Exhibit 10.1


 


ESCROW AGREEMENT


 


THIS ESCROW AGREEMENT (“Agreement”)
is made and entered into as of December 15, 2009 by and among Primoris
Services Corporation, a Delaware corporation (“Buyer”), Michael D.
Killgore, as Sellers’ Representative (the “Representative”), and Continental
Stock Transfer & Trust Company, as escrow agent (the “Escrow Agent”).


 


R
E C I T A L


 


Buyer, James Construction
Group, L.L.C., a Florida limited liability company (“Target”), each of
the Members of Target (each, a “Seller” and collectively, the “Sellers”),
and the Representative are the parties to a Membership Interest Purchase
Agreement dated as of November 18, 2009 (the “Purchase Agreement”)
pursuant to which Buyer has purchased from Sellers one hundred percent (100%)
of the issued and outstanding limited liability company interests of Target.  Pursuant to the Purchase Agreement, Buyer is
to be indemnified in certain respects. 
The parties desire to establish an escrow fund as collateral security
for the indemnification obligations under the Purchase Agreement.  The Representative has been designated
pursuant to the Purchase Agreement to represent all of the Sellers, and to act
on their behalf for purposes of this Agreement. Capitalized terms used herein
that are not otherwise defined herein shall have the meanings ascribed to them
in the Purchase Agreement.


 


The parties agree as
follows:


 


1.                                       Escrow Fund.


 


(a)                                  Concurrently with the execution hereof,
each Seller is delivering to the Escrow Agent, to be held in escrow pursuant to
the terms of this Agreement, stock certificates issued in the name of such Seller
representing the total number of Escrow Shares received by such Seller pursuant
to the Purchase Agreement in accordance with the allocations in Exhibit J
to the Purchase Agreement, together with two (2) assignments separate from
certificate executed in blank by such Seller, with medallion signature
guaranties.  The shares of Preferred
Stock represented by the stock certificates so delivered by the Sellers to the
Escrow Agent and any common stock in which the Preferred Stock is converted are
herein referred to in the aggregate as the “Escrow Fund.”  Reference herein to the Preferred Stock shall
include the common stock in which the Preferred Stock is converted.  The Escrow Agent shall maintain a separate
account for each Seller’s, and, subsequent to any transfer permitted pursuant
to Section 1(e), each Permitted Transferee’s, portion of the Escrow
Fund.


 


(b)                                 The Escrow Agent hereby agrees to act as
escrow agent and to hold, safeguard and disburse the Escrow Fund pursuant to
the terms and conditions hereof.  It
shall treat the Escrow Fund as a trust fund in accordance with the terms of
this Agreement and not as the property of Buyer. The Escrow Agent’s duties
hereunder shall terminate upon its distribution of the entire Escrow Fund in
accordance with this Agreement.


 


(c)                                  Except as herein provided, the Sellers
and Permitted Transferees (each an “Owner,” and collectively the “Owners”)
shall retain all of their rights as stockholders of Buyer with respect to
shares of Preferred Stock constituting the Escrow Fund during the period the 


 

















 


Escrow Fund is
held by the Escrow Agent (the “Escrow Period”), including, without
limitation, the right to vote their shares of Preferred Stock included in the
Escrow Fund.


 


(d)                                 During the Escrow Period, all dividends
payable in cash with respect to the shares of Preferred Stock included in the
Escrow Fund shall be paid to the Owners, but all dividends payable in stock or
other non-cash property (“Non-Cash Dividends”) shall be delivered to the
Escrow Agent to hold in accordance with the terms hereof.  As used herein, the term “Escrow Fund”
shall be deemed to include the Non-Cash Dividends distributed thereon, if any.


