STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of January 7, 2002 (this
"Agreement"), among DYCOM INDUSTRIES, INC., a Florida corporation ("Parent"),
XXXX ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of
Parent ("Purchaser"), ARGUSS COMMUNICATION, INC., a Delaware corporation (the
"Company"), and each of the stockholders whose name appears on the signature
pages of this Agreement (each, a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, as of the date hereof, each Stockholder owns beneficially, and
has the sole power to vote or direct the vote of, the number of shares of common
stock, par value $.01 per share ("Company Common Stock"), of the Company as set
forth opposite such Stockholder's name on Exhibit A hereto (all such shares of
Company Common Stock and any shares of Company Common Stock hereafter acquired
by the Stockholders prior to the termination of this Agreement being referred to
herein as the "Shares");
WHEREAS, simultaneously herewith, Parent, Purchaser and the Company
have entered into an Agreement and Plan of Merger (the "Merger Agreement"; terms
used but not defined in this Agreement shall have the meanings ascribed to them
in the Merger Agreement), a copy of which has been made available to each
Stockholder, which provides, upon the terms and subject to the conditions
thereof, for the merger of Purchaser with and into the Company (the "Merger");
and
WHEREAS, as a condition to the willingness of Parent and Purchaser to
enter into the Merger Agreement, Parent and Purchaser have requested that the
Stockholders agree, and, in order to induce Parent and Purchaser to enter into
the Merger Agreement, the Stockholders have agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
1. Tender of Shares. Promptly following the commencement of the Offer,
each Stockholder hereby agrees that such Stockholder (a) shall tender, or cause
to be tendered, into the Offer, as promptly as practicable, all of his, her or
its Shares pursuant to the terms of the Offer and (b) shall not withdraw, or
cause to be withdrawn, such Shares from the Offer. The preceding sentence
notwithstanding, in the event that the Company terminates the Merger Agreement
pursuant to Section 10.01(c)(ii) thereof, then, as of the effective time of such
termination, the obligations of each Stockholder under this Section 1 shall
become null and void and have no further force or effect.
2. Vote in Favor of Merger. During the period commencing on the date
hereof and terminating at the earlier of (a) the Effective Time or (b) the
termination of this Agreement, each Stockholder shall vote, or cause to be
voted, all of his, her or its Shares at any meeting of the stockholders of the
Company (whether annual or special and whether or not adjourned or
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postponed), however called, and in any action by written consent of the
stockholders of the Company (i) in favor of the approval and adoption of the
Merger Agreement, (ii) against any Competing Transaction, merger, consolidation,
sale of assets, recapitalization or other business combination involving the
Company (other than the Merger) or any other action or agreement that could
reasonably be expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or that could reasonably be expected to result in any of the
conditions to the Company's or Parent's obligations under the Merger Agreement
not being fulfilled, and (iii) in favor of any other matter that could be
reasonably expected to facilitate the consummation of the Merger and the other
transactions contemplated by the Merger Agreement.
3. Grant of Proxy. Each Stockholder, by this Agreement, with respect to
his, her or its Shares, hereby grants an irrevocable proxy to Parent (and agrees
to execute such documents or certificates evidencing such proxy as Parent may
reasonably request) to vote, all of his, her or its Shares at any meeting of the
stockholders of the Company (whether annual or special and whether or not
adjourned or postponed), however called, and in any action by written consent of
the stockholders of the Company, during the period commencing on the date hereof
and terminating at the earlier of (a) the Effective Time and (b) the termination
of this Agreement, (i) in favor of the approval and adoption of the Merger
Agreement, (ii) against any Competing Transaction, merger, consolidation, sale
of assets, recapitalization or other business combination involving the Company
(other than the Merger) or any other action or agreement that could reasonably
be expected to result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement or
that could reasonably be expected to result in any of the conditions to the
Company's or Parent's obligations under the Merger Agreement not being
fulfilled, and (iii) in favor of any other matter that could be reasonably
expected to facilitate the consummation of the Merger and the other transactions
contemplated by the Merger Agreement. THIS PROXY IS IRREVOCABLE AND COUPLED WITH
AN INTEREST AND SHALL SURVIVE ANY TRANSFER OF SHARES UNTIL THE TERMINATION OF
THIS AGREEMENT.
4. Representations and Warranties of Stockholders. Each Stockholder
hereby severally (and only as to itself) represents and warrants to Parent and
Purchaser as follows:
(a) Organization; Authorization. Such Stockholder has full legal
capacity and authority to enter into this Agreement and to carry out such
person's obligations hereunder. This Agreement has been duly executed and
delivered by such Stockholder, and (assuming due authorization, execution and
delivery by Parent, Purchaser and the Company and each other Stockholder) this
Agreement constitutes a legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, except to the
extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles.
