EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 8, 2000 (this
"Agreement") among DYCOM INDUSTRIES, INC., a Florida corporation (the
"Company"), and the parties listed on the signature pages hereto (each a
"Purchaser" and, collectively, the "Purchasers") who will, as of the effective
time of the Merger (as defined below) be holders of the amount of common stock,
par value $0.33 1/3 per share, of the Company (the "Common Stock") set forth on
Schedule I to this Agreement.
WHEREAS, Dycom Acquisition Corporation IV, a Utah corporation
and wholly owned subsidiary of the Company ("Merger Sub") will be merged (the
"Merger") with and into Xxxxx Xxxxx Sons Company, a Utah corporation ("NFSC"),
pursuant to an Agreement and Plan of Merger dated as of February 14, 2000 among
the Company, Merger Sub, NFSC and the Purchasers (the "Merger Agreement");
WHEREAS, the Purchasers will receive the Common Stock pursuant
to the Merger Agreement; and
WHEREAS, it is a condition to the obligations of the parties
to the Merger Agreement that this Agreement be entered into by the parties
hereto concurrently with the closing under the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual convents and agreements herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Certain Definitions. The following terms, as used herein,
have the following meanings:
"Affiliate" of a Holder means (a) a Person who controls, is
controlled by or is under common control with such Holder or the spouse
or children (or a trust exclusively for the benefit of a spouse and/or
children) of such Holder or, in the case of a Holder that is a
partnership, its partners, (b) trusts for the benefit of any of the
Persons included in the foregoing clause (a), and (c) any charitable
foundation a majority of whose members, trustees or directors, as the
case may be, are Persons included in the foregoing clause (a).
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"Aggregate Maximum Demand Amount" has the meaning set forth in
Section 3(a).
"Aggregate Maximum Participatory Amount" has the meaning set
forth in Section 4(a).
"Aggregate Minimum Demand Amount" has the meaning set forth in
Section 3(a).
"Agreement" has the meaning set forth in the preamble to this
agreement.
"Common Stock" has the meaning set forth in the preamble to
this Agreement.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, as the same shall be in effect
at the time.
"Holder" means a Purchaser or any assignee thereof to whom the
rights under this Agreement are assigned in accordance with the
provisions of Section 14.
"Individual Maximum Demand Amount" has the meaning set forth
in Section 3(a).
"Initiating Holders" has the meaning set forth in Section
3(a).
"Merger" has the meaning set forth in the recitals to this
Agreement.
"Merger Agreement" has the meaning set forth in the recitals
to this Agreement.
"Merger Sub" has the meaning set forth in the preamble to this
Agreement.
"NFSC" has the meaning set forth in the recitals to this
Agreement.
"Person" means an individual, corporation, partnership,
limited partnership, syndicate, person (including, without limitation,
a "person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government.
"PORTAL" has the meaning set forth in Section 10(b).
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"Purchaser" has the meaning set forth in the preamble to this
Agreement.
"register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement
or document.
"Registrable Stock" means (a) the Common Stock issued to the
Purchasers pursuant to the Merger Agreement, (b) any Common Stock
issued as (or issuable upon the conversion or exercise of any warrant,
right, option or other convertible security which is issued) a dividend
or other distribution with respect to, or in exchange for, or in
replacement of, the Common Stock issued to the Purchasers pursuant to
the Merger Agreement or this clause (b), and (c) any Common Stock
issued by way of a stock split of the Common Stock referred to in
clause (a) or (b) above. For purposes of this Agreement, any
Registrable Stock shall cease to be Registrable Stock when (1) a
registration statement covering such Registrable Stock has been
declared effective and such Registrable Stock has been disposed of
pursuant to such effective registration statement, (2) such Registrable
Stock is sold by a Person in a transaction in which the rights under
the provisions of this Agreement are not assigned or (3) such
Registrable Stock may be sold pursuant to Rule 144(k) (or any similar
provision then in force under the Securities Act) without registration
under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute, as the same shall be in effect at the
time.
