages
For Improper Termination With Cause.
|
In
the
event that the Employer terminates this Agreement and the Employee’s employment
hereunder for “Cause,” but it subsequently is determined by an arbitrator or a
court of competent jurisdiction, as the case may be, that the Employer did
not
have Cause for the termination, then for purposes of this Agreement, the
Employer’s decision to terminate shall be deemed to have been a termination
without Cause, and the Employer shall be obligated to pay the Severance Benefits
specified under Section 6(c), and only that amount.
-7-
| 14. |
Arbitration.
|
Any
controversy or dispute arising out of, based upon, or relating to this
Agreement, its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, or
arising out of, based upon, or relating in any way to the Employee’s employment
or association with Employer, or termination of the same, including, without
limiting the generality of the foregoing, any questions regarding whether a
particular dispute is arbitrable, and any alleged violation of statute, common
law or public policy, including, but not limited to, any state or federal
statutory claims, shall be submitted to final and binding arbitration in Orange
County, California, in accordance with the JAMS Employment Arbitration Rules
and
Procedures, before a single neutral arbitrator selected from the JAMS panel,
or
if JAMS is no longer able to supply the arbitrator, such arbitrator shall be
selected from the American Arbitration Association, in accordance with its
National Rules for the Resolution of Employment Disputes (the arbitrator
selected hereunder, the “Arbitrator”).
Provisional injunctive relief may, but need not, be sought by either party
to
this Agreement in a court of law while arbitration proceedings are pending,
pursuant to California Code of Civil Procedure section 1281.8, and any
provisional injunctive relief granted by such court shall remain effective
until
the matter is finally determined by the Arbitrator. Final resolution of any
dispute through arbitration may include any remedy or relief which the
Arbitrator deems just and equitable, including any and all remedies provided
by
applicable state or federal statutes. At the conclusion of the arbitration,
the
Arbitrator shall issue a written decision that sets forth the essential findings
and conclusions upon which the Arbitrator’s award or decision is based. Any
award or relief granted by the Arbitrator hereunder shall be final and binding
on the parties hereto and may be enforced by any court of competent
jurisdiction. The parties acknowledge and agree that they are hereby waiving
any
rights to trial by jury in any action, proceeding or counterclaim brought by
either of the parties against the other in connection with any matter whatsoever
arising out of or in any way connected with this Agreement or the provision
of
services under this Agreement. The Employer will pay the arbitrator’s fees and
arbitration expenses and any other costs associated with the arbitration or
arbitration hearing that are unique to arbitration. Subject to the provisions
of
Section 25, the parties shall each pay their own deposition, witness, expert
and
attorneys’ fees and other expenses as and to the same extent as if the matter
were being heard in court.
| 15. |
Representations/Warranties.
|
The
Employee represents and warrants that he is under no contractual or other
obligation that would prevent him from accepting the Employer’s offer of
employment as set forth herein.
| 16. |
Entire
Agreement.
|
This
Agreement is intended by the parties to be the final expression of their
agreement with respect to the employment of the Employee by Employer and may
not
be contradicted by evidence of any prior or contemporaneous agreement
(including, without limitation any term sheet or similar agreement entered
into
between Employer and the Employee). The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms
and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding to vary the terms of this Agreement.
| 17. |
No
Representations.
|
No
person
or entity has made or has the authority to make any representations or promises
on behalf of any of the parties which are inconsistent with the representations
or promises contained in this Agreement, and this Agreement has not been
executed in reliance on any representations or promises not set forth herein.
Specifically, no promises, warranties or representations have been made by
anyone on any topic or subject matter related to the Employee’s relationship
with the Employer or any of their executives or employees, including but not
limited to any promises, warranties or representations regarding future
employment, compensation, benefits, any entitlement to equity interests in
Employer or regarding the termination of the Employee’s employment. In this
regard, the Employee agrees that no promises, warranties or representations
shall be deemed to be made in the future unless they are set forth in writing
and signed by an authorized representative of the Employer.
