PRIM 8-K
Primoris Services Corp (PRIM)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
(Exact name of Registrant as specified in its charter)
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(State or other jurisdiction |
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of incorporation) |
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(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including area code
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading symbol(s) | Name of each exchange on which registered |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On May 22, 2023, Primoris Services Corporation, a Delaware corporation (“Primoris, the “Company”) and John F. Moreno, Jr., reached a mutual agreement of employment separation, pursuant to which Mr. Moreno will no longer serve as Chief Operating Officer of Primoris effective as of May 22, 2023.
In connection with Mr. Moreno’s employment separation, the Company and Mr. Moreno entered into a mutual agreement of separation and general release dated May 25, 2023 (the “Separation Agreement”). The payments to be made under the Separation Agreement have been negotiated between the parties in connection with the mutual agreement of separation and are not equal to amounts that would have been paid for either: (1) a termination without cause or resignation with good reason; or (2) a termination for cause or resignation without good reason. Under the Separation Agreement, Mr. Moreno shall be paid $1,550,000, a portion of which shall be paid through the accelerated vesting of Restricted Stock Units (“RSUs”) previously awarded to Mr. Moreno in March 2023 under an RSU Agreement, with the balance payable in cash. All other RSUs and Performance Stock Units previously awarded to Mr. Moreno during the term of his employment that remain unvested as of May 22, 2023, shall be forfeited. The Separation Agreement requires payment to Mr. Moreno after full agreement execution and within three business days following the expiration of any statutory revocation period. The Separation Agreement releases Mr. Moreno from his non-compete obligations and contains other terms and post-employment obligations, including with respect to non-disparagement and non-solicitation.
The foregoing description of the Separation Agreement does not purport to be complete and is qualified in its entirety by the full text of the Separation Agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
The following exhibits are filed herewith:
Exhibit No. | Description | ||
10.1 | |||
104 | Cover Page Interactive Data File (formatted as Inline XBRL and included in Exhibit 101) | ||
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| PRIMORIS SERVICES CORPORATION |
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Dated: May 26, 2023 |
| By: | /s/ Kenneth M. Dodgen |
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| Kenneth M. Dodgen |
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| Executive Vice President, Chief Financial Officer |
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Exhibit 10.1
MUTUAL AGREEMENT OF SEPARATION AND GENERAL RELEASE
This Mutual Agreement of Separation and General Release (the “Agreement”) is entered into by and between Primoris Services Corporation (referred to throughout this Agreement as “Employer”) and John F. Moreno, Jr. (“Employee”). The term “Party” or “Parties” as used herein shall refer to Employer, Employee, or both, as may be appropriate.
This Agreement is made with reference to the following facts:
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In consideration for the Parties signing this Agreement, and complying with its terms and subject to the revocation language below, if any:
| (i) | Release Employee from the covenant not to compete in Section 12(a)(i) of the 2022 Employment Agreement; |
| (ii) | Allow Employee to retain his Employer issued cellular phone and iPad, so long as Employee changes his service provider to an Employee funded plan within one (1) week of the Separation Date; |
| (iii) | Pay the total gross sum of ONE MILLION FIVE HUNDRED AND FIFTY THOUSAND DOLLARS AND NO CENTS ($1,550,000) (the “Settlement Payment”), a portion of which shall be paid through the accelerated vesting of RSUs previously awarded to Employee in March 2023 under an RSU Agreement, with the balance payable in cash. The cash portion of the Settlement Payment will be made as follows: In connection with the Parties Controversy, Employer will deliver a check to Moreno’s attorney made payable to “John F. Moreno, Jr.” in the amount of One Million Four Thousand One Hundred and Eighty-Four Dollars and Seventy-Four Cents ($1,004,184.74). The RSUs portion of the Settlement Payment will be issued by Continental Stock Transfer & Trust Company. The RSUs issued were 19,819 shares at a value of $545,815.26 calculated pursuant to the share price at market close on the Separation Date. Employee understands, acknowledges, and agrees that the vesting of the shares under the RSU Agreement are accelerated, and all other shares issued under other, or previous RSU or PSU Agreements are forfeited; and |
| (iv) | Issue to Employee any IRS Form 1099 required in connection with this Settlement Payment and Employee will be exclusively responsible for any taxes due on such amounts. |
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Employee understands and agrees that Employee would not receive the monies and/or benefits specified in Paragraph 2(a) above, except for Employee’s timely execution of this Agreement and the fulfillment of the promises contained herein.