2. Notice of Proposed Transfer. Prior to any proposed sale,
transfer, disposition or distribution of any Registrable Stock (other than under
the circumstances described in Section 3 or 4), the holder thereof shall have
given written notice to the Company of its intention to effect such sale,
transfer, disposition or distribution. Each such notice shall describe the
manner of the proposed sale, transfer, disposition or distribution, and, if
requested by the Company, shall be accompanied by an opinion of counsel
satisfactory to the Company to the effect that the proposed sale, transfer,
disposition or distribution may be effected without registration under the
Securities Act, whereupon the holder of such stock shall be entitled to sell,
transfer, dispose of or distribute such stock in accordance with the terms of
its notice. Each certificate for Registrable Stock sold, transferred, disposed
of or distributed as provided above shall bear the legend required pursuant to
Section 6.07 of the Merger Agreement, except that such certificate shall not
bear such legend if (i) such sale, transfer, disposition or distribution is in
accordance with the provisions of Rule 144 (or any other rule permitting public
sale without registration under the Securities Act) or (ii) the opinion of
counsel referred
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to above is to the further effect that the transferee or holder and any
subsequent transferee or holder (other than an Affiliate of the Company) would
be entitled to transfer such securities in a public sale without registration
under the Securities Act.
3. Demand for Registration.
(a) On and after the date that is ninety (90) days from the
Effective Time (as such term is defined in the Merger Agreement), the
Holders of at least 331/3% of the Registrable Stock (the "Initiating
Holders") may demand in a written notice that the Company file a
registration statement under the Securities Act (or a similar document
pursuant to any other statute then in effect corresponding to the
Securities Act) covering the registration of any or all Registrable
Stock held by such Initiating Holders in the manner specified in such
notice, provided that the amount of Registrable Stock included in such
registration shall be equal to at least 331/3% ("Aggregate Minimum
Demand Amount"), but not more than 50% (the "Aggregate Maximum Demand
Amount") of the total Registrable Stock existing on the date of such
notice, and provided further that, with respect to any Holder who is a
Purchaser or an Affiliate of a Purchaser, the amount of Registrable
Stock included in such registration by such Holder shall not exceed 50%
(the "Individual Maximum Demand Amount") of the total Registrable Stock
held by such Holder. Following receipt of any notice under this Section
3 the Company shall (x) within twenty (20) days notify all other
Holders of such request in writing and (y) use its reasonable efforts
to cause to be registered under the Securities Act, subject to the
provisos of the immediately preceding sentence, all Registrable Stock
that the Initiating Holders and such other Holders have demanded,
within ten (10) days after the Company has given such notice, be
registered in accordance with the manner of disposition specified in
such notice by the Initiating Holders, provided, however, that (1) if
the amount of Registrable Stock requested to be included in a
registration pursuant to this Section 3(a) exceeds the Aggregate
Maximum Demand Amount, then the amount of Registrable Stock registered
in such registration shall be reduced pro rata based upon the amount of
securities then held by each Holder so that the Aggregate Maximum
Demand Amount is not exceeded, and (2) if (i) any Person (an "ECC
Holder") holding securities of the Company is entitled to register any
of such securities pursuant to the Registration Rights Agreement (the
"ECC Agreement"), dated as of March 31, 1999, among the Company, Xxxx
X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxxx, Xxxxxxx X. XxXxxxx and Xxxxx X. Xxxx and such Person has
requested pursuant to paragraph 4 of the ECC Agreement to include a
certain amount of securities in a registration initiated by the Holders
pursuant to this paragraph 3(a) and (ii) the Company determines that it
is, pursuant to paragraph 4 of the ECC Agreement, entitled to reduce
the amount of securities included in such registration by an ECC
Holder, then the amount of securities registered in such
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registration by the Holders and the ECC Holders shall be reduced pro
rata based upon the amount of securities then held by each such holder.
(b) If the Initiating Holders intend to have the Registrable
Stock distributed by means of an underwritten offering, the Company
shall include such information in the written notice referred to in
clause (x) of Section 3(a). In such event, the right of any Holder to
include its Registrable Stock in such registration shall be conditioned
upon such Holder's participation in such underwritten offering and the
inclusion of such Holder's Registrable Stock in the underwritten
offering (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) on the terms provided below.