-8-
| 18. |
Amendments.
|
This
Agreement may be modified only by agreement of the parties by a written
instrument executed by the parties that is designated as an amendment to this
Agreement.
| 19. |
Severability
and Non-Waiver/Survival.
|
Any
provision of this Agreement (or portion thereof) which is deemed invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction
and
subject to this Section 19, be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting in any way the remaining
provisions thereof in such jurisdiction or rendering such provision or any
other
provision of this Agreement invalid, illegal, or unenforceable in any other
jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable
because its scope is considered excessive, such covenant shall be modified
so
that the scope of the covenant is reduced only to the minimum extent necessary
to render the modified covenant valid, legal and enforceable. No waiver of
any
provision or violation of this Agreement by the Employer shall be implied by
the
Employer’s forbearance or failure to take action. The expiration or termination
of the Employment Period and this Agreement shall not impair the rights or
obligations of any party hereto which shall have accrued hereunder prior to
such
expiration or termination.
| 20. |
Successor/Assigns.
|
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, representatives, executors, administrators, successors,
and assigns, provided, however, that the Employee may not assign any or all
of
his rights or duties hereunder except following the prior written consent of
the
Employer. The Employee shall be entitled, to the extent permitted under
applicable law, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit hereunder following the Employee’s death by giving
written notice thereof. In the event of the Employee’s death or a judicial
determination of his incompetence, references in this Agreement to the Employee
shall be deemed, where appropriate, to refer to his beneficiary, estate or
other
legal representative.
| 21. |
Voluntary
and Knowledgeable Act.
|
The
Employee represents and warrants that the Employee has read and understands
each
and every provision of this Agreement and has freely and voluntarily entered
into this Agreement.
-9-
| 22. |
Choice
of Law.
|
This
Agreement shall be governed as to its validity and effect by the laws of the
state of California without regard to principles of conflict of laws.
| 23. |
Counterparts.
|
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original, but both of which together shall constitute one and the same
instrument.
| 24. |
Notices.
|
All
notices and other communications necessary or contemplated under this Agreement
shall be in writing and shall be delivered in the manner specified herein or,
in
the absence of such specification, shall be deemed delivered when delivered
in
person or sent by first-class mail (certified or registered mail, return receipt
requested, postage prepaid), facsimile or overnight air courier guaranteeing
next day delivery, addressed as follows:
|
(a)
|
if to the Employee, to him at his most recent address in Employer’s records, | |
|
(b)
|
if to the Employer, to: |
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Primoris
Corporation
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▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
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▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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with
a copy to:
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▇▇▇▇▇
& ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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and:
or
to
such other address as the recipient party to whom notice is to be given may
have
furnished to the other party in writing in accordance herewith.
| 25. |
Attorneys’
Fees.
|
In
the
event that any dispute between the parties should result in litigation or
arbitration, the prevailing party in such dispute shall be entitled to recover
from the other party all reasonable fees, costs and expenses of enforcing any
right of the prevailing party, including without limitation, reasonable
attorneys’ fees and expenses, all of which shall be deemed to have accrued upon
the commencement of such action and shall be paid whether or not such action
is
prosecuted to judgment. Any judgment or order entered in such action shall
contain a specific provision providing for the recovery of attorneys’ fees and
costs incurred in enforcing such judgment and an award of prejudgment interest
from the date of the breach at the maximum rate of interest allowed by law.
For
the purposes of this Section 25: (a) attorneys’ fees shall include, without
limitation, fees incurred in the following: (i) postjudgment motions; (ii)
contempt proceedings; (iii) garnishment, levy, and debtor and third party
examinations; (iv) discovery and (v) bankruptcy litigation and (b) “prevailing
party”
shall
mean the party who is determined in the proceeding to have prevailed or who
prevails by dismissal, default or otherwise.
-10-
| 26. |
Descriptive
Headings; Nouns and Pronouns.
|
Descriptive
headings are for convenience only and shall not control or affect the meaning
or
construction of any provision of this Agreement. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice-versa.
| 27. |
Non-Qualified
Deferred Compensation.
|
The
parties acknowledge and agree that, to the extent applicable, this Agreement
shall be interpreted in accordance with Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”)
and
Department of Treasury regulations and other interpretive guidance issued
thereunder, including without limitation any such regulations or other guidance
that may be issued after the date hereof. Notwithstanding any provision of
this
Agreement to the contrary, in the event that the Employer determines that any
amounts payable hereunder will be immediately taxable to the Employee under
Section 409A of the Code and related Department of Treasury guidance, the
Employer may (a) adopt such amendments to this Agreement and appropriate
policies and procedures, including amendments and policies with retroactive
effect, that the Employer determines necessary or appropriate to preserve the
intended tax treatment of the benefits provided by this Agreement and/or (b)
take such other actions as the Employer determines necessary or appropriate
to
comply with the requirements of Section 409A of the Code and related Department
of Treasury guidance, including such Department of Treasury guidance and other
interpretive materials as may be issued after the date hereof.
| 28. |
Waiver
of Jury Trial.
|
EACH
OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as
of the date first written above.
|
Primoris
Corporation
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|
By:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
||
|
Title:
|
Secretary |
||
|
|
|||
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
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|||
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ,
individually
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-12-
EXHIBIT
A
[Form
of Release]
1. [Severance
Benefits]
2. Release
of Claims.