| (1) | counsel for Employer receives a copy of the Agreement signed by Employee; |
| (2) | counsel for Employer receives an executed W-9 Form from Employee’s Counsel; |
| (3) | counsel for Employer receives an executed W-9 Form from Employee; and |
| (4) | the revocation period following the signing of this Agreement has expired. |
| ● | Title VII of the Civil Rights Act of 1964; |
| ● | Sections 1981 through 1988 of Title 42 of the United States Code; |
| ● | The Employee Retirement Income Security Act of 1974 (“ERISA”); |
| ● | The Internal Revenue Code of 1986; |
| ● | The Immigration Reform and Control Act; |
| ● | The Americans with Disabilities Act of 1990; |
| ● | The Worker Adjustment and Retraining Notification Act; |
| ● | The Fair Credit Reporting Act; |
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| ● | The Family and Medical Leave Act; |
| ● | The Equal Pay Act; |
| ● | The Genetic Information Nondiscrimination Act of 2008; |
| ● | The Age Discrimination in Employment Act of 1967 (“ADEA”); |
| ● | The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”); |
| ● | Families First Coronavirus Response Act; |
| ● | Texas Commission on Human Rights Act; |
| ● | Texas Health and Safety Code; |
| ● | Texas Payday Act; |
| ● | Texas Labor Code; |
| ● | Texas Civil Practices and Remedies Code; |
| ● | any other federal, state or local law, rule, regulation, or ordinance; |
| ● | any public policy, contract, tort, or common law; or |
| ● | any basis for recovering costs, fees, or other expenses including attorneys' fees incurred in these matters. |
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The Parties further agree that a fully executed version of this Agreement including any attachments, may be filed in any court of competent jurisdiction if such filing is required to affect the intent of the Parties, provided the Party filing this Agreement undertakes reasonable measures to maintain its confidentiality.
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Except as provided otherwise in this Agreement or by law, Employee affirms that Employee has returned all of Employer’s property, documents, and/or any confidential information in Employee’s possession or control.
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Employee also affirms that Employee is in possession of all of Employee’s property that Employee had at Employer’s premises and that Employer is not in possession of any of Employee’s property.
Employee agrees to refrain from making statements that are, directly or indirectly maliciously disparaging or defamatory about Employer Releasees, or Employer Releasees’ customers, suppliers, or vendors, including but not limited to communications on social media websites such as Facebook, Twitter, LinkedIn, or Glassdoor on blogs, by text or email or other electronic means. This provision does not prohibit Employee from making truthful statements about the terms or conditions of Employee’s employment, or from exercising Employee’s rights under the National Labor Relations Act, government whistleblower programs, or whistleblowing statutes or regulations.
Employee will direct all requests for references to Employer’s Human Resources Department, which shall provide Employee’s dates of employment and job title.
A failure by Employee, or anyone seeking a reference at Employee’s direction or request, to direct requests for reference pursuant to this paragraph to Employer’s Human Resources Department as referenced above shall constitute a waiver by Employee of the requirement that Employer fulfill its obligations under this paragraph. Employer’s Human Resources Department shall only provide Employee’s dates of employment and job title.
Employee affirms that as of the date Employee signs this Agreement, Employee is not Medicare eligible (i.e., is not 65 years of age or older; is not suffering from end stage renal failure; has not received Social Security Disability Insurance benefits for 24 months or longer, etc.). Nonetheless, if the Centers for Medicare & Medicaid Services (CMS) (this term includes any related agency representing Medicare’s interests, as well as any insurance carrier providing benefits under Medicare Part C or Part D) determines that Medicare has an interest in the payment to Employee under this Agreement, Employee agrees to (i) indemnify, defend and hold Employer Releasees harmless from any action by CMS relating to medical expenses of Employee, (ii) reasonably cooperate with Employer Releasees upon request with respect to any information needed to satisfy the reporting requirements under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007, if applicable, and any claim that the CMS may make and for which Employee is required to indemnify Employer Releasees under this paragraph, and (iii) waive any and all future actions against Releasees for any private cause of action for damages pursuant to 42 U.S.C. § 1395y(b)(3)(A).
This Agreement shall be governed and conformed in accordance with the laws of Texas without regard to its conflict of laws provision.
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The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement shall be deemed or construed at any time for any purpose as an admission by Employer Releasees or Employee Releasees of wrongdoing or evidence of any liability or unlawful conduct of any kind.
This Agreement may not be modified, altered or changed except in writing and signed by both Parties wherein specific reference is made to this Agreement.