All Holders proposing to distribute Registrable Stock through such
underwritten offering shall enter into an underwriting agreement in
customary form with the underwriter or underwriters. Such underwriter
or underwriters shall be selected by a majority in interest of the
Initiating Holders and shall be approved by the Company, which approval
shall not be unreasonably withheld, provided that (i) all of the
representations and warranties by, and the other agreements on the part
of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such Holders of Registrable Stock,
(ii) any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement shall be conditions
precedent to the obligations of such Holders of Registrable Stock, and
(iii) no Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements regarding such Holder,
the Registrable Stock of such Holder and such Holder's intended method
of distribution and any other representations required by law or
reasonably required by the underwriter or the Company. If any Holder of
Registrable Stock disapproves of the terms of the underwriting, such
Holder may elect to withdraw all its Registrable Stock by written
notice to the Company, the managing underwriter and the Initiating
Holders. The Registrable Stock so withdrawn shall also be withdrawn
from registration. If, as a result of such withdrawal, the amount of
Registrable Stock to be included in the offering is less than the
Aggregate Minimum Demand Amount, the Company shall not be required to
proceed with such offering.
(c) Notwithstanding any provision of this Agreement to the
contrary:
(i) the Company shall not be required to effect
a registration pursuant to this Section 3
during the period starting with the date of
filing by the Company of, and ending on a
date one hundred twenty (120) days following
the effective date of, a registration
statement pertaining to a public offering of
securities for the account of the Company or
on behalf of the selling stockholders
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under any other registration rights
agreement which the Holders have been
entitled to join pursuant to Section 4 of
this Agreement; provided that the Company
shall actively employ in good faith all
reasonable efforts to cause such
registration statement to become effective
as soon as possible; and
(ii) if the Company shall determine in good faith
that such registration would interfere with
any material transaction then being pursued
by the Company, the Company's obligation to
use its reasonable efforts to file a
registration statement shall be deferred for
a period not to exceed ninety (90) days.
(d) The Company shall not be obligated to effect and pay for
more than one (1) registration pursuant to this Section 3; provided,
that a registration demanded pursuant to this Section 3 shall not be
deemed to have been effected for purposes of this Section 3(d), (1) if
by reason of any reduction in the amount of securities registered by
the Holders pursuant to Section 3(a)(2) of this Agreement the amount of
Registrable Stock registered in such registration is not equal to or
greater than the Aggregate Minimum Demand Amount and (2) unless (i) it
has been declared effective by the SEC, (ii) it has remained effective
for the period set forth in Section 5(a) and (iii) the offering of
Registrable Stock pursuant to such registration is not subject to any
stop order, injunction or other order or requirement of the SEC (other
than any such stop order, injunction, or other requirement of the SEC
prompted by any act or omission of Holders of Registrable Stock).
4. Participatory Registration.
(a) If at any time on or after the date that is ninety (90)
days from the Effective Time, the Company determines that it shall file
a registration statement under the Securities Act (other than a
registration statement on a Form S-4 or S-8 or filed in connection with
an exchange offer or an offering of securities solely to the Company's
existing stockholders) on any form that would also permit the
registration of the Registrable Stock and such filing is to be on its
behalf and/or on behalf of selling holders of its securities for the
general registration of its Common Stock to be sold for cash (other
than where such selling holders are limited to selling securities
pursuant to an over-allotment option), the Company shall each such time
promptly give each Holder written notice of such determination setting
forth the date on which the Company proposes to file such registration
statement, which date shall be no earlier than fifteen (15) days from
the date of such notice, and advising each Holder of its right to have
Registrable Stock included in such registration. Subject to Sections 7
and 9, upon the written request of any Holder received by the Company
no later than ten (10)
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days after the date of receipt of the Company's notice, the Company
shall use its reasonable efforts to cause to be registered under the
Securities Act all of the Registrable Stock that each such Holder has
so requested to be registered; provided that the amount of Registrable
Stock included in such registration shall not exceed 50% (the
"Aggregate Maximum Participatory Amount") of the total Registrable
Stock existing on the date of such notice given by the Company, and
provided further that, with respect to any Holder who is a Purchaser or
an Affiliate of a Purchaser, the amount of Registrable Stock included
in such registration by such Holder shall not exceed 50% of the total
Registrable Stock held by such Holder. If the amount of Registrable
Stock requested to be included in a registration pursuant to this
Section 4(a) exceeds the Aggregate Maximum Participatory Amount, then
the amount of Registrable Stock registered in such registration shall
be reduced pro rata based upon the amount of securities then held by
each Holder so that the Aggregate Maximum Participatory Amount is not
exceeded.
