Exhibit 10.1


 


PURCHASE TRADING PLAN AGREEMENT


 


WHEREAS, Primoris Services Corporation, a Delaware corporation (the “Company”),
desires to purchase, from time to time, certain of its common stock purchase
warrants, each of which entitles the holder to purchase one share of the
Company’s common stock at a price of $5.00 per share and is exercisable at any
time on or prior to October 2, 2010, unless earlier redeemed (the “Warrants”).


 


WHEREAS, the Company desires to enter into this Agreement for the
purpose of establishing a trading plan to make purchases of Warrants in
compliance with all applicable laws, including, but not limited to, Section 10(b) of
the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and
regulations promulgated thereunder, including, but not limited to, Rule 10b5-1.  References herein to this “Agreement” refer
to this agreement and specifically include the trading plan described herein.


 


NOW, IT IS AGREED, as of this September 7th, 2010 by the
Company and CJS Securities, Inc. (the “Broker”) as follows:


 


Section 1.               Terms of Purchase.


 


(a)           The Company desires that the Broker
effect purchases of the Warrants on its behalf in the open market in accordance
with trading requirements adopted by the Company and to be delivered in writing
to the Broker by separate letter (the “Initial Trading Instructions”).  The trading requirements adopted by the
Company are referred to herein as the “Program Period.”


 


(b)           In furtherance of Section 1(a) hereof,
the Company directs the Broker to purchase, in customary brokerage
transactions, the Warrants, for the Company’s account or accounts, in the
Broker’s sole discretion as to execution and timing, subject to the condition
that as of the time of any purchase of Warrants, any individual employee of the
Broker making the Broker’s investment decisions on behalf of the Company shall
not be in possession of or aware of material nonpublic information relating to
the Company’s business, operations or prospects or the value of the Common
Stock (“Material Nonpublic Information”).


 


(c)           Notwithstanding the foregoing, the
Broker shall not purchase Warrants at any time when the Broker, in its sole
discretion, shall have determined that such purchase would violate applicable
law, including, without limitation, Section 10(b) of the 1934 Act and
the rules and regulations promulgated thereunder and Section 5 of the
Securities Act of 1933, as amended (the “1933 Act”).


 


(d)           The Company agrees that, during the
Program Period, it shall not exercise any subsequent influence over how, when
or whether to effect purchases of the Warrants, except that the Company may
amend this Agreement as set forth in Section 3 hereof.  Each of the Company and the Broker agrees
that it will not discuss with the other the Company’s business, 


 

















 


operations or prospects
or any other information likely to be related to the value of the Warrants or
likely to influence a decision to purchase the Warrants.  Notwithstanding the preceding sentence, with
the approval of counsel to the Broker, the Company may communicate with Broker
personnel who are not responsible for, and have no ability to influence, the
execution of the trading plan set forth in this Agreement.


 


Section 2.               Representations, Warranties and
Covenants.


 


(a)           The Company represents, warrants and
covenants to the Broker as follows:


 


(i)            The Company is not, as of the date
hereof, aware of or in possession of Material Nonpublic Information.


 


(ii)           The Company will at all times, in
connection with the performance of this Agreement, comply with all applicable
laws, including, without limitation, Section 16 of the 1934 Act and the rules and
regulations promulgated thereunder.


 


(iii)          The Company agrees to provide such
additional information and to execute such additional documents or instruments
as may be reasonably requested by the Broker in connection with the performance
of this Agreement and to confirm compliance with applicable law.


 


(iv)          The Company’s Board has approved this
Agreement.


 


(v)           This Agreement constitutes the legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws affecting the enforceability of creditors’ rights and
general principles of equity, and as rights to indemnity hereunder may be
limited by applicable law.


 


(b)           The Broker represents, warrants and
covenants to the Company as follows:


 


(i)            The Broker has implemented
reasonable policies and procedures, taking into consideration the nature of the
Broker’s business, to ensure that individuals making investment decisions will
not violate the laws prohibiting trading on the basis of Material Nonpublic
Information.  These policies and
procedures include those that restrict any purchase or sale, or causing any
purchase or sale, of any security as to which the Broker has Material Nonpublic
Information, as well as those that prevent such individuals from becoming aware
of or in possession of such Material Nonpublic Information.  The Broker agrees to comply with Rule 10b-18
of the 1934 Act, with respect to all repurchases of the Warrants pursuant to
this Agreement.


