Exhibit 4.1
Primoris Corporation
(formerly known as Rhapsody Acquisition Corp.)
2008 Long-Term Incentive Equity
Plan
Section 1. Purpose; Definitions.
1.1. Purpose .
The purpose of the 2008 Long-Term Incentive Equity Plan
(“Plan”) is to enable the Company to offer to its
employees, officers, directors and consultants whose past, present
and/or potential contributions to the Company and its Subsidiaries
have been, are or will be important to the success of the Company,
an opportunity to acquire a proprietary interest in the Company.
The various types of long-term incentive awards that may be
provided under the Plan will enable the Company to respond to
changes in compensation practices, tax laws, accounting regulations
and the size and diversity of its businesses.
1.2. Definitions .
For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) “Agreement”
means the agreement between the Company and the Holder, or such
other document as may be determined by the Committee, setting forth
the terms and conditions of an award under the Plan.
(b) “Board” means
the Board of Directors of the Company.
(c) “Code” means
the Internal Revenue Code of 1986, as amended from time to
time.
(d) “Committee”
means the committee of the Board designated to administer the Plan
as provided in Section 2.1.
(e) “Common Stock”
means the Common Stock of the Company, par value $.0001 per
share.
(f) “Company”
means Primoris Corporation., a corporation organized under the law
of the State of Delaware originally under the name of
“Rhapsody Acquisition Corp.”
(g) [Intentionally
omitted.]
(h) “Disability”
means physical or mental impairment as determined under procedures
established by the Committee for purposes of the Plan.
(i) “Effective
Date” means the date determined pursuant to
Section 13.1.
(j) “Fair Market
Value”, unless otherwise required by any applicable provision
of the Code or any regulations issued thereunder, means, as of any
given date: (i) if the Common Stock is listed on a national
securities exchange or the Nasdaq Stock Market, the last sale price
of the Common Stock in the principal trading market for the Common
Stock on such date, as reported by the exchange or Nasdaq, as the
case may be; (ii) if the Common Stock is not listed on a
national securities exchange or the Nasdaq Stock Market, but is
traded in the over-the-counter market, the closing bid price for
the Common Stock on such date, as reported by the OTC Bulletin
Board or Pink Sheets, LLC or similar publisher of such quotations;
and (iii) if the fair market value of the Common Stock cannot
be determined pursuant to clause (i) or (ii) above, such
price as the Committee shall determine, in good faith.
(k) “Holder” means
a person who has received an award under the Plan.
(l) “Incentive Stock
Option” means any Stock Option intended to be and designated
as an “incentive stock option” within the meaning of
Section 422 of the Code.
(m) “Non-qualified Stock
Option” means any Stock Option that is not an Incentive Stock
Option.
(n) “Normal
Retirement” means retirement from active employment with the
Company or any Subsidiary on or after such age which may be
designated by the Committee as “retirement age” for any
particular Holder. If no age is designated, it shall be
65.
(o) “Other Stock-Based
Award” means an award under Section 9 that is valued in
whole or in part by reference to, or is otherwise based upon,
Common Stock.
(p) “Parent” means
any present or future “parent corporation” of the
Company, as such term is defined in Section 424(e) of the
Code.
(q) “Plan” means
the Primoris Corporation 2008 Long-Term Incentive Equity Plan, as
hereinafter amended from time to time.
(r) “Repurchase
Value” shall mean the Fair Market Value if the award to be
settled under Section 2.2(e) or repurchased under
Section 10.2 is comprised of shares of Common Stock and the
difference between Fair Market Value and the Exercise Price (if
lower than Fair Market Value) if the award is a Stock Option or
Stock Appreciation Right; in each case, multiplied by the number of
shares subject to the award.
(s) “Restricted
Stock” means Common Stock received under an award made
pursuant to Section 7 that is subject to restrictions under
Section 7.
(t) “SAR Value”
means the excess of the Fair Market Value (on the exercise date)
over the exercise price that the participant would have otherwise
had to pay to exercise the related Stock Option, multiplied by the
number of shares for which the Stock Appreciation Right is
exercised.
(u) “Stock Appreciation
Right” means the right to receive from the Company, on
surrender of all or part of the related Stock Option, without a
cash payment to the Company, a number of shares of Common Stock
equal to the SAR Value divided by the Fair Market Value (on the
exercise date).
(v) “Stock Option”
or “Option” means any option to purchase shares of
Common Stock which is granted pursuant to the Plan.
(w) “Subsidiary”
means any present or future “subsidiary corporation” of
the Company, as such term is defined in Section 424(f) of
the Code.
(x) “Vest” means
to become exercisable or to otherwise obtain ownership rights in an
award.
Section 2.
Administration.
2.1. Committee
Membership . The Plan shall be administered by a
Committee of the Board of at least two directors, all of whom are
“outside directors” within the meaning of the
regulations issued under Section 162(m) of the Code.
Committee members shall serve for such term as the Board may in
each case determine and shall be subject to removal at any time by
the Board.