(b) No Conflict; Required Filings and Consents. (i) The execution and
delivery of this Agreement by such Stockholder do not, and the performance of
this Agreement by such Stockholder will not, (1) conflict with or violate any
Law applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected, or (2) result in any material
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breach of or constitute a material default (or an event which with notice or
lapse of time or both would become a material default) under, or give to others
any right of termination, amendment, acceleration or cancellation of, or result
in the creation of any encumbrance on any property or asset of such Stockholder
(including, without limitation, the Shares) pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is party or by which
such Stockholder is bound.
(ii) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, domestic or
foreign, except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would
not prevent or materially delay the performance by such Stockholder of such
Stockholder's obligations under this Agreement.
(c) Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency, court
or tribunal, foreign or domestic, or, to the knowledge of such Stockholder or
any of such Stockholder's affiliates, threatened against such Stockholder or any
of such Stockholder's affiliates or any of their respective properties that,
individually or in the aggregate, would reasonably be expected to prevent or
materially delay such Stockholder's ability to perform its obligations under
this Agreement. There is no judgment, decree or order against such Stockholder
or, to the knowledge of such Stockholder, any of such Stockholder's affiliates,
that would reasonably be expected to prevent, enjoin, alter or materially delay
the performance by such Stockholder of its obligations under this Agreement, or
that would reasonably be expected to have a material adverse effect on such
Stockholder's ability to perform its obligations under this Agreement.
(d) Ownership of Shares. The Shares are owned beneficially by the
Stockholder. Such Shares constitute all of the shares of Company Common Stock of
which such Stockholder is beneficial owner. All of such Shares are issued and
outstanding. The Stockholder has sole voting power and sole power of disposition
with respect to all of such Shares with no restrictions, subject to applicable
federal securities laws, on the Stockholder's rights of disposition pertaining
thereto.
5. Transfer of Shares. Each Stockholder agrees that he, she or it shall
not, directly or indirectly, (a) sell, assign, transfer (including by operation
of law), pledge, dispose of or otherwise encumber any of the Shares, (b) deposit
any Shares into a voting trust or enter into a voting agreement or arrangement
or grant any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect acquisition or
sale, assignment, transfer (including by operation of law) or other disposition
of any Shares or (d) take any action that would make any representation or
warranty of such Stockholder herein untrue or incorrect in any material respect
or have the effect of preventing or disabling the Stockholder from performing
his, her or its obligations hereunder or (e) otherwise agree to do any of the
foregoing. The preceding sentence notwithstanding, in the event that the Company
terminates the Merger Agreement pursuant to Section 10.01(c)(ii) thereof, then,
as of the effective time of such termination, the obligations of each
Stockholder under this Section 5 shall become null and void and have no further
force or effect.
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6. No Solicitation of Transactions. None of the Stockholders shall,
directly or indirectly, instruct its officers, directors, employees,
subsidiaries, agents or advisors or other representatives (including, without
limitation, any investment banker, attorney or accountant retained by it), to,
directly or indirectly, solicit, initiate or encourage (including by way of
furnishing nonpublic information), or take any other action to facilitate, any
inquiries or the making of any proposal or offer (including, without limitation,
any proposal or offer to stockholders of the Company) that constitutes, or may
reasonably be expected to lead to, any Competing Transaction, or enter into or
maintain or continue discussions or negotiate with any person or entity in
furtherance of such inquiries or to obtain a Competing Transaction, or agree to
or endorse any Competing Transaction, or authorize or permit any of the
officers, directors or employees of such party or any of its subsidiaries, or
any investment banker, financial advisor, attorney, accountant or other
representative retained by such party or any of its subsidiaries, to take any
such action; provided, however, that nothing in this Section 6 shall prevent the
Stockholder, in his, her or its capacity as a director or executive officer of
the Company, from engaging in any activity permitted pursuant to Section 8.04(b)
of the Merger Agreement or otherwise required in the exercise of such
Stockholder's fiduciary duties in his or her capacity as a director or executive
officer of the Company. Each Stockholder shall, and shall direct or cause his,
her or its representatives and agents to, immediately cease and cause to be
terminated any discussions or negotiations with any parties that may be ongoing
with respect to any Competing Transaction. Each Stockholder shall notify Parent
promptly if any proposal or offer, or any inquiry or contact with any person
with respect thereto, regarding a Competing Transaction is made.
7. Information for Offer Documents and Proxy Statement/Prospectus;
Disclosure. Each Stockholder covenants and agrees that none of the information
relating to such Stockholder and his, her or its affiliates provided in writing
by or on behalf of such Stockholder or his, her or its affiliates for inclusion
in the Schedule 14D-9, the Offer Documents, the Proxy Statement/Prospectus or
Merger Registration Statement will, at (i) the time the Merger Registration
Statement is declared effective, (ii) the time the Schedule 14D-9 or the Proxy
Statement/Prospectus (or any amendment thereof or supplement thereto) is first
filed with the SEC or mailed to the stockholders of the Company, (iii) the time
of the Company Stockholders Meeting and (iv) the Effective Time, contain any
untrue statement of material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Each
Stockholder authorizes and agrees to permit Parent and Purchaser to publish and
disclose in the Offer Documents, the Proxy Statement/Prospectus and the Merger
Registration Statement and related filings under the securities laws such
Stockholder's identity and ownership of Shares and the nature of his, her or its
commitments, arrangements and understandings under this Agreement and any other
information required by applicable Law.