 


(ii)           In connection with all purchases of
Warrants, the Broker shall deliver to the Company by facsimile or electronic
mail, no later than the close of business on the date such transaction is
effected, all information relating to each Warrant purchase.


 


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(iii)          This Agreement constitutes the legal,
valid and binding obligation of the Broker enforceable against the Broker in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws affecting the enforceability of creditors’ rights and
general principles of equity, and as rights to indemnity hereunder may be
limited by applicable law.


 


Section 3.               Amendments.  This Agreement (including the Initial
Trading Instructions) may not be amended by the parties hereto, except as
follows: The parties hereto may amend the provisions of this Agreement
(including the Initial Trading Instructions), provided that at the time of such
amendment, the Company was not in possession of or aware of Material Nonpublic
Information.  Any modification by the
Company will be made in accordance with applicable law and in good faith and
not as part of a scheme to evade the prohibitions of Rule 10b5-1.


 


Section 4.               Termination.  This Agreement shall terminate
upon the earlier to occur of the following:


 


(a)           The close of business on October 2,
2010; or


 


(b)           The Broker purchases the maximum
number of Warrants allowable under the Initial Trading Instructions, as may be
amended as provided in Section 3 hereof; or


 


(c)           The Agreement is terminated by either
party immediately upon receipt of written notice to the other party; provided,
however, such termination was made in good faith and not as part of a scheme to
evade the prohibitions of Rule 10b5-1; or


 


(d)           Any purchase effected pursuant to
this Agreement that violates (or in the opinion of counsel to the Company or
the Broker is likely to violate) Section 16 of the 1934 Act, any other
provision of the Federal securities laws or regulations adopted by the U.S.
Securities and Exchange Commission thereunder, or any other applicable Federal
or State law or regulation; or


 


(e)           The Company materially breaches its
obligations under this Agreement; or


 


(f)            The Company enters into a contract
that prevents or materially restricts purchases by the Company under this
Agreement.


 


Section 5.               Indemnification and Limitation on
Liability; No Tax, Accounting or Legal Advice.


 


(a)           The Company agrees to indemnify and
hold harmless the Broker (and its directors, officers, employees and
affiliates) from and against all claims, liabilities, losses, damages and
expenses (including reasonable attorneys’ fees and costs) arising out of or
attributable to:  (i) any material
breach by the Company of this Agreement (including the Company’s
representations and warranties), (ii) any violation by the Company of
applicable laws or regulations and (iii) any action taken by the Broker in
good faith and without negligence pursuant to this Agreement.  This indemnification will survive the
termination of this Agreement.


 


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(b)           Notwithstanding any other provision
herein, the Broker will not be liable to the Company for:  (i) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, including but not limited to lost profits, lost savings, and loss of use
of facility or equipment, regardless of whether arising from breach of
contract, warranty, tort, strict liability or otherwise, and even if advised of
the possibility of such losses or damages or if such losses or damages could
have been reasonably foreseen, or (ii) any failure to perform or for any
delay in performance that results from a cause or circumstance that is beyond
its reasonable control, including but not limited to failure of electronic or
mechanical equipment, strikes, failure of common carrier or utility systems,
severe weather, market disruptions or other causes commonly known as “acts of
God.”


 


(c)           The Company acknowledges and agrees
that the Broker has not provided the Company with any tax, accounting or legal
advice with respect to this Agreement.


 


Section 6.               Governing Law. This Agreement (including the Initial Trading Instructions) will be
governed by, and construed in accordance with, the laws of the State of New
York,  without regard to such State’s
conflict of laws rules.


 


Section 7.               Entire Agreement.  This Agreement (including the
Initial Trading Instructions) constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes any previous
or contemporaneous agreements, understandings, proposals or promises with
respect thereto, whether written or oral.


 


Section 8.               Assignment.  This Agreement and each party’s
rights and obligations hereunder may not be assigned or delegated without the
written permission of the other party and shall inure to the benefit of each
party’s successors and permitted assigns, whether by merger, consolidation or
otherwise.


 


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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.


 


	
   

  	
  PRIMORIS
  SERVICES CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter J. Moerbeek

  
	
   

  	
  Name:

  	
  Peter
  J. Moerbeek

  
	
   

  	
  Title:

  	
  Executive
  Vice President, Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CJS
  SECURITIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Charles Strauzer

  
	
   

  	
  Name:

  	
  Charles
  Strauzer

  
	
   

  	
  Title:

  	
  Senior
  Managing Director

  



 


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