(b) In a registration pursuant to Section 4(a) hereof, if the
managing underwriter (or, in the case of a non-underwritten offering,
the Company) has informed the Holders of Registrable Stock requesting
inclusion in such offering (and the Company in the case of an
underwritten offering) that in such underwriter's opinion (or, in the
case of a non-underwritten offering, the opinion of the Company) the
total number of securities which the Company, the Holders of
Registrable Stock and any other Persons desiring to participate in such
registration intend to include in such offering is such as could
materially and adversely affect the success of such offering, including
the price at which such securities can be sold, then the Company will
be required to include in such registration only the amount of
securities which it is so advised (or, in the case of a
non-underwritten offering, that it reasonably determines) should be
included in such registration. In such event: (1) in cases only
involving the registration for sale of securities for the Company's own
account (other than pursuant to the exercise of participatory rights
herein and in other contractual commitments of the Company), securities
shall be registered in such offering in the following order of
priority: (i) first, the securities which the Company proposes to
register, (ii) second, provided that no securities sought to be
included by the Company have been excluded from such registration, the
securities which have been requested to be included in such
registration by Persons entitled to exercise participatory registration
rights pursuant to contractual commitments of the Company existing as
of the date hereof, pro rata based upon the aggregate amount of
securities then held, and (iii) third, provided that no securities
sought to be included by the Company or the other Persons described in
the immediately preceding clause (ii) have been excluded from such
registration, the securities which have been requested to be included
in such registration by the Holders of Registrable Stock pursuant to
this Agreement together with the securities of other Persons entitled
to exercise participatory registration rights pursuant to contractual
commitments of the Company (pro rata based upon the aggregate amount of
securities then held) and are not
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included in the immediately preceding clause (ii); and (2) in cases not
involving the registration for sale of securities for the Company's own
account only, securities shall be registered in such offering in the
following order of priority: (i) first, the securities of any Person
whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Company is the basis for the registration
and, pursuant to the terms of the ECC Agreement, the securities
requested to be included in such registration by any ECC Holder
pursuant to paragraph 4 of the ECC Agreement, pro rata based upon the
aggregate amount of securities then held, (ii) second, provided that no
securities of such Person referred to in the immediately preceding
clause (i) have been excluded from such registration, the securities
which have been requested to be included in such registration by
Persons entitled to exercise participatory registration rights pursuant
to contractual commitments of the Company existing as of the date
hereof, pro rata based upon the aggregate amount of securities then
held, (iii) third, provided that no securities of such Persons referred
to in the immediately preceding clause (i) or (ii) have been excluded
from such registration, the securities which have been requested to be
included in such registration by the Holders of Registrable Stock
pursuant to this Agreement together with the securities of other
Persons entitled to exercise participatory registration rights pursuant
to contractual commitments of the Company (pro rata based upon the
aggregate amount of securities then held) and are not included in the
immediately preceding clause (ii) and (iv) fourth, provided that no
securities of any other Person have been excluded from such
registration, the securities which the Company proposes to register.