 


(e)                                  During the Escrow Period, no sale, transfer
or other disposition may be made of any or all of the shares of Preferred Stock
in the Escrow Fund except (i) to a “Permitted Transferee” (as hereinafter
defined), (ii) by virtue of the laws of descent and distribution upon
death of any Owner, or (iii) pursuant to a qualified domestic relations
order; provided, however, that such permissive transfers may be
implemented only upon the respective transferee’s written agreement to be bound
by the terms and conditions of this Agreement. 
As used in this Agreement, the term “Permitted Transferee” shall
include: (x) members of a Seller’s “Immediate Family” (as hereinafter
defined); (y) an entity in which (A) a Seller and/or members of a Seller’s
Immediate Family beneficially own 100% of such entity’s voting and non-voting
equity securities, or (B) a Seller and/or a member of such Seller’s
Immediate Family is a general partner and in which such Seller and/or members
of such Seller’s Immediate Family beneficially own 100% of all capital accounts
of such entity; and (z) a revocable trust established by a Seller during
his lifetime for the benefit of such Seller or for the exclusive benefit of all
or any of such Seller’s Immediate Family. 
As used in this Agreement, the term “Immediate Family” means,
with respect to any Seller, a spouse, lineal descendants, the spouse of any
lineal descendant, and brothers and sisters (or a trust, all of whose current
beneficiaries are members of an Immediate Family of the Seller).  In connection with and as a condition to each
permitted transfer, the Permitted Transferee shall deliver to the Escrow Agent
an assignment separate from certificate executed by the transferring Seller,
with medallion signature guaranty, or where applicable, an order of a court of
competent jurisdiction, evidencing the transfer of shares to the Permitted
Transferee, together with two (2) assignments separate from certificate
executed in blank by the Permitted Transferee, with medallion signature
guaranties, with respect to the shares transferred to the Permitted
Transferee.  Upon receipt of such
documents, the Escrow Agent shall deliver to Buyer’s transfer agent the
original stock certificate out of which the assigned shares are to be
transferred, together with the executed assignment separate from certificate
executed by the transferring Seller, or a copy of the applicable court order,
and shall request that Buyer issue new certificates representing (m) the
number of shares, if any, that continue to be owned by the transferring Seller,
and (n) the number of shares owned by the Permitted Transferee as the
result of such transfer.  Buyer, the
transferring Seller and the Permitted Transferee shall cooperate in all
respects with the Escrow Agent in documenting each such transfer and in
effectuating the result intended to be accomplished thereby.  During the Escrow Period, no Owner shall
pledge or grant a security interest in such Owner’s shares of Preferred Stock
included in the Escrow Fund or grant a security interest in such Owner’s rights
under this Agreement.


 


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2.                                       Claims.


 


(a)                                  Buyer may make a claim for
indemnification pursuant to the Purchase Agreement (“Indemnification Claim”)
against the Escrow Fund by giving notice (a “Notice”) to the
Representative (with a copy to the Escrow Agent) specifying (i) the
covenant, representation, warranty, agreement, undertaking or obligation
contained in the Purchase Agreement which it asserts has been breached or
otherwise entitles Buyer to indemnification and (ii) in reasonable detail,
the nature and dollar amount of any Indemnification Claim.  Buyer also shall deliver to the Escrow Agent
(with a copy to the Representative), concurrently with its delivery to the
Escrow Agent of the Notice, a certification as to the date on which the Notice
was delivered to the Representative.


 


(b)                                 If the Representative shall give a notice
to Buyer (with a copy to the Escrow Agent) (a “Counter Notice”), within
30 days following the date of receipt (as specified in Buyer’s certification)
by the Representative of a copy of the Notice, disputing whether the
Indemnification Claim is indemnifiable under the Purchase Agreement, Buyer and
the Representative shall attempt to resolve such dispute by voluntary settlement
as provided in Section 2(c). If no Counter Notice with respect to
an Indemnification Claim is received by the Escrow Agent from the
Representative within such 30-day period, the Indemnification Claim shall be
deemed to be an Established Claim (as hereinafter defined) for purposes of this
Agreement.


