VOTING
AGREEMENT
VOTING AGREEMENT, dated as of this July 31, 2008
(“Agreement”), among each of the persons listed under
the caption “Target Group” on Exhibit A attached hereto
(the “Target Group”), each of the persons listed under
the caption “Founders Group” on Exhibit A attached
hereto (the “Founders Group”) and Rhapsody Acquisition
Corp., a Delaware corporation (“Delcorp”). Each of the
Target Group and the Founders Group is sometimes referred to herein
as a “Group.” For purposes of this Agreement, each
person who is a member of either the Target Group or the Founders
Group is referred to herein individually as a
“Stockholder” and collectively as the
“Stockholders.” Capitalized terms used but not defined
in this Agreement shall have the meanings ascribed to them in the
Merger Agreement;
WHEREAS, as of February 19, 2008, each of
Delcorp, Primoris Corporation (the “Company”), a Nevada
corporation, and the Signing Shareholders have entered into an
Agreement and Plan of Merger (the “Merger Agreement”)
that provides, inter alia , upon the terms
and subject to the conditions thereof, for the merger of the
Company into Delcorp (the “Merger”);
WHEREAS, as of the date hereof, each Stockholder
who is a member of the Founders Group owns beneficially and of
record shares of common stock of Delcorp, par value $0.0001 per
share (“Delcorp Common Stock”), as set forth opposite
such Stockholder’s name on Exhibit A hereto (all
such shares and any shares of which ownership of record or the
power to vote is hereafter acquired by any of the Stockholders,
whether by purchase, conversion or exercise, prior to the
termination of this Agreement being referred to herein as the
“Shares”);
WHEREAS, at the Effective Time, all shares of
Company Common Stock beneficially owned by each Stockholder who is
a member of the Target Group shall be converted into the right to
receive and shall be exchanged for his, her or its pro rata portion
of the shares of Delcorp Common Stock to be issued to the
Company’s security holders as consideration in the Merger;
and
WHEREAS, as a condition to the consummation of
the Merger Agreement, the Stockholders have agreed, severally, to
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises
and of the mutual agreements and covenants set forth herein and in
the Merger Agreement, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES FOR
DIRECTORS
SECTION 1.01 Vote in Favor of the Directors
. During the term of this Agreement,
each Stockholder agrees to vote the Shares of Delcorp Common Stock
he, she or it now owns, or will hereafter acquire prior to the
termination of this Agreement, for the election and re-election of
the following persons as directors of Delcorp:
(a) Five (5) persons, (i) three (3) of whom shall
at all times be “independent directors,” within the
meaning of the NASDAQ rules, and (ii) all of whom shall be
designees of the Company; with two (2) of such designees to stand
for election or re-election in 2009 (“Class A
Directors”), who shall initially be Brian Pratt and Thomas E.
Tucker, who will be an “independent director;” three
(3) of such designees to stand for election or re-election in 2010
(“Class B Directors”), who shall initially be John P.
Schauerman, Stephen C. Cook and Peter J. Moerbeek, with Messrs.
Cook and Moerbeek who will each be an “independent
director” (collectively, the “Target
Directors”);
(b) Two (2) persons all of whom shall be designees
of the Founders Group to stand for election in 2011 (“Class C
Directors”), which shall initially be Eric S. Rosenfeld and
David S. Sgro, (the “Founders Directors,” and together
with the Target Directors, the “Director Designees”);
and
(c) Brian Pratt is to be elected and serve as
Chairman of the Board of Directors.
(d) The Founders Group may also designate a person
to serve as an observer at all meetings of the Board of Directors
and committees thereof, who shall be given all documents and other
information furnished to the members of the Board of Directors at
the time such information is so furnished (the “
Observer ”). At the election of the Founders Group,
the person then acting as Observer shall be designated to serve all
or a part of any unexpired term of the person designated by the
Founders Group to serve as a Class C Director, in which event the
person designated by the Founders Group to serve as a Class C
Director shall serve as the Observer.
Neither the Stockholders, nor any of the
officers, directors, stockholders, members, managers, partners,
employees or agents of any Stockholder, makes any representation or
warranty as to the fitness or competence of any Director Designee
to serve on the Board of Directors by virtue of such party’s
execution of this Agreement or by the act of such party in
designating or voting for such Director Designee pursuant to this
Agreement.
Any Director Designee may be removed from the
Board of Directors in the manner allowed by law and Delcorp’s
governing documents except that each Stockholder agrees that he,
she or it will not, as a stockholder, vote for the removal of any
director who is a member of a Group of which such Stockholder is
not a member. If a director is removed or resigns from office, the
remaining directors of the Group of which the vacating director is
a member shall be entitled to appoint the successor.
SECTION 1.02 Vote in Favor of Stock Option Plan
. During the term of this Agreement,
each Stockholder agrees to vote the Shares of Delcorp Common Stock
he, she or it now owns, or hereafter acquires prior to the
termination of this Agreement, in favor of the adoption of the
Delcorp Plan (as defined in the Merger Agreement).
SECTION 1.03 Obligations of Delcorp . Delcorp shall take all necessary and desirable
actions within its control during the term of this Agreement to
provide for the Delcorp Board of Directors to be comprised of seven
(7) members and to enable the election to the Board of Directors of
the Director Designees.
SECTION 1.04 Term of Agreement . The rights and obligations of the
Stockholders pursuant to this Agreement shall terminate immediately
prior to the election or re-election of directors at the annual
meeting of Delcorp that will be held in 2011.
SECTION 1.05 Obligations as Director and/or
Officer . Nothing in this
Agreement shall be deemed to limit or restrict any director or
officer of Delcorp from acting in his or her capacity as such
director or officer or from exercising his or her fiduciary duties
and responsibilities, it being agreed and understood that this
Agreement shall apply to each Stockholder solely in his or her
capacity as a stockholder of Delcorp and shall not apply to his or
her actions, judgments or decisions as a director or officer of
Delcorp if he or she is such a director or officer.
SECTION 1.06 Transfer of Shares . If a member of the Target Group desires to
transfer his, her or its Shares to a permitted transferee pursuant
to the Lock-Up Agreement of even date herewith executed by such
member, or if a member of the Founders Group desires to transfer
his or its shares to a permitted transferee pursuant to the Stock
Escrow Agreement dated as of October [3], 2006, it shall be a
condition to such transfer that the transferee agree to be bound by
the provisions of this Agreement. This Agreement shall in no way
restrict the transfer on the public market of Shares that are not
subject to the Lock-Up Agreement or the Stock Escrow Agreement, and
any such transfers on the public market of Shares not subject to
the provisions of the Lock-Up Agreement or the Stock Escrow
Agreement, as applicable, shall be free and clear of the
res