5. Obligations of the Company. Whenever required under this
Agreement to use its reasonable efforts to effect the registration of any
Registrable Stock, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
signed, pursuant to Section 6(a) of the Securities Act, by the officers
and directors of the Company with respect to such Registrable Stock and
use its reasonable efforts to cause such registration statement to
become and remain effective for the period of the distribution
contemplated thereby determined as hereinafter provided;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement signed, pursuant to Section
6(a) of the Securities Act, by the officers and directors of the
Company and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Stock covered by such
registration statement;
(c) furnish to the Holders such numbers of copies of the
registration statement and the prospectus included therein (including
each preliminary prospectus and any amendments or supplements thereto
in conformity with the requirements of the
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Securities Act) and such other documents and information as they may
reasonably request;
(d) use its reasonable efforts to register or qualify the
Registrable Stock covered by such registration statement under such
other securities or blue sky laws of such jurisdiction within the
United States and Puerto Rico as shall be reasonably appropriate for
the distribution of the Registrable Stock covered by the registration
statement; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do
business in, subject itself to general taxation by or to file a general
consent to service of process in any jurisdiction wherein it would not
but for the requirements of this paragraph (d) be obligated to do so;
and provided further that the Company shall not be required to qualify
such Registrable Stock in any jurisdiction in which the securities
regulatory authority requires that any Holder submit any shares of its
Registrable Stock to the terms, provisions and restrictions of any
escrow, lockup or similar agreement(s) for consent to sell Registrable
Stock in such jurisdiction unless such Holder agrees to do so;
(e) promptly notify each Holder for whom such Registrable
Stock is covered by such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, and at the request of any such Holder promptly
prepare and furnish to such Holder a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made;
(f) use reasonable efforts to furnish, at the request of any
Holder demanding registration of Registrable Stock pursuant to this
Agreement, if the method of distribution is by means of an
underwriting, on the date that the shares of Registrable Stock are
delivered to the underwriters for sale pursuant to such registration,
or if such Registrable Stock is not being sold through underwriters, on
the date that the registration statement with respect to such shares of
Registrable Stock becomes effective, (i) a signed opinion, dated such
date, of the independent legal counsel representing the Company for the
purpose of such registration, addressed to the underwriters, if any,
and if such Registrable Stock is not being sold through underwriters,
then to the Holders making such request, as to such matters as such
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underwriters or the Holders holding a majority of the Registrable Stock
included in such registration, as the case may be, may reasonably
request and as would be customary in such a transaction; and (ii)
letters dated such date and the date the offering is priced from the
independent certified public accountants of the Company, addressed to
the underwriters, if any, and if such Registrable Stock is not being
sold through underwriters, then to the Holders making such request and,
if such accountants refuse to deliver such letters to such Holders,
then to the Company (A) stating that they are independent certified
public accountants within the meaning of the Securities Act and that,
in the opinion of such accountants, the financial statements and other
financial data of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereto, comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and (B) covering such other
financial matters (including information as to the period ending not
more than five (5) business days prior to the date of such letters)
with respect to the registration in respect of which such letter is
being given as such underwriters or the Holders holding a majority of
the Registrable Stock included in such registration, as the case may
be, may reasonably request and as would be customary in such a
transaction;
(g) enter into customary agreements (including if the method
of distribution is by means of an underwriting, an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of the Registrable Stock to be so included in the registration
statement;
(h) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, but not later than
eighteen (18) months after the effective date of the registration
statement, an earnings statement covering the period of at least twelve
(12) months beginning with the first full month after the effective
date of such registration statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(i) use its reasonable efforts to list the Registrable Stock
covered by such registration statement with any securities exchange on
which the Common Stock is then listed.
For purposes of Sections 5(a) and 5(b), the period of distribution of
Registrable Stock shall be deemed to extend until the earlier of (i) the sale of
all Registrable Stock covered thereby or, in the case of a firm commitment
underwritten public offering, the distribution of all securities purchased by
the underwriters and (ii) six (6) months after the effective date thereof.
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6. Suspension of Registration Statement. The Company may
suspend the availability of any registration statement filed by the Company
referred to in Section 3 or 4 and the use of the prospectus included therein if
such suspension is effected in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, the filing of public reports with the SEC
and during the pendency of material corporate developments. Upon such suspension
of a registration statement by the Company, the Holders shall suspend offers and
sales of Registrable Stock until the Company notifies the Holders that (i)
offers and sales may recommence or (ii) the Company has filed a supplement to
the prospectus or an amendment to such registration statement to update the
disclosure contained therein.