This Agreement sets forth the entire agreement between the Parties hereto, and fully supersedes any prior agreements or understandings between the Parties, except for any arbitration, intellectual property, restrictive covenant (other than the noncompete provision in Section 12(a)(i) of the 2022 Employment Agreement released herein), non-solicitation, nondisclosure, or confidentiality agreements between Employer and Employee, which shall remain in full force and effect according to their terms. The Parties acknowledge that the Parties hereto have carefully reviewed this Agreement, that they fully understand its terms, that the sought and obtained independent legal advice with respect to the negotiation and preparation of this Agreement, that this Agreement has been negotiated and prepared by the joint efforts of the respective attorneys for each of the Parties, and that Parties have relied wholly upon their own judgment and knowledge and the advice of their respective attorneys. The Parties also acknowledge the contested and adversarial nature of the Controversy and stipulate in executing this Agreement they have not relied on any representations, promises, or agreements of any kind made by any other Party, its/his agents, representatives, or attorneys with regard to (1) facts underlying the Controversy, (2) the subject matter or effect of this Agreement, or (3) any other facts or issues which might be deemed material to the decision to enter into this Agreement, except for those set forth in this Agreement.
This Agreement may be signed in counterparts, each of which shall be deemed an original, but all of which, taken together shall constitute the same instrument. A signature made on a faxed or electronically mailed copy of the Agreement or a signature transmitted by facsimile or electronic mail, or which is made electronically, will have the same effect as the original signature.
This Agreement was the result of negotiations between the Parties and their respective counsel. In the event of vagueness, ambiguity, or uncertainty, this Agreement shall not be construed against the Party preparing it but shall be construed as if both Parties prepared it jointly.
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All Releasees are third party beneficiaries of this Agreement for purposes of the protections offered by this Agreement, and they shall be entitled to enforce the provisions of this Agreement applicable to any such Releasee as against Employee or any party acting on Employee’s behalf.
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 the 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 statue, common law or public policy, including any state or federal statutory claims, shall be submitted to final and binding arbitration in Dallas County, Texas, in accordance with the JAMS Employment Arbitration Rules and Procedures, before a single neutral arbitrator elected 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”). The Parties further agree the final arbitration hearing shall commence within ninety (90) days after the arbitrator is appointed by JAMS or the AAA. Notwithstanding the provision in this Agreement with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. Secs., 1-16). 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. Should any provision of this Agreement be declared illegal or unenforceable by the Arbitrator and cannot be modified to be enforceable, excluding the general release language, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect. Should the Arbitrator declare or find the general release in this Agreement to be unenforceable for any reason, Employee agrees to promptly sign a replacement in a form provided by Employer. Notwithstanding the foregoing, 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 provide 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 a 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. Subject to the provisions of Section 20, the Parties shall each pay their own arbitration expenses, deposition, witness, expert and attorneys’ fees and other expenses as and to the same extent as if the matter were being heard in court.
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 reasonable attorneys’ fees and
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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 form the date of the breach at the maximum rate of interest allowed by law. For the purposes of this Section 21: (a) attorneys’ fees shall include fees incurred in the following: (i) post judgment 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.
Section numbers and section titles have been set forth herein for convenience only, and they shall not be construed to limit or extend the meaning or interpretation of any party of this Agreement.
EMPLOYEE IS ADVISED THAT EMPLOYEE HAS UP TO TWENTY-ONE (21) CALENDAR DAYS TO CONSIDER THIS AGREEMENT. EMPLOYEE ALSO IS ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EMPLOYEE’S SIGNING OF THIS AGREEMENT AND HAS IN FACT OBTAINED LEGAL REPRESENTATION ABOUT THE DECISION TO ENTER INTO THIS AGREEMENT BY EMPLOYEE’S COUNSEL KEITH CLOUSE, AND SO DOING, ENTERS INTO THIS AGREEMENT.
EMPLOYEE MAY REVOKE THIS AGREEMENT FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FOLLOWING THE DAY ON WHICH EMPLOYEE SIGNS OR ENTERS INTO THIS AGREEMENT AND THE AGREEMENT IS NOT ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED. ANY REVOCATION WITHIN THIS PERIOD MUST BE SUBMITTED, IN WRITING, TO JOHN PERISICH AND STATE, “I HEREBY REVOKE MY ACCEPTANCE OF OUR AGREEMENT AND GENERAL RELEASE.” THE REVOCATION MUST BE RECEIVED BY JOHN PERISICH OR HIS/HER DESIGNEE WITHIN SEVEN (7) CALENDAR DAYS AFTER EMPLOYEE SIGNS OR ENTERS INTO THIS AGREEMENT.
EMPLOYEE AGREES THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS AGREEMENT, DO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL CONSIDERATION PERIOD.
EMPLOYEE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS EMPLOYEE HAS OR MIGHT HAVE AGAINST RELEASEES.
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The Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:
JOHN F. MORENO, JR. | | PRIMORIS SERVICES CORPORATION |
By: /s/ John F. Moreno, Jr. | | By: /s/ John Perisich |
Print Name: John F. Moreno, Jr. | | Print Name: John Perisich |
| | Title: Executive Vice President and Chief Legal Officer |
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Date: May 25, 2023 | | Date: May 25, 2023 |
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