8. Obligations of the Company. The Company hereby agrees to use its
reasonable best efforts to aid and cooperate with the other parties hereto in
effecting the terms of this Agreement.
9. Termination. Other than as expressly provided herein, the
obligations of the Stockholders under this Agreement shall terminate upon the
earlier of (i) the Effective Time or
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(ii) 12 months following termination of the Merger Agreement. Nothing in this
Section 9 shall relieve any party of liability for any breach of this Agreement.
10. Registration Statement. As promptly as reasonably practicable after
the Effective Time, Parent shall file with the SEC, and use its reasonable best
efforts to have declared effective, a "shelf" registration statement that
registers the resale by all of the Stockholders, on a continuous basis for a six
month period, of all of the shares of Parent Common Stock received by the
Stockholders (and any other Stockholder of the Company agreed to by Parent)
pursuant to the Offer and the Merger, including any securities issued as a
dividend or distribution thereon or in exchange or replacement therefor. As
promptly as reasonably practicable after the execution of this Agreement, Parent
and each Stockholder shall enter into a registration rights agreement providing
for the foregoing and containing other customary terms, provisions, exceptions
and limitations.
11. Miscellaneous. (a) Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the transactions contemplated hereby are consummated.
(b) 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 telecopy or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at their addresses as specified on the signature page(s) of
this Agreement. A copy of any such notice, request, claim, demand and other
communication given to Parent or Purchaser shall also be given to Shearman &
Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (Facsimile
Number: 212-848-7179), Attention: Xxxxxxx X. Xxxxx, Esq. and a copy of any such
notice, request, claim, demand and other communication given to the Company or
any Stockholder shall also be given to Xxxxxx, Xxxx & Xxxxxxxx LLP, 0000
Xxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X., 00000-0000 (Facsimile Number:
202-467-0539), Attention: Xxxxxx X. Xxxxx, Esq.
(c) 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, 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 contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, 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 contemplated hereby shall be consummated as
originally contemplated to the fullest extent possible.
(d) This Agreement, the Confidentiality Agreement and the Merger
Agreement constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and undertakings, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
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(e) This Agreement shall not be assigned (whether pursuant to a merger,
by operation of law or otherwise), except that Parent and Purchaser may assign
all or any of their rights and obligations hereunder to any affiliate of Parent,
provided, however, that no such assignment shall relieve the assigning party of
its obligations hereunder if such assignee does not perform such obligations.
(f) This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
(g) The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or in equity.
(h) 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. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any New
York state or federal court sitting in the Borough of Manhattan of The City of
New York. The parties hereto hereby (a) submit to the exclusive jurisdiction of
any state or federal court sitting in the Borough of Manhattan of The City of
New York for the purpose of any Action arising out of or relating to this
Agreement brought by any party hereto, and (b) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such Action, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
Action is brought in an inconvenient forum, that the venue of the Action is
improper, or that this Agreement or the Transactions may not be enforced in or
by any of the above-named courts.
(i) 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 shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
(j) From time to time, at the request of Parent or Purchaser, in the
case of any Stockholder, or at the request of the Stockholders, in the case of
Parent and Purchaser, and without further consideration, each party shall
execute and deliver or cause to be executed and delivered such additional
documents and instruments and take all such further action as may be reasonably
necessary or desirable to consummate the transactions contemplated by this
Agreement.
(k) Each of the parties hereto hereby waives to the fullest extent
permitted by applicable law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated hereby. Each of
the parties hereto (a) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that such other party
would not, in the event of litigation, seek to enforce that foregoing waiver and
(b)
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acknowledges that it and the others hereto have been induced to enter into
this Agreement and the transactions contemplated hereby, as applicable, by,
among other things, the mutual waivers and certifications in this Section 11(k).
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DYCOM INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Address:
XXXX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Address:
ARGUSS COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: President and Chief Executive Officer
Address:
STOCKHOLDERS:
------------
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Address:
By: /s/ DeSoto X. Xxxxxx, Xx.
--------------------------------------------
Name: DeSoto X. Xxxxxx, Xx.
Address:
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Address:
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Address:
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxx
Address:
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Address:
By: /s/ H. Xxxxxxx Xxxxxx, III
--------------------------------------------
Name: H. Xxxxxxx Xxxxxx, III
Address:
EXHIBIT A
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LIST OF STOCKHOLDERS
Number of Shares of Company
Common Stock Owned
Name of Stockholder Beneficially
------------------- ------------
Xxxxxx X. Xxxxxxxxxx 744,970
DeSoto X. Xxxxxx, Xx. -
Xxxxxx X. Xxxxxxxx 120,000
Xxxxxxx X. Xxxxxxx, Xx. 12,000
Xxxxx X. Xxxxx 1,000
Xxxxx X. Xxxxxxx 39,465
H. Xxxxxxx Xxxxxx, III 53,404
------
TOTAL 972,839