7. Furnish Information. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that the Holders shall furnish to the Company such information regarding
themselves, the Registrable Stock held by them, and the intended method of
disposition of such securities as the Company shall reasonably request and as
shall be required in connection with the action to be taken by the Company.
8. Expenses of Registration. All expenses incurred in
connection with each registration pursuant to Section 3 and Section 4 of this
Agreement, excluding underwriters' discounts and commissions and the fees, but
including without limitation all registration, filing and qualification fees,
word processing, duplicating, printers' and accounting fees (including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance), fees of the New York Stock Exchange or
listing fees, messenger and delivery expenses, all fees and expenses of
complying with state securities or blue sky laws, fees and disbursements of
counsel for the Company, and, to the extent permitted without jeopardizing the
treatment of the Merger as a pooling of interests for accounting purposes, the
fees and disbursements of one counsel for the selling Holders (which counsel
shall be selected by the holders of a majority in interest of the Common Stock
being registered (excluding the Company and the Common Stock being registered
thereby)), shall be paid by the Company; provided, however, that if a
registration request pursuant to Section 3 of this Agreement is subsequently
withdrawn at the request of the Holders of a number of shares of Registrable
Stock such that the remaining Holders requesting registration would not have
been able to request registration under the provisions of Section 3 of this
Agreement, such withdrawing Holders shall bear all expenses incurred in
connection with such requested registration. The Holders shall bear and pay the
underwriting commissions and discounts applicable to securities offered for
their account in connection with any registrations, filings and qualifications
made pursuant to this Agreement.
9. Underwriting Requirements. In connection with any
underwritten offering, the Company shall not be required under this Agreement to
include shares of Registrable Stock in such underwritten offering unless the
Holders of such shares of
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Registrable Stock accept the terms of the underwriting of such offering that
have been reasonably agreed upon between the Company and the underwriters
selected by the Company; provided, however, that in no event shall any Holder be
required to make the representations and warranties to, or agreements with, the
Company and its representatives other than as contemplated by Section 3(b)(iii).
10. Rule 144 Information. With a view to making available the
benefits of certain rules and regulations of the SEC which may at any time
permit the sale of the Registrable Stock to the public without registration, (a)
at all times after ninety (90) days after any registration statement covering a
public offering of securities of the Company under the Securities Act shall have
become effective, the Company agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(ii) use its best efforts to file with the SEC in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act; and
(iii) furnish to each Holder of Registrable Stock forthwith
upon request a written statement by the Company as to its compliance
with the reporting requirements of such Rule 144 and of the Securities
Act and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by
the Company as such Holder may reasonably request in availing itself of
any rule or regulation of the SEC allowing such Holder to sell any
Registrable Stock without registration; and
(b) at all times during which the Company is neither subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it
will provide, upon the written request of any Holder of Registrable Stock in
written form (as promptly as practicable and in any event within 15 business
days), to any prospective buyer of such stock designated by such Holder, all
information required by Rule 144A(d)(4)(i) of the General Regulations
promulgated by the SEC under the Securities Act. Upon written request of the
Holder, the Company will cooperate with and assist any Holder of Registrable
Stock or any member of the National Association of Securities Dealers, Inc.
system for Private Offerings Resales and Trading through Automated Linkage
("PORTAL") in applying to designate and thereafter maintain the eligibility of
the Registrable Stock for trading through PORTAL.