 


(c)                                  If the Representative delivers a Counter
Notice to the Escrow Agent, Buyer and the Representative shall, during the
period of 60 days following the delivery of such Counter Notice or such greater
period of time as the parties may agree to in writing (with a copy to the
Escrow Agent), attempt to resolve the dispute with respect to which the Counter
Notice was given.  If Buyer and the
Representative shall reach a settlement with respect to any such dispute, they
shall jointly deliver written notice of such settlement to the Escrow Agent
specifying the terms thereof.  If Buyer
and the Representative shall be unable to reach a settlement with respect to a
dispute, such dispute shall be resolved by arbitration pursuant to Section 2(d).


 


(d)                                 If Buyer and the Representative cannot
resolve a dispute prior to expiration of the 60-day period referred to in Section 2(c) (or
such longer period as the parties may have agreed to in writing), then such
dispute shall be submitted (and either party may submit such dispute) for
arbitration before the Judicial Arbitration and Medication Service (“JAMS”)
in Harris County, Texas, pursuant to Section 9.15 of the Purchase Agreement.


 


(e)                                  As used in this Agreement, “Established
Claim” means any (i) Indemnification Claim deemed established pursuant
to the last sentence of Section 2(b), (ii) Indemnification
Claim resolved in favor of Buyer by settlement pursuant to Section 2(c),
resulting in a dollar award to Buyer, (iii) Indemnification Claim
established by the decision of an arbitrator pursuant to Section 2(d),
resulting in a dollar award to Buyer, (iv) Third Party Claim for which
Buyer is entitled to indemnity from Sellers that has been sustained by a final
determination (after exhaustion of any appeals) of a court of competent
jurisdiction, or (v) Third Party Claim for which Buyer is entitled to
indemnity from Sellers that Buyer and the 


 


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Representative
have jointly notified the Escrow Agent has been settled in accordance with the
provisions of the Purchase Agreement.


 


(f)                                    (i)                                     Promptly after an Indemnification Claim becomes an
Established Claim, Buyer and the Representative shall jointly deliver a notice
to the Escrow Agent (a “Joint Notice”) directing the Escrow Agent to pay
to Buyer, and the Escrow Agent promptly shall pay to Buyer, an amount equal to
the aggregate dollar amount of the Established Claim (or, if at such time there
remains in the Escrow Fund less than the full amount so payable, the full
amount remaining in the Escrow Fund).


 


(ii)                                  Payment of an Established Claim shall be
made from Escrow Shares pro rata from the account maintained on behalf of each
Owner liable for such claim.  For
purposes of each payment, such shares shall be valued at the “Fair Market Value”
(as defined below).  However, in no event
shall the Escrow Agent be required to calculate Fair Market Value or make a
determination of the number of shares to be delivered to Buyer in satisfaction
of any Established Claim; rather, such calculation shall be included in and
made part of the Joint Notice.  The
Escrow Agent shall transfer to Buyer out of the Escrow Fund that number of
shares of Preferred Stock necessary to satisfy each Established Claim, as set
out in the Joint Notice.  Any dispute between
Buyer and the Representative concerning the calculation of Fair Market Value or
the number of shares necessary to satisfy any Established Claim, or any other
dispute regarding a Joint Notice, shall be resolved between Buyer and the
Representative in accordance with the procedures specified in Section 2(d),
and shall not involve the Escrow Agent. 
Each transfer of shares in satisfaction of an Established Claim shall be
made by the Escrow Agent delivering to Buyer one or more stock certificates
held in each Owner’s account evidencing not less than such Owner’s pro rata
portion of the aggregate number of shares specified in the Joint Notice,
together with assignments separate from certificate executed in blank by such
Owner and completed by the Escrow Agent in accordance with instructions
included in the Joint Notice.  Upon
receipt of the stock certificates and assignments, Buyer shall deliver to the
Escrow Agent new certificates representing the number of shares owned by each
Owner after such payment.  The parties
hereto (other than the Escrow Agent) agree that the foregoing right to make
payments of Established Claims in shares of Preferred Stock may be made
notwithstanding any other agreements restricting or limiting the ability of any
Owner to sell any shares of Buyer stock or otherwise.  Buyer and the Representative shall be
required to exercise utmost good faith in all matters relating to the
preparation and delivery of each Joint Notice. 
As used herein, “Fair Market Value” means the average reported
closing price for Buyer Common Stock for the twenty (20) trading days ending on
the last trading day prior to (x) the day the Established Claim is paid
with respect to Indemnification Claims paid on or before the Escrow Termination
Date, or (y) the Escrow Termination Date with respect to shares
constituting the Pending Claims Reserve (as hereinafter defined) on the Escrow Termination
Date.


