FORM OF DIRECTOR RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT, dated as of the __th day of December 2006, between
DYCOM INDUSTRIES, INC., a Florida corporation (the "Company"), and
________________ (the "Participant").
WHEREAS, the Participant is a non employee director of the board of
directors of the Company (the "Board") and, subject to the terms and conditions
set forth herein, the Board desires to defer receipt of the Supplemental Annual
Retainer awarded to the Participant for his service on the Board for the 2007
fiscal year by granting the Participant a certain number of restricted stock
units ("RSUs") entitling the Participant to receive shares of common stock, par
value $0.331/3 per share, of the Company (the "Common Stock") under the Company
2002 Directors Restricted Stock Plan (the "Plan");
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Definitions; Incorporation of Plan Terms.
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Plan. This Award Document and the RSUs shall be
subject to the Plan, the terms of which are incorporated herein by reference,
and in the event of any conflict or inconsistency between the Plan and this
Award Document, the Plan shall govern.
2. Grant of RSUs.
Subject to the terms and conditions contained herein and in the Plan,
the Company hereby grants the Participant the number of RSUs specified at the
foot of the signature page hereof. Each RSU will entitle the Participant to one
share of Common Stock. The actual number of shares of Common Stock that the
Participant receives will be subject to the terms and conditions of the Plan and
this Award Document. For purposes of the Plan and this Award Document, the Date
of Grant is the date specified at the foot of the signature page hereof.
3. Vesting of RSUs.
(a) Unless previously vested or forfeited in accordance with the terms
and conditions contained herein and in the Plan, the RSUs shall vest and become
non-forfeitable in three equal annual installments as follows: (i) 1/3 will vest
on December 14, 2007, (ii) 1/3 will vest on December 14, 2008 and (iii) the
remaining 1/3 will vest on December 14, 2009 (each, a "Vesting Date"), provided
that the Participant is a member of the Board on the applicable Vesting Date.
Notwithstanding the foregoing, in the event that the Participant (i) is
not nominated for (other than a termination of service at the request of the
Board), or elected by shareholders to, an additional term as a member of the
Board or (ii) terminates his service as a member of the Board with the consent
of the Board, any unvested RSUs will be fully and immediately vested on such
date that the Participant is no longer a member of the Board. If the
non-employee director terminates his service as a member of the Board for any
other reason, any unvested RSUs will be cancelled and forfeited without any
payment.
(b) Pursuant to such procedures established by the Administrator, the
Company will issue the Participant shares of Common Stock in settlement of the
vested portion of the RSUs in whole shares of Common Stock (rounded up or down
to the nearest whole share). The number of shares issued to the Participant (if
any) shall equal the number of shares of Common Stock representing the vested
portion of the RSUs receivable by such Participant following the applicable
Vesting Date.
4. Termination of Service.
Except to the extent otherwise provided by the Plan or this Award
Document, in the event of the Participant's termination of service from the
Board for any reason prior to an applicable Vesting Date, the Participant shall
immediately forfeit all unvested RSUs as of the date of such termination.
5. Nontransferability of the RSUs.
Unless determined otherwise by the Administrator, RSUs may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner;
provided, however, that RSUs shall be transferable, in whole or in part, with
the written consent of the Administrator, to trusts established wholly or in
part for the benefit of the Participant's immediate family members. Such
transfers are subject to the terms and conditions of the Plan and this Award
Document. Subject to the Company's shareholding requirement, the restrictions on
transferability set forth above shall not apply to RSUs after the date that such
RSUs becomes vested and non-forfeitable as set forth herein.
6. Rights as a Stockholder.
No shares of Common Stock represented by the RSUs will be earmarked for
the Participant or his account. The Participant will have no rights as a
shareholder with respect to any RSU until the shares of Common Stock underlying
the RSU have been issued to such Participant following the applicable Vesting
Date, and no adjustment shall be made for dividends or distributions or other
rights in respect of any shares of Common Stock until such time as the shares
are delivered to the Participant in accordance with this Award Document. Upon
issuance of the shares of Common Stock as of a Vesting Date, the Participant
will be the owner of record of such shares and will be entitled to all of the
rights of a stockholder of the Company, including the right to vote and the
right to receive dividends.
7. Taxes and Withholdings.
The Company may require the Participant to remit to the Company, prior
to the issuance of shares of Common Stock, an amount sufficient to satisfy any
federal, state or local tax withholding requirements. If the Company shall be
required to withhold any amounts by reason of any federal, state or local tax
rules or regulations in respect of the issuance of shares of Common Stock, the
Participant shall pay to the Company or make arrangements satisfactory to the
Administrator regarding the payment of any federal, state or local taxes of any
kind required
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by law to be withheld with respect to such amounts. The obligation of the
Company under this Award Document shall be conditional upon such payment or
arrangements and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
Participant.
8. Notices.
All notices and other communications under this Award Document will be
in writing and will be given by hand delivery to the other party or by
facsimile, first class mail, overnight courier, or registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Participant:
at the last known address on record at the Company.
If to the Company:
11770 U.S. Highway 1
Suite 101
Palm Beach Gardens, Florida 33408
Attention: General Counsel
or to such other address or facsimile number as any party shall have furnished
to the other in writing in accordance with this Section 8. Notice and
communications shall be effective when actually received by the addressee.
