Exhibit 10.15
EMPLOYMENT
AGREEMENT
BETWEEN
Primoris
Corporation
AND
Brian
Pratt
February 19,
2008
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered
into as of February 19, 2008, and effective as of the Closing Date
(as hereinafter defined), by and among Primoris Corporation, a
Nevada corporation (the " Employer "), and Brian Pratt (the
" Employee ").
WHEREAS, pursuant to that certain Agreement And
Plan of Merger by and among Rhapsody Acquisition Corp., Primoris
Corporation and certain of the shareholders of Primoris Corporation
dated 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.
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.
"C ause " 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.
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".
During the Employment Period, the Employee shall
serve as the Chief Executive Officer, reporting to the Board, 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. Notwithstanding the
above, nothing in this Article shall prohibit or restrict Employee
from engaging, in or holding any passive investment, including any
equity interest, in any business activity.
(a)
Salary . During the Employment Period, the Employer
shall pay the Employee base salary (the " Base Salary ") at
the rate of Five Hundred Thousand Dollars ($500,000) 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.
(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 one-hundred (100) 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.
(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
(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.
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.
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
