EMPLOYMENT AGREEMENT
This Employment Agreement is made this 29th day of July, 1997,
between Xxxxxx Xxxxx ("Employee"), Communications Construction
Group, Inc. ("Employer") and Dycom Industries, Inc. ("Dycom").
1. Employment and Board of Directors. Subject to the terms
and conditions hereof, Employer hereby agrees to continue to employ
employee as Employer's Executive Vice President to perform such
specific duties and have such responsibilities as Employer's Board
of Directors may from time to time establish; provided, however,
that such duties shall be consistent with the duties and
responsibilities typically accorded to an executive vice president.
Employee hereby accepts continued employment by Employer as
Executive Vice President of Employer, subject to the terms and
conditions hereof, and agrees to continue to devote his full time
and attention to his duties hereunder, to the best of his abilities
consistent with prior practice. The Board of Directors of Employer
shall be four (4) in number, consisting of Employee, Xxxxxx Xxxxxx,
Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx, who shall each have one
(1) vote.
2. Term of Employment. Employee's employment pursuant to
this Employment Agreement shall commence on the date hereof and
shall terminate upon the earlier of (a) termination pursuant to
paragraph 5 hereof or (b) five (5) years from the date hereof,
unless terminated by mutual agreement of the parties hereto after
the first three years (3) of employment.
3. Compensation, Benefits and Expenses.
(a) At the commencement of this Employment Agreement,
Employee shall be paid a base annual salary of $260,000. Payment
will be made on the regularly scheduled pay dates of the Employer,
subject to all appropriate withholdings or other deductions
required by law or by Employer's established policies applicable to
all employees of the Employer. Employer may increase Employee's
salary at Employer's sole discretion, but shall not reduce such
salary below the rate established by this Employment Agreement
without Employee's written consent.
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(b) During the term of employment, Employer shall
provide Employee with all the benefits and perquisites, without
limitation, that Employee received from Employer prior to its
acquisition by Dycom.
(c) In addition to any other compensation payable to
Employee pursuant to this Employment Agreement, Employee during the
term of this Employment Agreement may be paid an annual bonus as
determined by and within the sole discretion of Dycom's Board of
Directors.
(d) Employee's services hereunder shall be performed at
the principle offices of the Employer in West Chester, Pennsylvania
and West Palm Beach, Florida, subject to such reasonable travel as
the performance of Employee's duties and the business of Employer
may require consistent with prior practice.
(e) In addition to compensation payable to Employee as
described above, Employee shall be entitled to participate in all
employee benefit plans or programs of Employer as are available to
management employees of Employer generally and such other benefit
plans or programs as may be specified by the Employer's Board of
Directors, including any stock options that may be granted by the
Board of Directors of Dycom. Employer hereby waives Employee's
waiting period for eligibility under its medical benefits plan.
(f) On a timely basis, Employer shall reimburse Employee
for such reasonable out-of-pocket expenses as Employee may incur
for and on behalf of the furtherance of Employer's business,
provided that Employee submits to Employer satisfactory
documentation or other support for such expenses in accordance with
Employer's expense reimbursement policy.
4. Covenants of Employee.
(a) During the term of this Employment Agreement,
Employee shall not directly or indirectly engage in any business,
whether as a 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 to the business conducted by
Employer, Dycom, or any of Dycom's other wholly owned subsidiaries.
(b) During the term of this Employment Agreement,
Employee will not divulge or appropriate to Employee's own use or
to the use of others any trade secrets or confidential information
or confidential knowledge pertaining in any to the business of
Employer, Dycom or any of Dycom's other wholly owned subsidiaries.
(c) In the event Employee breaches this Employment
Agreement or if Employee's employment is terminated pursuant to
paragraph 5(a) of this Employment Agreement, and Employer and/or
Dycom has not breached this Employment Agreement or any other
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agreement with Employee, Employee separately agrees, being fully
aware that the performance of this Employment Agreement is
important to preserve the present value of the property and
business of Employer and Dycom, that for the greater of (i) twelve
(12) calendar months following the date of such termination or (ii)
the unexpired portion of the first three (3) years of this
Employment Agreement, Employee shall not 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
to the business conducted by Employer or any of Dycom's other
wholly owned subsidiaries in the current geographical service area
of Employer or in any other geographical service area of Employer
or any of Dycom's other wholly owned subsidiaries during the term
of Employee's employment. Within such geographical service areas
and during such non-compete period, Employee shall not solicit or
do business competitive to the business conducted by Employer or
any of Dycom's other wholly owned subsidiaries, with any customers,
partners or associates of Employer or any of Dycom's other wholly
owned subsidiaries.