 


(iii)                               Notwithstanding anything herein to the contrary, at
such time as an Indemnification Claim has become an Established Claim, the
Representative shall have the right to substitute for the Escrow Shares that
otherwise would be paid in satisfaction of such claim (the “Claim Shares”),
cash in an amount equal to the Fair Market Value of the Claim Shares (“Substituted
Cash”).  In such event (i) the
Joint Notice shall include a statement describing the substitution of
Substituted Cash for the Claim Shares, and (ii) substantially
contemporaneously with the delivery of such Joint Notice, the Representative
shall cause currently available funds to 


 


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be delivered to the Escrow Agent in an amount equal to the Substituted
Cash.  Upon receipt of such Joint Notice
and Substituted Cash, the Escrow Agent shall (y) in payment of the Established
Claim described in the Joint Notice, deliver the Substituted Cash to Buyer in
lieu of the Claim Shares, and (z) cause the Claim Shares to be returned to
the Representative.


 


3.                                       Release of Escrow Fund.


 


(a)                                  On the first Business Day after the Escrow
Termination Date, upon receipt of a Joint Notice, the Escrow Agent shall
distribute and deliver to each Owner certificates representing shares of Preferred
Stock then in such Owner’s account in the Escrow Fund equal to the number of
shares placed in such Owner’s account less that number of shares in such Owner’s
account equal to the sum of (i) the number of shares applied in
satisfaction of Indemnification Claims made prior to that date and (ii) the
number of shares in the Pending Claims Reserve allocated to such Owner’s
account, as provided in the following sentence. 
If, at such time, there are any Indemnification Claims with respect to
which Notices have been received but which have not been resolved pursuant to Section 2
or in respect of which the Escrow Agent has not been notified of, and received
a copy of, a final determination (after exhaustion of any appeals) by a court
of competent jurisdiction, as the case may be (in either case, “Pending
Claims”), and which, if resolved or finally determined in favor of Buyer,
would result in a payment to Buyer, the Escrow Agent shall retain in the
Pending Claims Reserve that number of shares of Preferred Stock having a Fair
Market Value equal to One Hundred Ten percent (110%) of the dollar amount for
which indemnification is sought in such Indemnification Claim, allocated pro
rata from the account maintained on behalf of each Owner liable for such claim.  Buyer shall certify to the Escrow Agent the
Fair Market Value to be used in calculating the Pending Claims Reserve and the
number of shares of Preferred Stock to be retained therefor.  Thereafter, if any Pending Claim becomes an
Established Claim, Buyer and the Representative shall deliver to the Escrow
Agent a Joint Notice directing the Escrow Agent to deliver to Buyer the number
of shares in the Pending Claims Reserve in respect thereof determined in
accordance with Section 2(f) and to deliver to each Owner the
remaining shares in the Pending Claims Reserve allocated to such Pending Claim,
all as specified in a Joint Notice. If any Pending Claim is resolved against Buyer,
Buyer and the Representative shall deliver to the Escrow Agent a Joint Notice
directing the Escrow Agent to pay to each Owner its pro rata portion of the
number of shares allocated to such Pending Claim in the Pending Claims Reserve.


 


(b)                                 As used herein, the “Pending Claims
Reserve” shall mean, at the time any such determination is made, that
number of shares of Preferred Stock in the Escrow Fund having a Fair Market
Value equal to the sum of the aggregate dollar amounts claimed to be due with
respect to all Pending Claims (as shown in the Notices of such Claims).


 


4.                                       Cooperation.  The
Escrow Agent, Buyer and the Representative shall cooperate in all respects with
one another in the calculation of any amounts determined to be payable to Buyer
and the Owners in accordance with this Agreement and in implementing the
procedures necessary to effect such payments.