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11. Indemnification. In the event any Registrable Stock is
included in a registration statement under this Agreement:
(a) The Company shall indemnify and hold harmless each Holder,
such Holder's directors and officers, each Person who participates in
the offering of such Registrable Stock, including underwriters (as
defined in the Securities Act), and each Person, if any, who controls
such Holder or participating Person within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or proceedings in respect thereof) arise out of or are
based on any untrue or alleged untrue statement of any material fact
contained in such registration statement on the effective date thereof
(including any prospectus filed under Rule 424 under the Securities Act
or any amendments or supplements thereto) or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse each such Holder, such
Holder's directors and officers, such participating person or
controlling person for any legal or other expenses reasonably incurred
by them (but not in excess of expenses incurred in respect of one
counsel for all of them unless, in the reasonable judgement of an
indemnified party there is a conflict of interest with another
indemnified party, in which case the indemnified parties may be
represented by separate counsel) in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section 11(a)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably
withheld); provided further that the Company shall not be liable to any
Holder, such Holder's directors and officers, participating Person or
controlling Person in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus or amendments or supplements
thereto, in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Holder, such Holder's directors and officers, participating Person
or controlling Person. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of any such
Holder, such Holder's directors and officers, participating Person or
controlling Person, and shall survive the transfer of such securities
by such Holder. The indemnification as provided in this Section 11(a)
shall be separate from, and in addition to, the indemnification
provided in the Merger Agreement.
14
(b) The Holders demanding or joining in a registration
severally and not jointly shall indemnify and hold harmless the
Company, each of its directors and officers, each agent and any
underwriter for the Company (within the meaning of the Securities Act)
and each Person who controls any of the foregoing Persons (within the
meaning of the Securities Act) against any losses, claims, damages or
liabilities, joint or several, to which the Company or any such
director, officer, controlling Person, agent or underwriter may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such registration statement
on the effective date thereof (including any prospectus filed under
Rule 424 under the Securities Act or any amendments or supplements
thereto) or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
such registration statement, preliminary or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity
with written information furnished by or on behalf of such Holder
expressly for use in connection with such registration; and each such
Holder shall reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, agent, underwriter or
controlling Person (but not in excess of expenses incurred in respect
of one counsel for all of them unless, in the reasonable judgement of
an indemnified party, there is a conflict of interest with another
indemnified party, in which case the indemnified parties may be
represented by separate counsel) in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this Section 11(b)
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the
consent of such Holder (which consent shall not be unreasonably
withheld), and provided further that the liability of each Holder
hereunder shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the
net proceeds from the sale of the shares sold by such Holder under such
registration statement bears to the total net proceeds from the sale of
all securities sold thereunder, but not in any event to exceed the net
proceeds received by such Holder from the sale of Registrable Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party under this
Section 11 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against any indemnifying party under this Section, notify the
indemnifying party in writing of the commencement thereof and the
indemnifying party shall have the right to participate in and assume
the defense thereof with counsel
15
selected by the indemnifying party and reasonably satisfactory to the
indemnified party; provided, however, that an indemnified party shall
have the right to retain its own counsel, with all fees and expenses
thereof to be paid by such indemnified party (except as provided in
paragraph (a) and (b) above), and to be apprised of all progress in any
proceeding the defense of which has been assumed by the indemnifying
party. The failure to notify an indemnifying party promptly of the
commencement of any such action shall only release the indemnifying
party from any of its obligations under this Section 11 if, and only to
the extent that, such indemnifying party is materially prejudiced by
such failure, but the omission to so notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section.
(d) To the extent any indemnification by an indemnifying party
is prohibited or limited by law, the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified
party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged
untrue statement of material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 11(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
12. Limitation on Registration Rights. Notwithstanding any
other provisions of this Agreement to the contrary, the Company shall not be
required to register any Registrable Stock under this Agreement with respect to
any demand or demands made by any Holder after 36 months after the date of this
Agreement.
16
13. Lockup. Each Holder shall, in connection with any
registration of the Company's securities, upon the request of the Company or the
underwriters managing any underwritten offering of the Company's securities,
agree in writing not to effect any sale, transfer, disposition or distribution
of any Registrable Stock (other than that included in the registration) without
the prior written consent of the Company or such underwriters, as the case may
be, for such period of time not to exceed one hundred eighty (180) days from the
effective date of such registration as the Company or the underwriters may
specify; provided, however, that all executive officers and directors of the
Company shall also have agreed not to effect any sale, transfer, disposition or
distribution of any Registrable Stock under the circumstances and pursuant to
the terms set forth in this Section 13.
