1
Exhibit 10.8
August 28, 2000
Xx. Xxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
RETIREMENT AND CONSULTING AGREEMENT
Dear Xx. Xxxxxxx:
This letter reflects our mutual agreement (the "AGREEMENT")
concerning your retirement from employment with Dycom Industries, Inc., which is
defined to include any and all of its subsidiaries or affiliates (collectively,
the "COMPANY") and your retention by the Company following such retirement from
employment as a consultant in accordance with the terms and conditions set forth
below. This offer will remain open for your consideration for up to twenty-one
days. If the Company does not receive a copy of this Agreement executed by you
by the close of business (Eastern Daylight Time) on September 18, this offer
will lapse. If you do choose to accept this offer, you will have a seven-day
period within which to withdraw such acceptance.
If you do not rescind the Agreement in accordance with Section
8(b) herein, the eighth day after the date of your acceptance will be the
"EFFECTIVE DATE" of this Agreement.
1. RETIREMENT FROM EMPLOYMENT.
(a) Effective as of August 28, 2000 (the "RETIREMENT DATE"),
you hereby resign (i) as Executive Chairman of the Company and (ii) from all
other positions held by you as an officer or an employee of the Company. As of
the Retirement Date, your employment under the employment agreement between you
and Dycom Industries, Inc., dated December 14, 1998, (the "EMPLOYMENT
AGREEMENT") shall terminate and the Employment Agreement shall become null and
void and of no further force or effect. Notwithstanding the forgoing, you and
the Company understand and agree that for a period of up to thirty days after
the Retirement Date, you shall personally meet with certain employees, customers
and clients of the Company (as directed by the Board of Directors of Dycom
Industries, Inc. (the "BOARD"), to advise them of your departure from the
Company.
(b) The text of the notice announcing the termination of your
employment with the Company that will be circulated to other employees of the
Company and the press and, if necessary, customers and clients is set forth as
Exhibit A to this Agreement. The notice will be disseminated on the Retirement
Date, contemporaneous with the Company's announcement of its earnings for the
fourth quarter of fiscal year 2000.
2
2. TERMINATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS.
(a) Except as expressly provided herein, as of the Retirement
Date, any written or oral agreements or understandings between you and the
Company are terminated and are of no further force and effect. Further, this
Agreement supersedes all prior agreements or understandings between you and the
Company, including, without limitation, the Employment Agreement.
(b) As of the Retirement Date, you shall have no duties or
responsibilities to the Company and the Company shall have no duties or
responsibilities to you, except as expressly set forth in this Agreement.
3. COMPENSATION AND RETIREMENT PAYMENT.
(a) As soon as administratively practicable following the
Retirement Date, the Company shall pay you (i) any unpaid salary accrued through
the Retirement Date, (ii) any unreimbursed expenses, and (iii) a lump sum
payment (the "RETIREMENT PAYMENT") in the amount of one million eight hundred
fifty thousand dollars ($1,850,000).
(b) During the Consulting Period (as defined below), the
Company will provide you and your spouse with medical and dental insurance
benefits (the "WELFARE BENEFITS") substantially similar to the medical and
dental insurance benefits provided to you and your spouse under the applicable
plans of the Company as of the Retirement Date; PROVIDED, HOWEVER, that the
Company will no longer be obligated to provide Welfare Benefits upon your death.
4. CONSULTING AGREEMENT.
(a) Commencing on the Retirement Date and continuing until
March 9, 2004 (the "CONSULTING PERIOD"), unless terminated sooner pursuant to
Section 4 (b) below, the Company will retain your services, and you agree to be
available to serve and to serve, as a consultant to the Company.
(b) As a consultant to the Company, you shall assist the
Company on such matters related to the business of the Company as may be
requested of you by the Board. The Company shall have the right, in addition to
any other remedies the Company may have, to terminate the Consulting Period
without any further obligation to you only if, (i) the Board determines that you
have breached Section 7 (c) of this Agreement or (ii) you die.
(c) The consulting services contemplated by this Section 4
shall be performed by you at such reasonable times and in such reasonable
locations as the Board may request. Your services as a consultant shall be
performed in the capacity of an "independent contractor" and not as an employee
of the Company and you shall be responsible for all withholding obligations in
connection with the payments of the Consulting Fee (as defined below).
(d) Subject to Section 4(b) above, the Company shall pay you a
weekly fee (the "CONSULTING FEE") of $6,250.00, in arrears, for each full week
in the Consulting Period and a pro rata portion thereof for any partial week in
the Consulting Period. In addition, the Company
2
3
agrees to reimburse you for the reasonable expenses incurred by you in
connection with your services as a consultant.
5. NO OTHER BENEFITS. Except as otherwise provided in this
Agreement, you shall not be eligible to participate in any employee benefit plan
or program of the Company, including without limitation any incentive, bonus or
similar compensation plan or arrangement. Without limiting the generality of the
preceding sentence, you acknowledge and agree that in consideration of the
payment to you of the Retirement Payment, you shall not be entitled to any other
severance or similar benefits under any plan, program, policy or arrangement,
whether formal or informal, written or unwritten, of the Company, or to any
other bonus or incentive payment for fiscal year 2000 or any other period.