 


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5.                                       Escrow Agent.


 


(a)                                  The Escrow Agent undertakes to perform
only such duties as are expressly set forth herein.  It is understood that the Escrow Agent is not
a trustee or fiduciary and is acting hereunder merely in a ministerial
capacity.


 


(b)                                 The Escrow Agent shall not be liable for
any action taken or omitted by it in good faith and in the exercise of its own
best judgment, and may rely conclusively and shall be protected in acting upon
any order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons.  The Escrow Agent shall not be bound by any
notice or demand, or any waiver, modification, termination or rescission of
this Agreement unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the
Escrow Agent are affected, unless it shall have given its prior written consent
thereto.


 


(c)                                  The Escrow Agent’s sole responsibility
upon receipt of any notice requiring any payment to Buyer pursuant to the terms
of this Agreement or, if such notice is disputed by Buyer or the
Representative, the settlement with respect to any such dispute, whether by
virtue of joint resolution, arbitration or determination of a court of
competent jurisdiction, is to pay to Buyer the amount specified in such notice
or settlement value, and the Escrow Agent shall have no duty to determine the
validity, authenticity or enforceability of any specification or certification
made in such notice.


 


(d)                                 The Escrow Agent shall not be liable for
any action taken by it in good faith and believed by it to be authorized or
within the rights or powers conferred upon it by this Agreement, and may
consult with counsel of its own choice and shall have full and complete
authorization and indemnification under Section 5(f) for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel.


 


(e)                                  The Escrow Agent may resign at any time
and be discharged from its duties as escrow agent hereunder by its giving the
other parties hereto written notice and such resignation shall become effective
as hereinafter provided.  Such
resignation shall become effective at such time that the Escrow Agent shall
turn over the Escrow Fund to a successor escrow agent appointed jointly by Buyer
and the Representative.  If no new escrow
agent is so appointed within the 60 day period following the giving of such
notice of resignation, the Escrow Agent may deposit the Escrow Fund with any
court located in Houston, Texas, it reasonably deems appropriate.


 


(f)                                    The Escrow Agent shall be indemnified and
held harmless by Buyer from and against any expenses, including counsel fees
and disbursements, or loss suffered by the Escrow Agent in connection with any
action, suit or other proceeding involving any claim which in any way, directly
or indirectly, arises out of or relates to this Agreement, the services of the
Escrow Agent hereunder, or the Escrow Fund held by it hereunder, other than
expenses or losses arising from the gross negligence or willful misconduct of
the Escrow Agent.  Promptly after the 


 


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receipt by the
Escrow Agent of notice of any demand or claim or the commencement of any
action, suit or proceeding, the Escrow Agent shall notify the other parties
hereto in writing.  In the event of the
receipt of such notice, the Escrow Agent, in its sole discretion, may commence
an action in the nature of interpleader in the United States District Court in Harris
County, Texas.


 


(g)                                 The Escrow Agent shall be entitled to
reasonable compensation from Buyer for all services rendered by it
hereunder.  The Escrow Agent shall also
be entitled to reimbursement from Buyer for all expenses paid or incurred by it
in the administration of its duties hereunder including, but not limited to,
all counsel, advisors’ and agents’ fees and disbursements and all taxes or
other governmental charges.


 


(h)                                 From time to time on and after the date
hereof, Buyer and the Representative shall deliver or cause to be delivered to
the Escrow Agent such further documents and instruments and shall do or cause
to be done such further acts as the Escrow Agent shall reasonably request to
carry out more effectively the provisions and purposes of this Agreement, to
evidence compliance herewith or to assure itself that it is protected in acting
hereunder.


 


(i)                                     Notwithstanding anything herein to the
contrary, the Escrow Agent shall not be relieved from liability hereunder for
its own gross negligence or its own willful misconduct.


 


6.                                       No Implied Duties.  This
Agreement expressly sets forth all the duties of the Escrow Agent with respect
to any and all matters pertinent hereto. No implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The Escrow Agent shall
not be bound by the provisions of any agreement among the parties hereto except
this Agreement and shall have no duty to inquire into the terms and conditions
of any agreement made or entered into in connection with this Agreement,
including, without limitation, the Purchase Agreement.


