Exhibit 10.1


 


EMPLOYMENT
AGREEMENT


 


BETWEEN


 


Primoris Services
Corporation


 


AND


 


Peter J. Moerbeek


 


February 6,
2009


 

















 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
is made and entered into as of February 6, 
2009, by and among Primoris Services Corporation, a Delaware corporation
(the “Employer”), and Peter J. Moerbeek (the “Employee”).


 


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, except as otherwise approved pursuant to paragraph 8;


 


(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 Services 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.


 


“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.


 


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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 Executive Vice President, Chief
Financial Officer, reporting to Employer’s Chief Executive Officer, and shall
have the usual and customary duties, responsibilities and authority of such
position.  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
Three Hundred Fifty Thousand Dollars ($350,000) per annum, payable in equal
installments twice monthly on Employer’s regular payroll dates, less applicable
deductions and withholdings. Within ten (10) days from the effective date
of this Agreement, Employer shall pay Employee a one-time signing bonus in the
sum of Twenty Thousand Dollars ($20,000), 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.


 


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(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.


 


(d)           Termination by Death or Disability.  This Agreement and the Employee’s employment
hereunder shall automatically terminate upon the Employee’s death or
Disability.


 


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(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.


 


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(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
Employer’s Chief Executive Officer.


 


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 


 


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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.


 


11.                                 Confidential Information.


 


(a)                                  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.


 


(b)                                 Employee
is aware that Employer is confident of its ability to compete on the basis of
its own products and commitment to service, and Employee understands that
Employer does not desire to obtain or make use of any trade secrets or
confidential information (if any) that Employee may have acquired during any
former employment with Ni America Capital Mangement, LLC, a Delaware Limited
Liability Company (“NACM”).  It has been
explained to Employee that any information needed to succeed in his position is
publicly available, readily known throughout the industry, or can be otherwise
obtained without recourse to trade secret or confidential information obtained
through his prior employment with NACM, including by Employer’s provision of
its own trade secret and confidential information for Employee’s use.  Employee agrees that during his employment
with Employer, Employee will not improperly disclose or use any trade secrets
or confidential information that Employee may have acquired from prior
employment with NACM.  If at any time
Employee believes that his job duties would otherwise touch upon trade secrets
or confidential information obtained during prior employment with NACM,
Employee will refrain from any use or disclosure of such information and let
Employer know immediately.


 


(c)                                  Employee
acknowledges that Employer has not asked Employee to provide it with any
documents or records obtained from former employment with NACM.  Employee has not brought and will not bring
with him to Employer, or use in his employment, any materials or documents of
NACM that are not generally available to the public, unless Employee has
obtained express written authorization from NACM for their possession and use
for Employer’s benefit.


 


(d)                                 Employee
also understands that, in his service to Employer, Employee is not to breach
any obligation of confidentiality that Employee may have to NACM.  Employee represents that his performance of
all the terms of this Agreement and his performance as an employee of Employer
does not and will not breach any agreement by Employee to protect any trade
secrets and confidential information Employee may have acquired from NACM prior
to his employment with Employer. 
Employee has not entered into, and Employee agrees that Employee will
not enter into, any agreement, either written or oral, which is in conflict
with this Agreement.  Employee has
provided Employer with a copy of any and all agreements with former employers
concerning the confidentiality of proprietary information, assignment of
inventions, or any other related subject matter which may affect his duties as
an employee.


 


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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.


 


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 


 


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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.


 


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.


 


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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.


 


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.


 


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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:                                                                          John M. Perisich


Primoris Services Corporation


26000 Commercentre Dr.


Lake Forest, CA  92630


Facsimile: (949) 595-5544


 


with a copy to:                                                                                                                 Rutan &
Tucker

611 Anton Boulevard, Fourteenth Floor

Costa Mesa, California 92626-1931

Facsimile: (714) 546-9035

Attention:  George J. Wall, Esq.


 


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.


 


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


 


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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 Services Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Pratt

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian Pratt

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Peter J. Moerbeek

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Peter J. Moerbeek

  	
  , individually

  
				



 


13
















 


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 sue 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 


 


14

















 


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;


 


(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 


 


15

















 


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:


 


(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.


 


16

















 


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


 


17

















 


(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.


 


18