6. RETURN OF PROPERTY. You represent and warrant that you
shall deliver to the Company promptly upon execution of this Agreement all
property made available to you in connection with your service to the Company,
including, without limitation, credit cards, any and all records, manuals,
reports, papers and documents (and all copies thereof) kept or made by you in
connection with your employment as an officer or employee of the Company, all
computer hardware or software, files, memoranda, correspondence, vendor and
customer lists, financial data, keys and security access cards; PROVIDED,
HOWEVER, that you will retain all personal effects located in your office at
Dycom Industries, Inc. including, without limitation, furnishings, pictures and
keepsakes and the Company will cause such personal effects to be delivered, at
its own expense, to a location in Florida that you will provide to the Company
as soon as practicable.
7. COVENANTS.
(a) CONFIDENTIAL INFORMATION. During the Consulting Period and
ending on the fifth anniversary following the termination of the Consulting
Period, you agree not to divulge or appropriate to your own use or to the use of
others any trade secrets or confidential information or confidential knowledge
pertaining in any respect to the business of the Company (collectively, the
"PROPRIETARY INFORMATION"). The restrictions contained herein shall not apply
to, and Proprietary Information shall not include, any information which (i) was
already available to the public at the time of disclosure, or subsequently
became available to the public, otherwise than by breach of this Agreement or
the Employment Agreement, or (ii) is or becomes available to you following the
termination of your service to with the Company on a non-confidential basis from
a third-party source; PROVIDED that such third-party source is not bound by a
confidentiality agreement or any other obligation of confidentiality to the
Company.
(b) CONFIDENTIALITY OF THIS AGREEMENT. You agree to keep the
terms of this Agreement and all communications with the Company and their
counsel regarding the terms of the Agreement and any and all events,
allegations, actions and circumstances related to your termination of employment
with the Company in strictest confidence unless required to do otherwise by
legal process or pursuant to a discovery request in any civil or criminal
proceeding. Nothing in this subparagraph (b) shall prohibit you from disclosing
the terms of this Agreement to your spouse, attorneys, tax advisors, and/or
accountants as necessary for them to render advice and/or prepare your tax
return. In the event you believe you are, or have reason to believe you
3
4
will be, required by any applicable law, discovery request and/or legal process
to disclose the terms of this Agreement, you shall provide the Company's General
Counsel with written notice as soon as practicable and, if possible, given the
date of your receipt of such discovery request and/or legal process, such notice
shall be provided no less than 5 business days prior to any such disclosure.
(c) COVENANT NOT TO COMPETE. During the Consulting Period, you
agree not to directly or indirectly engage in any business, whether as
proprietor, partner, joint venturer, employer, agent, employee, consultant,
officer or beneficial or record owner of more than one percent of the stock of
any corporation or association of any nature which is competitive with the
business conducted by the Company in the current geographical service area of
the Company or in any other geographical service area of the Company during the
Consulting Period, except that nothing herein shall prevent you from owning any
part of or participating in the operation of Xxxxxxx, Inc. In addition, within
such geographical service areas, you agree not to solicit or do business
competitive with the business conducted by the Company, with any customers,
partners or associates of the Company.
(d) NO DISPARAGING COMMENTS. You also agree to refrain from
making now or at any time in the future any disparaging comment concerning the
Company or any current or former directors, officers or employees of the
Company, and the Company agrees to refrain from making now or at any time in the
future any disparaging comment concerning you.
(e) REMEDIES. You and the Company acknowledge that a breach of
any of the covenants contained in this Section 7 may result in material
irreparable injury to the other party for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of such a breach or threat thereof, you or the Company,
as the case may be, shall be entitled, in addition to any other rights or
remedies you or it may have, to obtain a temporary restraining order and/or a
preliminary or permanent injunction enjoining or restraining the other party
from engaging in activities prohibited by this Section 7 or requiring your or
its compliance with the affirmative obligations provided for in this Section.