Except
as explicitly provided below, you agree that the foregoing consideration
represents settlement in full of all outstanding obligations owed to you by
the
Company, and its respective officers, directors, partners, members, agents
and
employees, including, without limitation, any and all obligations under the
Employment Agreement, and is satisfactory consideration for the waiver and
release of all claims set forth herein. On behalf of yourself, and your
respective heirs, family members, executors and assigns, you hereby fully and
forever release the Company and its past, present and future officers, agents,
directors, employees, investors, stockholders, partners, members,
administrators, affiliates, divisions, subsidiaries, parents, predecessor and
successor corporations and assigns (the “Releasees”),
from,
and agree not to ▇▇▇ concerning, or in any manner to institute, prosecute or
pursue, or cause to be instituted, prosecuted, or pursued, any claim, duty,
obligation or cause of action relating to any matters of any kind, whether
presently known
or unknown, suspected or unsuspected,
that
you may possess against any of the Releasees arising from any omissions, acts
or
facts that have occurred up until and including the Effective Date of this
Release including, without limitation:
(a)
any
and
all claims relating to or arising from your employment relationship with the
Company and the termination of that relationship;
(b)
any
and
all claims relating to, or arising from, your right to purchase, or actual
purchase of shares of stock or other securities of the Company or any of its
affiliates or subsidiaries, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law;
(c)
any
and
all claims for wrongful discharge of employment; termination in violation of
public policy; discrimination; harassment; retaliation; breach of contract,
both
express and implied, including, without limitation, any and all claims arising
under or in connection with the Employment Agreement; breach of a covenant
of
good faith and fair dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress; negligent or
intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; and conversion;
(d)
any
and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights
Act of 1991; the Age Discrimination in Employment Act of 1967; the Americans
with Disabilities Act of 1990; the Fair Labor Standards Act; the Employee
Retirement Income Security Act of 1974; The Worker Adjustment and Retraining
Notification Act; the Family and Medical Leave Act; the California Fair
Employment and Housing Act; the California Family Rights Act; and the California
Labor Code, including, but not limited to Section 201, et seq,. Section 970,
et
seq., Sections 1400-1408; and all amendments to each such Act as well as the
regulations issued thereunder;
-13-
(e)
any
and
all claims for violation of the federal, or any state, constitution;
(f)
any
and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination; and
(g)
any
and
all claims for attorneys’ fees and costs;
provided,
however,
that
the parties hereto agree and acknowledge that you have not, by virtue of this
Release or otherwise, waived any claim, duty, obligation or cause of action
relating to any of the following:
(i)
any
matter that arises after the Effective Date of this Release;
(ii)
vested
benefits under any employee benefit plan within the meaning of section 3(3)
of
the Employee Retirement Income Security Act of 1974, as amended;
(iii) any
claim
relating to indemnification in accordance with applicable laws or the Company’s
certificate of incorporation or by-laws or any applicable insurance policy,
with
respect to any liability as a director, officer or employee of the Company
(including as a trustee, director or officer of any employee benefit plan);
(iv) any
right
to obtain contribution as permitted by law in the event of entry of judgment
against you as a result of any act or failure to act for which the Company
and
you are held jointly liable; and
(v)
any
of
your rights as a Limited Partner of Partnership under the Partnership
Agreement.
You
agree
that the release set forth in this Paragraph shall be and remain in effect
in
all respects as a complete general release as to the matters released. This
release does not extend to any obligations incurred under this Release. In
the
event that any of the parties brings an action to enforce or effect their rights
under this Release, the prevailing party shall be entitled to recover their
reasonable attorneys’ fees and expenses incurred in connection with such an
action.
3. Acknowledgment
of Waiver of Claims under ADEA.
You
acknowledge that you are waiving and releasing any rights you may have under
the
Age Discrimination in Employment Act of 1967 (“ADEA”)
and
that this waiver and release is knowing and voluntary. You and the Company
agree
that this Release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Release. You acknowledge that the
consideration given for this Release is in addition to anything of value to
which you were already entitled. You further acknowledge that you have been
advised by this writing that:
-14-
(a)
you
should consult with an attorney prior
to
executing this Release;
(b)
you
have
up to [____] days within which to consider this Release;
(c)
you
have
seven days following your execution of this Release to revoke this Release;
and
this Release shall not be effective until the eighth day after you execute
and
do not revoke this Release; nothing in this Release prevents or precludes you
from challenging or seeking a determination in good faith of the validity of
this waiver under the ADEA, nor does it impose any condition precedent,
penalties or costs from doing so, unless specifically authorized by federal
law.
