EMPLOYMENT AGREEMENT
BETWEEN
Primoris Corporation
AND
[Name of Employee]
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 ________ (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.
“
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.
1
“
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.
1 In
certain agreements a Subsidiary will be the Employer.
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
2
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 ________________ Dollars ($_________)
3
per
annum, payable in equal installments twice monthly on
Employer’s regular payroll dates, less applicable deductions
and withholdings.
2 One
(1) year for David Becker.
3 Will
vary from $227,500 to $500,000.
(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 _______ (___) hours
4
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.
4 Will
vary up to 100 hours per year. Certain employees will not have this
benefit.
(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 go