8. EMPLOYEE SATISFACTION; RELEASE.
(a) WAIVER. You agree that the payments and other benefits to
be provided pursuant to this Agreement shall be in satisfaction of any and all
claims for payment or any other benefits that you may have against the Company
arising out of (i) your employment with the Company or your status as an officer
or director of the Company, or (ii) the termination of such employment and
status; excluding claims that arise out of an asserted breach of this Agreement
and claims for indemnification you may now or in the future have under any
bylaw, agreement or otherwise ("EXCLUDED Claims"). In recognition of the
consideration cited above, you hereby forever release and discharge the Company
and its present former and future directors, officers, employees, subsidiaries,
affiliates, agents, attorneys, heirs and assigns (the "RELEASED PARTIES") from
any and all claims, actions and causes of action that you have or may have or in
the future possess or may possess with respect to the Released Parties,
including, but not limited to, any claims arising under Title VII of the Civil
Rights Act of 1964, the Rehabilitation Act of 1973, the Americans with
Disabilities Act of 1990, the Civil Rights Act of 1866, the Civil Rights Act of
4
5
1991, the Employee Retirement Income Security Act of 1974, the Older Workers
Benefit Protection Act, the Family Medical Leave Act of 1993, or any other
federal, state or local law, and in each case the applicable rules and
regulations promulgated thereunder, whether such claim arises under statute or
common law and whether or not you are presently aware of the existence of such
claim, damage, action or cause of action, suit or demand, arising out of (y)
your employment with the Company or your status as an officer or director of the
Company, or the termination of such employment and status (including, without
limitation, all claims related to the payment of compensation and benefits and
all claims arising under any Federal or state statute or regulation), except for
any Excluded Claims, or (z) any event, condition, circumstance or obligation
that occurred, existed or arose on or prior to the date hereof. By signing this
Agreement, you represent that you have read carefully and fully understand the
terms of this Agreement and have been given the opportunity to consult with the
attorney(s) of your choice prior to signing this Agreement and to have those
attorney(s) explain the provisions of this Agreement to you, that you have in
fact consulted an attorney and he has negotiated this Agreement on your behalf,
and that you have knowingly and voluntarily accepted the terms of the offer as
described herein.
(b) ADEA WAIVER AND PROCEDURES. In addition to the general and
specific release and waiver of claims contained above and in recognition of the
consideration recited above, you specifically waive any rights or claims you may
have under the Age Discrimination in Employment Act of 1967 ("ADEA"), against
any of the Released Parties. As contemplated under ADEA, you shall have up to 21
days from receipt of this Agreement to accept its terms, although you may accept
the Agreement at any time within those 21 days. The Company hereby advises you
to consult with, and you hereby acknowledge that you have consulted with, your
own personal legal counsel concerning any questions about the Agreement and he
has negotiated this Agreement on your behalf. This Agreement will not become
effective or enforceable until seven days following the date you sign and return
it to the Company. During that seven-day period, you may rescind the Agreement
by notifying the Company in writing that you no longer wish to enter into the
Agreement, in which event the Company shall not be required to provide you with
any payment or benefit hereunder.
(c) COMPANY RELEASE. The Company (including its affiliates)
hereby forever releases and discharges you, your heirs, successor and assigns,
from any and all claims, actions and causes of action that it has or may have or
in the future possess or may possess, whether such claim arises under statute or
common law and whether or not the Company is presently aware of such claim,
damage, action or cause of action, suit or demand, arising out of (x) your
employment with the Company or your status as an officer or director of the
Company, or the termination of such employment and status, except for claims
relating to a breach of this Agreement by you, or (y) any event, condition,
circumstance or obligation that occurred, existed or arose on or prior to the
date hereof.
9. COOPERATION OBLIGATION. You shall make all reasonable and
diligent efforts to cooperate with the Company in connection with all pending,
threatened or future claims, actions, arbitrations, litigations, investigations,
or inquiries by any state, federal, foreign or private entity, directly or
indirectly arising from or relating to any transaction, event or activity you
were involved in, participated in, or had knowledge of, while at the Company
which
5
6
have been or in the future may be asserted against any of the Released Parties.
Such cooperation shall include all reasonable assistance that the Company
determines is necessary, including, but not limited to, meeting or consulting
with the Company and its counsel and their designees, reviewing documents,
analyzing facts and appearing or testifying as a witness or interviewee or
otherwise. You agree that you will provide such assistance and cooperation in
the manner and at the locations as shall be reasonably requested by the Company.
The Company agrees to reimburse you in full for reasonable expenses incurred by
you in providing assistance and cooperation under this Section 9.
10. GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of Florida.
11. SUCCESSORS. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of its business and/or assets to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform if no such succession had taken place.
12. SEVERABILITY. Each provision of this Agreement will be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
13. TAX WITHHOLDING. All amounts payable to you pursuant to
this Agreement shall be subject to all legal requirements with respect to the
withholding of taxes, including FICA and FUTA, if applicable.
14. HEADINGS. Section headings are used for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
15. DRAFTING. No party or their counsel shall be deemed to
have drafted this Agreement, it being the intent of the parties that all parties
be deemed to have participated equally in its preparation.
16. EXECUTION. This Agreement may be signed in counterpart
which when taken together shall be deemed one and the same document.
17. COMPLETE UNDERSTANDING. This Agreement represents the
entire and complete agreement between you and the Company. Except as otherwise
provided herein, all prior discussions, agreements, and/or understandings
between you and the Company, whether written or otherwise, not contained in this
Agreement are revoked by this Agreement.
6
7
Your signature on the line below constitutes your agreement
with each provision contained herein.
DYCOM INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
ACCEPTED AND AGREED:
/s/ Xxxxxx X. Xxxxxxx
------------------------
Xxxxxx X. Xxxxxxx
Dated: August 28, 2000
7
8
EXHIBIT A
Xxxxxx Xxxxxxx, Executive Chairman of Dycom Industries, Inc., has announced his
retirement as an employee of the company effective as of August 28, 2000. Xx.
Xxxxxxx will, however, remain as chairman of the board of directors of Dycom.