(d) Employee agrees that the breach by Employee of any
of the foregoing covenants is likely to result in irreparable harm,
directly or indirectly, to Employer and Dycom. Employee,
therefore, consents and agrees that if Employee violates any of
such covenants, Employer and Dycom shall be entitled, among and in
addition to any other rights or remedies available under this
Employment Agreement or at law or in equity, to temporary and
permanent injunctive relief to prevent Employee from committing or
continuing a breach of such covenants.
(e) It is the desire, intent and agreement of Employee,
Employer and Dycom that the restrictions placed on Employee by this
paragraph 4 be enforced to the fullest extent permissible under the
law and public policy applied by any jurisdiction in which
enforcement is sought. Accordingly, if and to the extent that any
portion of this paragraph 4 shall be adjudicated to be
unenforceable, such portion shall be deemed amended to delete
therefrom or to reform the portion thus adjudicated to be invalid
or unenforceable, such deletion or reformation to apply only with
respect to the operation of such portion in the particular
jurisdiction in which such adjudication is made.
(f) Any controversy or claim arising out of or relating
to this Employment Agreement shall be settled by arbitration in
Philadelphia County, Pennsylvania, in accordance with the rules
then in effect of the American Arbitration Association, and
judgment upon the award rendered may be entered in any court having
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jurisdiction thereon. The arbitrator(s) shall have the right and
ability to award attorneys' fees to the prevailing party in any
such arbitration proceeding.
5. Termination.
(a) Employer shall have the right to terminate
Employee's employment at any time for cause for any of the
following reasons:
(i) Employee is convicted by a court of competent
and final jurisdiction of any crime, whether or not
involving Employer, that constitutes a felony in the
jurisdiction involved;
(ii) Employee commits any act of fraud,
misappropriation, embezzlement, unethical business
conduct or other act of dishonesty against Employer, or
shall materially breach a fiduciary obligation thereto;
and/or
(iii) Employee materially breaches this Employment
Agreement or fails or refuses to perform any of his
material duties as required by this Employment Agreement
in any material respect.
Notwithstanding the provisions of this paragraph 5(a) and/or
termination thereunder, Employer and Dycom shall pay to Employee
his total compensation for a minimum of the first three (3) years
of this Agreement without limitation including all benefits and
perquisites.
(b) Unless otherwise terminated earlier pursuant to the
terms of this Employment Agreement, Employee's employment under
this Employment Agreement will terminate upon Employee's death and
may be terminated by Employer or Employee upon giving not less than
thirty (30) days written notice to the other in the event that
Employee, because of physical or mental disability or incapacity,
is unable to perform Employee's duties hereunder for an aggregate
of 180 working days during any 12-month period. All questions
arising under this Employment Agreement as regards Employee's
disability or incapacity shall be determined by a reputable
physician mutually selected by Employer and Employee at the time
such question arises. If Employer and Employee cannot agree upon
the selection of a physician within a period of seven days after
such question arises, then the chief of staff of University of
Pennsylvania Hospital, Philadelphia, Pennsylvania shall be asked to
select a physician to make such determination. The determination
of the physician selected pursuant to the above provisions of this
paragraph 5(b) as to such matters shall be conclusively binding
upon the parties hereto. Notwithstanding the provisions of this
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paragraph 5(b) and/or termination thereunder, Employer and Dycom
shall pay to Employee his total compensation for a minimum of the
first three (3) years of this Agreement without limitation
including all benefits and perquisites.
(c) Employee may terminate this Employment Agreement if
Employer materially breaches this Employment Agreement or any other
agreement with Employee. For purposes of this paragraph 5, the
Employer shall be deemed to have materially breached this
Employment Agreement if (i) Employer fails to pay any portion of
the compensation or provide Employee any employee benefit due
Employee hereunder, (ii) Employer discharges Employee without
cause, (iii) Employer materially breaches any other agreement with
Employee or (iv) Employer materially and inappropriately changes
the duties and responsibilities of Employee. If Employee shall
terminate this Employment Agreement as provided in this paragraph
5(c) then, provided that Employer does not also have grounds to
terminate this Employment Agreement for cause as defined in
paragraph 5(a) hereof, Employee shall not be liable to Employer
for any damages as a result thereof and shall not be bound by the
provisions of paragraph 4(c) hereof.