2.2. Powers of
Committee . The Committee shall have full authority to
award, pursuant to the terms of the Plan: (i) Stock Options,
(ii) Stock Appreciation Rights, (iii) Restricted Stock,
and/or (iv) Other Stock-Based Awards. For purposes of
illustration and not of limitation, the Committee shall have the
authority (subject to the express provisions of this
Plan):
(a) to select the officers,
employees, directors and consultants of the Company or any
Subsidiary to whom Stock Options, Stock Appreciation Rights,
Restricted Stock and/or Other Stock-Based Awards may from time to
time be awarded hereunder.
(b) to determine the terms and
conditions, not inconsistent with the terms of the Plan, of any
award granted hereunder (including, but not limited to, number of
shares, share exercise price or types of consideration paid upon
exercise of such options, such as other securities of the Company
or other property, any restrictions or limitations, and any
vesting, exchange, surrender, cancellation, acceleration,
termination, exercise or forfeiture provisions, as the Committee
shall determine);
(c) to determine any specified
performance goals or such other factors or criteria which need to
be attained for the vesting of an award granted
hereunder;
(d) to determine the terms and
conditions under which awards granted hereunder are to operate on a
tandem basis and/or in conjunction with or apart from other equity
awarded under this Plan and cash and non-cash awards made by the
Company or any Subsidiary outside of this Plan; and
(e) to make payments and
distributions with respect to awards ( i.e ., to
“settle” awards) through cash payments in an amount
equal to the Repurchase Value.
The Committee may not modify or
amend any outstanding Option or Stock Appreciation Right to reduce
the exercise price of such Option or Stock Appreciation Right, as
applicable, below the exercise price as of the date of grant of
such Option or Stock Appreciation Right. In addition, no
Option or Stock Appreciation Right may be granted in exchange for,
or in connection with, the cancellation or surrender of an Option
or Stock Appreciation Right or other award having a lower exercise
price.
Notwithstanding anything to the
contrary, the Committee shall not grant to any one Holder in any
one calendar year awards for more than 40,000 shares in the
aggregate.
2.3. Interpretation of
Plan .
(a) Committee Authority
. Subject to Section 12, the Committee shall have the
authority to adopt, alter and repeal such administrative rules,
guidelines and practices governing the Plan as it shall from time
to time deem advisable to interpret the terms and provisions of the
Plan and any award issued under the Plan (and to determine the form
and substance of all agreements relating thereto), and to otherwise
supervise the administration of the Plan. Subject to
Section 12, all decisions made by the Committee pursuant to
the provisions of the Plan shall be made in the Committee’s
sole discretion and shall be final and binding upon all persons,
including the Company, its Subsidiaries and Holders.
(b) Incentive Stock
Options . Anything in the Plan to the contrary
notwithstanding, no term or provision of the Plan relating to
Incentive Stock Options (including but not limited to Stock
Appreciation rights granted in conjunction with an Incentive Stock
Option) or any Agreement providing for Incentive Stock Options
shall be interpreted, amended or altered, nor shall any discretion
or authority granted under the Plan be so exercised, so as to
disqualify the Plan under Section 422 of the Code or, without
the consent of the Holder(s) affected, to disqualify any
Incentive Stock Option under such Section 422.
Section 3. Stock
Subject to Plan.
3.1. Number of Shares
. Subject to the last sentence of Section 7.1, the total
number of shares of Common Stock reserved and available for
issuance under the Plan shall be 1,520,000 shares. Shares of Common
Stock under the Plan (“Shares”) may consist, in whole
or in part, of authorized and unissued shares or treasury shares.
If any shares of Common Stock that have been granted pursuant to a
Stock Option cease to be subject to a Stock Option, or if any
shares of Common Stock that are subject to any Stock Appreciation
Right, Restricted Stock award or Other Stock-Based Award granted
hereunder are forfeited or any such award otherwise terminates
without a payment being made to the Holder in the form of Common
Stock, such shares shall again be available for distribution in
connection with future grants and awards under the Plan. If a
Holder pays the exercise price of a Stock Option by surrendering
any previously owned shares and/or arranges to have the appropriate
number of shares otherwise issuable upon exercise withheld to cover
the withholding tax liability associated with the Stock Option
exercise, then, in the Committee’s discretion, the number of
shares available under the Plan may be increased by the lesser of
(i) the number of such surrendered shares and shares used to
pay taxes; and (ii) the number of shares purchased under such
Stock Option.
3.2. Adjustment Upon
Changes in Capitalization, Etc. In the event of any
common stock dividend payable on shares of Common Stock, Common
Stock split or reverse split, combination or exchange of shares of
Common Stock, or other extraordinary or unusual event which results
in a change in the shares of Common Stock of the Company as a
whole, the Committee shall determine, in its sole discretion,
whether such change equitably requires an adjustment in the terms
of any award in order to prevent dilution or enlargement of the
benefits available under the Plan (including number of shares
subject to the award and the exercise price) or the aggregate
number of shares reserved for issuance under the Plan. Any such
adjustments will be made by the Committee, whose determination will
be final, binding and conclusive.