 


7.                                       Successors and Assigns.  This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives, shall be
governed by and construed in accordance with the law of Delaware applicable to
contracts made and to be performed therein. 
This Agreement cannot be changed or terminated except by a writing
signed by Buyer, the Representative and the Escrow Agent.


 


8.                                       Consent to Jurisdiction.  Buyer
and the Representative each hereby consents to the exclusive jurisdiction of
the federal and state courts sitting in Harris County, Texas, with respect to
any claim or controversy arising out of this Agreement. Service of process in
any action or proceeding brought against Buyer or the Representative in respect
of any such claim or controversy may be made upon it by registered mail,
postage prepaid, return receipt requested, at the address specified in Section 9,
with copies delivered by nationally recognized overnight carrier to Kean,
Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., P.O. Box
3513 (70821), Suite 1800, One American Place, Baton Rouge, LA  70803, Attention:  G. Blane Clark, Jr., Esq., and to
Rutan & Tucker, 611 Anton Boulevard, Suite 1400, Costa Mesa, CA
92626-1931, Attention:  George Wall, Esq.


 


9.                                       Notices.  All
notices and other communications under this Agreement shall be in writing and
shall be deemed given if given by hand or delivered by nationally recognized 


 


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overnight carrier, or if given by telecopier and confirmed by mail
(registered or certified mail, postage prepaid, return receipt requested), to
the respective parties as follows:


 


A.                                   If to Buyer, to it at:


 


Primoris Services Corporation

26000 Commercentre Drive

Lake Forest, CA  92630

Attention:  General Counsel

Facsimile:  949-595-5544


 


with a copy to:


 


Rutan & Tucker

611 Anton Boulevard, Suite 1400

Costa Mesa, CA 92626-5100

Attention:  George Wall, Esq.

Facsimile:  714-546-9035


 


B.                                     If to the Representative, to him at:


 


Michael D. Killgore

17653 Crossing Boulevard

Baton Rouge, LA  70810

Facsimile:  225-293-1778


 


with a copy to:


 


Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., 

P.O. Box 3513 (70821), 

Suite 1800, One American Place

Baton Rouge, LA  70803

Attention:  G. Blane Clark, Jr., Esq.

Facsimile:  225-215-4014


 


C.                                     If to the Escrow Agent, to it at:


 


Continental Stock
Transfer & Trust Company

2 Broadway

New York, New York 10004

Attention: Steven G. Nelson

Facsimile: 212-509-5150


 


or to
such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.


 


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10.                                 Miscellaneous.


 


(a)                                  If this Agreement requires a party to
deliver any notice or other document, and such party refuses to do so, the
matter shall be submitted to arbitration pursuant to Section 2(d).


 


(b)                                 All notices delivered to the Escrow Agent
shall refer to the provision of this Agreement under which such notice is being
delivered and, if applicable, shall clearly specify the aggregate dollar amount
due and payable to Buyer.


 


(c)                                  This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original
instrument and all of which together shall constitute a single agreement.


 


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IN WITNESS WHEREOF, each of the parties hereto has
duly executed this Agreement on the date first above written.


 


 


	
  BUYER:

  	
  PRIMORIS SERVICES CORPORATION,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/BRIAN PRATT

  
	
   

  	
  Brian Pratt,
  Chief Executive Officer, President and Chairman of the Board

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  REPRESENTATIVE:

  	
  /s/MICHAEL D. KILLGORE

  
	
   

  	
  Michael D.
  Killgore

  
	
   

  	
   

  
	
   

  	
   

  
	
  ESCROW AGENT:

  	
  Continental
  Stock Transfer & Trust Company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ALEXANDRA
  ALBRECHT

  
	
   

  	
  Name:

  	
  Alexandra
  Albrecht

  
	
   

  	
  Title:

  	
  Vice President

  



 


 


[Signature
Page to Escrow Agreement]