(d) In the event Employer terminates Employee's
employment without cause as defined in paragraph 5(a) hereof,
Employee shall receive as damages for breach of this Employment
Agreement an amount equal to the total compensation Employee would
have received had employment continued for the first thirty-six
(36) month term of this Employment Agreement.
6. Assignment and Succession.
(a) The services to be rendered and obligations to be
performed by Employee under this Employment Agreement are special
and unique, and all such services and obligations and all of
Employee's rights under this Employment Agreement are personal to
the Employee and shall not be assignable or transferrable. In the
event of Employee's death, however, Employee's personal
representative shall be entitled to receive any and all payments
then due under this Employment Agreement. Employer may assign this
Employment Agreement to any subsidiary of the Employer or in
connection with any merger or consolidation involving the Employer
or a sale of substantially all of the assets of the Employer, as
the case may be, provided that such successor shall assume (by
contract or operation of law) all of Employer's obligations
hereunder. In such event, Employee shall have the right to
terminate this Employment Agreement and Employer and Dycom shall
pay to Employee his total compensation for a minimum of the first
three (3) years of this Agreement without limitation including all
benefits and perquisites.
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(b) This Employment Agreement shall inure to the benefit
of and be binding upon and enforceable by the Employer, Dycom and
the Employee and their respective successors, permitted assigns,
heirs, legal representatives, executors, and administrators. If
the Employer or Dycom shall be merged into or consolidated with
another entity, the provisions of the Employment Agreement shall be
binding upon and inure to the benefit of the entity surviving such
merger or resulting from such consolidation. The Employer and Dycom
will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Employer or
Dycom, by agreement in form and substance satisfactory to the
Employee, to expressly assume and agree to perform this Employment
Agreement in the same manner that the Employer would be required to
perform it if no such succession had taken place. The provisions
of this paragraph 6(b) shall continue to apply to each subsequent
employer of the Employee hereunder in the event of any subsequent
merger, consolidation, or transfer of assets of such subsequent
employer.
7. Notices.
Any notice, request or other communication to be given by any
party to this Employment Agreement shall be in writing and be sent
by certified mail, postage prepaid, addressed to the parties as
follows:
If to Employer or Dycom:
Xx. Xxxxxx X. Xxxxxxx
Dycom Industries, Inc.
First Union Center
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
with copies to:
L. Xxxxx Xxxxxx, Esq.
Chopin, Xxxxxx & Yudenfreund
000 Xxxxx Xxxx Xxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
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If to Employee:
Xx. Xxxxxx Xxxxx
Communications Construction Group, Inc.
000 Xxxx Xxx Xxxxxx
X.X. Xxx 000
Xxxx Xxxxxxx, XX 00000
with copies to:
Xxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx and Xxxxxx
Union Meeting Corporate Center V
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
or to such other address as the parties respectively may designate
by notice given in like manner, and any such notice, request or
other communication shall be deemed to have given when mailed as
described above.
8. Waiver of Breach.
The waiver by Employer, Dycom or Employee of a breach of any
provision of this Employment Agreement by another party shall not
operate or be construed as a waiver by any other party of any
subsequent breach.
9. Amendment.
This Employment Agreement may be amended only by written
instrument signed by all parties hereto.
10. Governing Law.
This Employment Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without giving effect to choice of law
principles.
11. Partial invalidity.
The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other
provision.
12. Entire Agreement
All prior negotiations and agreements between the parties
hereto with respect to the matters contained herein are superseded
by this Employment Agreement, and there are no representations,
warranties, understandings or agreements other than those expressly
set forth herein.
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IN WITNESS WHEREOF, the parties have entered into this
Employment Agreement as of the date set forth above.
COMMUNICATIONS CONSTRUCTION
GROUP, INC.
By: /s/ Xxxxxx Xxxxx
Title:
DYCOM INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Individually
