TERMINATION AGREEMENT
Exhibit
10.10
THIS
TERMINATION AGREEMENT (the “Agreement”)
is
made as of February 19, 2008 (the “Effective
Date”),
by
and among PRIMORIS CORPORATION, a Nevada corporation (the “Company”),
ARB,
INC., a California corporation and wholly owned subsidiary of the Company
(“Subsidiary”),
ARB
ECUADOR LTDA, an indirect subsidiary of the Company (“Ecuador”),
XXXXXX MORTEBOY, an individual (“Morteboy”),
and
RHAPSODY ACQUISITION CORP., a Delaware Corporation (“Rhapsody”).
RECITALS
A. Subsidiary
and Morteboy are parties to that certain Deferred Compensation Agreement
dated
June 2, 2000 (the “Deferred
Compensation Agreement”).
B. The
Company intends to merge (the “Merger”)
with
and into Rhapsody with Rhapsody as the surviving corporation pursuant to
that
certain Agreement and Plan of Merger by and among Rhapsody, the Company and
certain shareholders of the Company (the “Merger
Agreement”).
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
C. The
Company, Subsidiary, Ecuador, Morteboy and Rhapsody desire to, contingent
upon
consummation of the Merger, terminate the Deferred Compensation Agreement.
In
consideration of such termination, Rhapsody desires to issue to Morteboy
Seventy
Thousand Two Hundred (70,200) shares of common stock of Rhapsody (the
“Rhapsody
Shares”).
In
addition, at the Closing, Ecuador desires to pay to Morteboy Two Hundred
Ninety-Five Thousand Two Hundred Nineteen Dollars ($295,219) (the “Payment”).
AGREEMENT
NOW,
THEREFORE, the parties do hereby agree as follows:
1. Termination.
Effective upon consummation of the Merger, the parties hereto agree that
the
Deferred Compensation Agreement shall be terminated, by mutual agreement
and
without liability to Subsidiary or Morteboy, and shall have no further force
and
effect. In consideration of such termination, (i) Ecuador shall pay to
Morteboy the Payment in cash and (ii) Rhapsody shall issue to Morteboy the
Rhapsody Shares, of which Sixty-Four Thousand Nine Hundred Thirty-Five (64,935)
shall be issued at Closing, and Five Thousand Two Hundred Sixty-Five (5,265)
shall be Escrow Shares (as defined in Section 1.11 of the Merger Agreement).
Notwithstanding the issuance of the Rhapsody Shares, Morteboy shall be entitled
to his proportion share of the EBITDA Shares to be issued pursuant to Section
1.18 of the Merger Agreement.
2. Morteboy
Acknowledgement.
In
consideration of the Payment and issuance of the Rhapsody Shares, Morteboy
hereby acknowledges that (i) he is bound by the Merger Agreement, including
the Escrow Agreement, and (ii) he shall not be entitled to participate in
any cash distribution or tax-related distribution by the Company to its
stockholders in connection with the Merger; provided,
however,
that
Morteboy will be entitled to participate in payment of the EBITDA Shares
pursuant to the Merger Agreement.
3. Representations
and Warranties.
(a) Each
of
the parties hereto represents to the other parties hereto that it has the
full
power and authority to enter into, sign and deliver this Agreement and to
perform all of the obligations set forth herein.
(b) Each
of
the parties hereto represents to the other parties hereto that this Agreement
and all other documents, instruments and agreements executed by each of the
parties hereto in connection herewith have been validly executed and delivered
by such party and constitute such party’s valid and legally binding agreements,
enforceable against such party in accordance with their terms, except to
the
extent that enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforceability of creditors’ rights generally, or by general equitable
principles.
4. Miscellaneous.
(a) Survival
of Representations and Warranties.
All
representations, warranties and covenants under this Agreement shall survive
the
closing and delivery of this Agreement.
(b) Captions.
The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(c) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the Parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, between the Parties. No
representation, promise or inducement has been made by any Party that is
not
embodied in this Agreement or in the other documents and agreements delivered
in
accordance herewith, and no Party shall be bound by or be liable for any
alleged
representation, promise or inducement not so set forth.
(d) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, and it shall not be necessary in making proof of this
Agreement, to produce or account for more than one such
counterpart.
(e) Further
Assurances.
The
Parties agree that they will execute any additional documents which may be
necessary to carry out the terms and intentions of the Parties.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above indicated.
| THE COMPANY: | PRIMORIS CORPORATION | |
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
| Xxxxx Xxxxx, Chief Executive Officer | ||
| SUBSIDIARY: | ARB, INC. | |
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Xxxxx
Xxxxx, President and CEO
|
||
| ECUADOR: | ARB ECUADOR LTDA | |
| |
|
|
| By: | /s/ Xxxxxx Morteboy | |
| Name: | Xxxxxx Morteboy | |
| Its: | General Manager | |
| MORTEBOY: | /s/ Xxxxxx Morteboy | |
| XXXXXX MORTEBOY | ||
| RHAPSODY: |
a
Delaware corporation
|
|
| |
|
|
| By: | /s/ Xxxx Xxxxxxxxx | |
|
Xxxx
Xxxxxxxxx, Chairman, CEO and
President
|
||
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