Section 4.
Eligibility.
Awards may be made or granted to
employees, officers, directors and consultants who are deemed to
have rendered or to be able to render significant services to the
Company or its Subsidiaries and who are deemed to have contributed
or to have the potential to contribute to the success of the
Company and which recipients are qualified to receive options under
the regulations governing Form S-8 registration statements
under the Securities Act of 1933, as amended (“Securities
Act”). No Incentive Stock Option shall be granted to any
person who is not an employee of the Company or an employee of a
Subsidiary at the time of grant or so qualified as set forth in the
immediately preceding sentence. Notwithstanding the foregoing, an
award may also be made or granted to a person in connection with
his hiring or retention, or at any time on or after the date he
reaches an agreement (oral or written) with the Company with
respect to such hiring or retention, even though it may be prior to
the date the person first performs services for the Company or its
Subsidiaries; provided, however, that no portion of any such award
shall vest prior to the date the person first performs such
services and the date of grant shall be the date hiring or
retention commences.
Section 5. Stock
Options.
5.1. Grant and
Exercise . Stock Options granted under the Plan may be of
two types: (i) Incentive Stock Options and
(ii) Non-qualified Stock Options. Any Stock Option granted
under the Plan shall contain such terms, not inconsistent with this
Plan, or with respect to Incentive Stock Options, not inconsistent
with the Plan and the Code, as the Committee may from time to time
approve. The Committee shall have the authority to grant Incentive
Stock Options or Non-qualified Stock Options, or both types of
Stock Options which may be granted alone or in addition to other
awards granted under the Plan. To the extent that any Stock Option
intended to qualify as an Incentive Stock Option does not so
qualify, it shall constitute a separate Non-qualified Stock
Option.
5.2. Terms and
Conditions . Stock Options granted under the Plan shall
be subject to the following terms and conditions:
(a) Option Term .
The term of each Stock Option shall be fixed by the
Committee; provided, however, that an Incentive Stock Option may be
granted only within the ten-year period commencing from the
Effective Date and may only be exercised within ten years of the
date of grant (or five years in the case of an Incentive Stock
Option granted to an optionee who, at the time of grant, owns
Common Stock possessing more than 10% of the total combined voting
power of all classes of voting stock of the Company (“10%
Stockholder”)).
(b) Exercise Price .
The exercise price per share of Common Stock purchasable
under a Stock Option shall be determined by the Committee at the
time of grant and may not be less than 100% of the Fair Market
Value on the date of grant (or, if greater, the par value of a
share of Common Stock); provided, however, that the exercise price
of an Incentive Stock Option granted to a 10% Stockholder will not
be less than 110% of the Fair Market Value on the date of
grant.
(c) Exercisability .
Stock Options shall be exercisable at such time or times and
subject to such terms and conditions as shall be determined by the
Committee and as set forth in Section 10. The Committee
intends generally to provide that Stock Options be exercisable only
in installments, i.e., that they vest over time, typically over a
[three]-year period. The Committee may waive such installment
exercise provisions at any time at or after the time of grant in
whole or in part, based upon such factors as the Committee
determines.
(d) Method of Exercise
. Subject to whatever installment, exercise and waiting
period provisions are applicable in a particular case, Stock
Options may be exercised in whole or in part at any time during the
term of the Option by giving written notice of exercise to the
Company specifying the number of shares of Common Stock to be
purchased. Such notice shall be accompanied by payment in full of
the purchase price, which shall be in cash or, if provided in the
Agreement, either in shares of Common Stock (including Restricted
Stock and other contingent awards under this Plan) or partly in
cash and partly in such Common Stock, or such other means which the
Committee determines are consistent with the Plan’s purpose
and applicable law. Cash payments shall be made by wire transfer,
certified or bank check or personal check, in each case payable to
the order of the Company; provided, however, that the Company shall
not be required to deliver certificates for shares of Common Stock
with respect to which an Option is exercised until the Company has
confirmed the receipt of good and available funds in payment of the
purchase price thereof (except that, in the case of an exercise
arrangement approved by the Committee and described in the last
sentence of this paragraph, payment may be made as soon as
practicable after the exercise). The Committee may permit a
Holder to elect to pay the Exercise Price upon the exercise of a
Stock Option by irrevocably authorizing a third party to sell
shares of Common Stock (or a sufficient portion of the shares)
acquired upon exercise of the Stock Option and remit to the Company
a sufficient portion of the sale proceeds to pay the entire
Exercise Price and any tax withholding resulting from such
exercise.
(e) Stock Payments .
Payments in the form of Common Stock shall be valued at the
Fair Market Value on the date of exercise. Such payments shall be
made by delivery of stock certificates in negotiable form that are
effective to transfer good and valid title thereto to