Any
revocation must be in writing and delivered to the Company as follows:
[______________________________] by close of business on or before the seventh
day from the date that you sign this Release.
4. Civil
Code Section 1542/Unknown Claims.
You
represent that you are not aware of any claims against the Company other than
the claims that are released by this Release. You acknowledge that you have
had
the opportunity to be advised by legal counsel and are familiar with the
provisions of California Civil Code 1542, below, which provides as
follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.
Being
aware of said code section, you agree to expressly waive any rights you may
have
thereunder, as well as under any statute or common law principles of similar
effect.
5. No
Pending or Future Lawsuits.
You
represent that you have no lawsuits, claims, or actions pending in your name,
or
on behalf of any other person or entity, against the Company or any of the
Releasees. You also represent that you do not intend to bring any claims on
your
own behalf or on behalf of any other person or entity against the Company or
any
of the Releasees.
6. Confidentiality
of Release.
You
agree to keep the terms of this Release in the strictest confidence and, except
as required by law, not reveal the terms of this Release to any persons except
your immediate family, your attorney, and your financial advisors (and to them
only provided that they also agree to keep the information completely
confidential), and the court in any proceedings to enforce the terms of this
Release.
7. Non-Disparagement.
You
agree not to make any public oral or written statement, or take any other public
action, that disparages or criticizes the Company’s management, employees,
products or services, in any case that damages the Company’s reputation or
impairs its normal operations.
-15-
8. Entire
Agreement.
The
terms of which are specifically incorporated herein, this Release constitutes
the entire agreement between you and the Company concerning your employment
with
and separation from the Company and all the events leading thereto and
associated therewith, and supercedes and replaces any and all prior agreements
and understandings, both written and oral, concerning your relationship with
the
Company.
9. Successors
and Assigns.
This
Release shall be binding upon each of the parties and upon their respective
heirs, administrators, representatives, executors, successors and assigns,
and
shall inure to the benefit of each party and to their heirs, administrators,
representatives, executors, successors, and assigns.
10. No
Admission of Liability.
You
understand and acknowledge that this Release constitutes a compromise and
settlement of any and all potential disputed claims. No action taken by the
Company hereto, either previously or in connection with this Release, shall
be
deemed or construed to be: (a) an admission of the truth or falsity of any
potential claims; or (b) an acknowledgment or admission by the Company of any
fault or liability whatsoever to you or to any third party.
11. Authority.
The
Company represents and warrants that the undersigned has the authority to act
on
behalf of the Company and to bind the Company and all who may claim through
it
to the terms and conditions of this Release. Similarly, you represent and
warrant that you have the capacity to act on your own behalf and on behalf
of
all who might claim through you to bind them to the terms and conditions of
this
Release. The Company and you each warrant and represent that there are no liens
or claims of lien or assignments in law or equity or otherwise of or against
any
of the claims or causes of action released herein.
12. Effective
Date.
This
Release is effective after it has been signed by both parties and after seven
days have passed since you have signed this Release (such date, the
“Effective
Date”).
13. Voluntary
Execution of Release.
This
Release is executed voluntarily and without any duress or undue influence on
the
part or behalf of the parties hereto, with the full intent of releasing all
claims except claims specifically excluded under Paragraph 4 hereof. The parties
acknowledge that:
(a)
They
have
read this Release;
(b)
They
have
been represented in the preparation, negotiation, and execution of this Release
by legal counsel of their own choice or that they have voluntarily declined
to
seek such counsel;
(c)
They
understand the terms and consequences of this Release and of the releases it
contains; and
(d)
They
are
fully aware of the legal and binding effect of this Release. The laws of the
State of California govern this Release, regardless of the laws that might
otherwise govern under applicable principles of conflict of law thereof. In
the
event that any portion of this Release or the application thereof, becomes
or is
declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Release will continue in full force and
effect and the application of such portion to other persons or circumstances
will be interpreted so as reasonable to effect the intent of the parties hereto.
This Release may not be modified, amended, altered or supplemented except by
the
execution and delivery of a written agreement executed by you and an authorized
representative of the Company or by a court of competent
jurisdiction.
-16-