14. Assignment of Registration Rights. The registration rights
of any Holder under this Agreement with respect to any Registrable Stock may be
assigned to an Affiliate of such Holder, to any charitable organization as such
term is defined by Section 501(c)(3) of the Internal Revenue Code of 1986, as
amended through the date hereof, or to a charitable remainder trust as such term
is defined by Section 664(d) of the Internal Revenue Code of 1986, as amended
through the date hereof; provided, however, that (a) the assigning Holder shall
give the Company written notice at or prior to the time of such assignment
stating the name and address of the assignee and identifying the securities with
respect to which the rights under this Agreement are being assigned; (b) such
assignee shall agree in writing, in form and substance reasonably satisfactory
to the Company, to be bound as a Holder by the provisions of this Agreement; and
(c) immediately following such assignment the further disposition of such
securities by such assignee is restricted under the Securities Act. No
assignment of the registration rights of any Holder with respect to any
Registrable Stock in accordance with this Section 14 shall cause such
Registrable Stock to lose such status as Registrable Stock.
15. Binding Effect; Benefit. Subject to Section 14, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns and nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
16. Governing Law; Jurisdiction and Service of Process. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York applicable to contracts executed in and to be performed in
that State. Any legal action or proceeding with respect to this Agreement which
is initiated by any Holder shall be brought in the courts of the State of
Florida located in Palm Beach County, Florida or the United States District
Court for the Southern District of Florida. Any legal action or proceeding with
respect to this Agreement which is initiated by the Company shall be brought in
the courts of the State of Utah located in Salt Lake City, Utah or the United
States District Court for the District of Utah. By execution and delivery of
this Agreement, each of the parties hereto
17
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
hereto irrevocably consents to the service of process of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by certified mail, postage prepaid, to the party at its address set
forth in Section 19.
17. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
18. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
19. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy upon written confirmation of receipt by the recipient, telegram or
telex or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 19):
if to the Company:
Dycom Industries, Inc.
First Union Center,
Suite 500
0000 XXX Xxxxxxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx X. Xxxxxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
18
In the case of a notice given to any of the Purchasers, such notice shall be
delivered or sent to the address set forth below such Purchaser's name on the
signature pages hereto and, in each case, with a copy of such notice to Jones,
Waldo, Xxxxxxxx & XxXxxxxxx, P.C., 1500 First Interstate Plaza, 000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Xxxx X.
Xxxxxxx.
20. Amendments and Waivers. Any provision of this Agreement
may be amended or waived if such amendment or waiver is in writing and is
signed, in the case of an amendment, by the Holders of a majority of the
Registrable Stock and the Company, or in the case of a waiver, by the party
against whom the waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
21. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, or is reasonably likely to jeopardize the treatment of the
Merger as a pooling of interests for accounting purposes, such term or
provision, as to such jurisdiction, shall be ineffective, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the transactions set forth
in this Agreement is not affected in any manner materially adverse to any party
hereto. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, or that the treatment of the Merger as a
pooling of interests for accounting purposes is reasonably likely to be
jeopardized, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions set
forth in this Agreement be consummated as originally contemplated to the fullest
extent possible.
22. Entire Agreement. This Agreement (including the schedule
hereto) constitutes the entire agreement among the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings
among the parties with respect thereto.
23. Attorneys' Fees. In the event that any party hereto shall
file suit to enforce any of the terms of this Agreement or to recover damages
for a breach of this Agreement, the prevailing party shall be entitled to
recover attorney's fees and costs incurred in such proceeding.
19
24. Waiver of Jury Trial. EACH OF THE COMPANY AND THE HOLDERS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE COMPANY AND THE HOLDERS IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
20
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
DYCOM INDUSTRIES, INC.
By /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and
Chief Executive Officer
PURCHASERS:
/s/ Xxx X. Xxxxx
---------------------------------
Name: Xxx X. Xxxxx
Address: X.X. Xxx 000
Xxxxxxxx Xxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Address: X.X. Xxx 000
Xxxxxxxx Xxxxx, XX 00000
21
Schedule I
Ownership of Shares by the Purchasers
Immediately After the Effective Time
Xxx X. Xxxxx 1,363,105 shares
Xxxxxx X. Xxxxx 1,363,105 shares
