PURCHASE TRADING PLAN AGREEMENT
Exhibit 10.1
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 March 26,
2009 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.
(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 May 15, 2009; 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, that with respect to any
termination by the Company pursuant to this Section 4(c) at the time of such
termination, the Company was not in possession of or aware of Material Nonpublic
Information and 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.
(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.
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PRIMORIS
SERVICES CORPORATION
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By:
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/s/ Xxxxx X. Xxxxxxxx | ||
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Name:
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Xxxxx
X. Xxxxxxxx
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Title:
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Executive
Vice President, Chief Financial
Officer
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CJS
SECURITIES, INC.
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By:
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/s/ Xxxxxxx Xxxxxxxx | ||
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Name:
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Xxxxxxx Xxxxxxxx | ||
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Title:
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Managing Director | ||
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