9. Successor.
Except as otherwise provided hereunder, this Award Document shall be
binding upon and shall inure to the benefit of any successor or successors of
the Company, and to any transferee or successor of the Participant pursuant to
Section 5.
10. Governing Law.
The interpretation, performance and enforcement of this Award Document
shall be governed by the laws of the State of Florida without reference to
principles of conflict of laws, as applied to contracts executed in and
performed wholly within the State of Florida.
11. Severability.
If any provision of this Award Document is held to be illegal or
invalid for any reason, such illegality or invalidity will not affect the
remaining provisions of this Award Document, but this Award Document shall be
construed and enforced as if such illegal or invalid provision had never been
included herein.
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12. Corporate Changes; Changes in Capitalization.
(a) Neither the Plan or this Award Document shall affect or restrict in
any way the right or power of the Company or its shareholders to make or
authorize any adjustment, recapitalization, reorganization or other change in
the capital structure or business of the Company, or any merger or consolidation
of the Company, or any issue of stock or of options, warrants or rights to
purchase stock or of bonds, debentures, preferred or prior preference stocks
whose rights are superior to or affect the Common Stock or the rights thereof or
which are convertible into or exchangeable for Common Stock (including, without
limitation, the RSUs), or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of the assets or business of the Company, or
any sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
(b) The number and kind of shares authorized for issuance under the
Plan, including the maximum number of shares available under the Plan, may be
equitably adjusted in the sole discretion of the Administrator in the event of a
stock split, stock dividend, recapitalization, reorganization, merger,
consolidation, extraordinary dividend, split-up, spin-off, combination, exchange
of shares, warrants or rights offering to purchase Common Stock at a price
substantially below Fair Market Value or other similar corporate event affecting
the Common Stock in order to preserve, but not increase, the benefits or
potential benefits intended to be made available under the Plan. In addition,
upon the occurrence of any of the foregoing events, the number of RSUs will be
equitably adjusted (including by payment of cash to the Participant) in order to
preserve the benefits or potential benefits intended to be made available to the
Participant with respect to such RSUs. The determination as to what adjustments
shall be made in order to preserve the benefits or potential benefits intended
to be made available to the Participant with respect to such RSUs shall be made
by the Administrator, in its sole discretion, and such determination shall be
final and binding on all parties. Unless otherwise determined by the
Administrator, such adjusted RSUs shall be subject to the same restrictions and
vesting or settlement schedule to which it is subject.
13. Exchange Act.
Notwithstanding anything contained in the Plan or this Award Document
to the contrary, if the consummation of any transaction under the Plan or this
Award Document would result in the possible imposition of liability on the
Participant pursuant to Section 16(b) of the Exchange Act, the Administrator
shall have the right, in its sole discretion, but shall not be obligated, to
defer such transaction to the extent necessary to avoid such liability, but in
no event for a period in excess of 180 days.
14. Compliance with Code Section 409A.
Payments of shares of Common Stock under this Agreement shall be made
in accordance with the provisions of Code Section 409A and, to the extent that
such payments are made in connection with the Participant's termination of
employment, may be delayed for six
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months and one day to the extent the Administrator determines that such delay is
necessary or advisable to comply with the provisions of Code Section 409A.
15. Amendment.
Notwithstanding anything herein to the contrary, the Board may, at any
time, amend or modify this Award Document; provided, however, that no amendment
or modification of this Award Document shall adversely alter or affect the terms
of any then outstanding RSUs without the consent of the Participant.
Notwithstanding the foregoing, the Board has the right, without the
Participant's written consent, to amend or modify the terms of the Plan or this
Award Document to the extent the Board deems necessary or advisable to comply
with Code Section 409A. The waiver by either party of compliance with any
provision of this Award Document shall not operate or be construed as a waiver
of any other provision of this Award Document, or of any subsequent breach by
such party of a provision of this Award Document.
16. No Rights to Future Awards or Continued Employment.
The Participant shall not have any claim or right to receive or be
eligible to receive any additional Awards under the Plan. Neither the Plan nor
this Award Document nor any action taken or omitted to be taken hereunder or
thereunder shall be deemed to create or confer on the Participant any right to
be continue as a director of the Company or any Subsidiary or shall interfere in
any way with the right of the Board or the stockholders of the Company, or the
board of directors or stockholders (including the Company) of any Subsidiary, to
terminate such status at any time, with or without cause and with or without
notice, except as otherwise provided by the certificate of incorporation or
by-laws of the Company or such Subsidiary or applicable law
17. Entire Agreement.
This Award Document and the Plan set forth the entire agreement and
understanding between the parties hereto with respect to the matters covered
herein, and supersede all prior agreements and understandings concerning such
matters. This Award Document may be executed in one or more counterparts, each
of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same agreement. The headings of sections and
subsections herein are included solely for convenience of reference and shall
not affect the meaning of any of the provisions of this Award Document.
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IN WITNESS WHEREOF, the Company has caused this Award Document to be
executed by its duly authorized officer and the Participant has executed this
Award Document, both as of the day and year first above written.
DYCOM INDUSTRIES, INC.
By:
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Name:
Title:
PARTICIPANT
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Name:
Address:
Number of Restricted Stock Units:
Date of Grant:
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