Exhibit 10.8


 


EMPLOYMENT
AGREEMENT


 


BETWEEN


 


JAMES CONSTRUCTION
GROUP, L.L.C.


 


 


AND


 


MIKE KILLGORE


 


November 18,
2009


 

















 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made and entered into as of November 18, 2009, and
effective as of the Closing Date (as hereinafter defined), by and among James
Construction Group, L.L.C., a Florida Limited Liability Company (the “Employer”),
and Mike Killgore, an individual (the “Employee”).


 


WHEREAS, pursuant to that
certain Membership Interest Purchase Agreement by and among Primoris Services
Corporation, the Employer, the members of Employer and Michael D. Killgore, as
Sellers’ Representative dated on or about November 18, 2009, a closing
date for the consummation of the prospective purchase 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.


 


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;


 


(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


 


1

















 


(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 James Construction Group, L.L.C.


 


“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 (but no
sooner than the giving of the notice); (iv) in the case of a Termination
for Cause or a Termination without Cause, shall mean 


 


2

















 


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.


 


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 Closing
Date, 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 or periods of time, if any, during which Employee
remains employed by Employer shall collectively be referred to herein as the “Employment
Period”.


 


3.             Position and Duties.


 


During the Employment
Period, the Employee shall serve as the President, reporting to Brian Pratt,
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. 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 $253,000
per annum, payable in equal installments twice monthly on Employer’s regular
payroll dates, less applicable deductions and withholdings.


 


(b)           Performance Bonus.  In addition to the Base Salary, during the
Employment Period the Employee shall be eligible to receive a cash bonus (the “Bonus”)
with respect to each calendar year as of the last day of which the Employee is
employed by the Employer.  The amount of
the Bonus, if any, payable in respect of any calendar year will be determined
at the sole discretion of Employer by the Board or compensation committee of
the Board of Directors of Employer’s parent company (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.


 


3

















 


(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 Employment Period
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.


 


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 (“Mutual Agreement”).


 


(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 (“Resignation”).


 


4

















 


(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 (“Nonrenewal”).


 


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 longer if and to the extent required by law;
or (ii) the date that Employee obtains comparable health benefits through
new employment.


 


5

















 


(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)           Exclusive Remedy.  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 the Board.


 


9.             The Employee’s Termination
Obligations.


 


The Employee hereby
acknowledges and agrees that all personal property and equipment furnished to
or prepared by the Employee in the course of or incident to his employment
hereunder belongs to Employer and shall be promptly returned to Employer upon
termination of the Employee’s employment. 
The term “personal property” includes, without limitation, all
office equipment, laptop computers, cell phones, books, manuals, records,
reports, notes, contracts, requests for proposals, bids, lists, blueprints, and
other documents, or materials, or copies thereof (including computer files),
and all other proprietary and non-proprietary information relating to the
business of Employer.  Following
termination of his employment hereunder, the Employee will not retain any
written or other tangible material containing any proprietary or non-proprietary
information of Employer.


 


10.           Acknowledgment of
Protectable Interests.


 


The Employee acknowledges
and agrees that his employment with Employer involves building and maintaining
business relationships and good will on behalf of the Employer with customers,
and other professional contractors, subcontractors, employees and staff, and
various providers and users of services related to Employer’s business; that he
is entrusted with proprietary, strategic and other confidential information
which is of special value to Employer; and that the foregoing matters are
significant interests which the Employer is entitled to protect.


 


6

















 


11.           Confidential Information.


 


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.


 


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, and
as provided in Section 25.


 


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, 


 


7

















 


including,
but not limited to, any state or federal statutory claims, shall be submitted
to final and binding arbitration in Harris County, Texas, 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, 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 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.  Employer
and Employee do hereby terminate, as they apply to Employee, the effectiveness
of the covenant not to compete and other restrictions contained in Section 6.3
of that certain Membership Interest Purchase Agreement dated effective October 20,
2005, by and among Employer, Employee and certain of the other members of
Employer.


 


8

















 


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.


 


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.


 


9

















 


22.           Choice of Law.


 


This Agreement shall be
governed as to its validity and effect by the laws of the state of Delaware
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.


 


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 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.


 


10

















 


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 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]


 


11
















 


IN WITNESS WHEREOF, the
parties hereto have executed this Employment Agreement as of the date first
written above.


 


	
   

  	
  James
  Construction Group, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald B.
  Bonaventure

  
	
   

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Donald B.
  Bonaventure

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Mike
  Killgore

  
	
   

  	
  Mike Killgore, individually

  



 


12

















 


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 Security
Act of 1974; The Worker Adjustment and Retraining Notification Act; the 


 


13

















 


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 under the Membership
Interest Purchase Agreement and other agreements, stock or instruments executed
or to be executed, or delivered or to be delivered in connection therewith
(except for this Employment 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 


 


14

















 


ADEA
after the Effective Date of this Release. 
You acknowledge that the consideration given 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 with respect to claims released hereunder.  You also represent that you do not intend to
bring any claims with respect to claims released hereunder 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.


 


15

















 


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 provided Employee
reserves the right to make allegations in litigation or arbitration matters
with respect to claims not released hereunder.


 


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 employment 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 with respect to claims released hereunder.  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;


 


16

















 


(c)           They understand the terms and
consequences of this Release and of the releases it contains; and


 


(d)           They are fully aware of the legal and
binding effect of this Release.  The laws
of the State of Delaware 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.


 


17