REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 31, 1999 (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").
WHEREAS, Dycom Acquisition Corporation III, a Kentucky
corporation and wholly owned subsidiary of the Company ("Merger Sub") will be
merged with and into Apex Digital TV, Inc., a Kentucky corporation ("Apex"),
pursuant to an Agreement and Plan of Merger dated as of March 12, 1999 among the
Company, Merger Sub, Apex and the Purchasers (the "Merger Agreement");
WHEREAS, the Company and several of the Purchasers have
entered into a Stock Purchase Agreement dated as of March 12, 1999 (the "Stock
Purchase Agreement") providing for the purchase of all of the outstanding common
stock of Ervin Cable Construction, Inc. ("Ervin") by the Company;
WHEREAS, the Purchasers will receive Common Stock pursuant to
the Merger Agreement and the Stock Purchase Agreement; and
WHEREAS, it is a condition to the obligations of the parties
to each of the Merger Agreement and the Stock Purchase Agreement that this
Agreement be entered into by the parties hereto concurrently with the closing
thereunder.
NOW, THEREFORE, in consideration of the foregoing and the
mutual convenants 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 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.
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"Agreement" has the meaning set forth in the preamble to
this agreement.
"Apex" has the meaning set forth in the recitals to this
Agreement.
"Common Stock" means the common stock, par value $0.33 1/4
per share, of the Company.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Ervin" has the meaning set forth in the recitals to this
Agreement.
"Escrow Shares" means those shares of the Common Stock held
in escrow pursuant to the Agreement and Plan of Merger, dated as
of March 12, 1999, among the Purchasers, the Company, Apex
Digital TV, Inc. and Dycom Acquisition Corporation III, a wholly
owned subsidiary of the Company.
"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 the Purchaser or any assignee thereof to whom
the rights under this Agreement are assigned in accordance with
the provisions of Section 15.
"Initiating Holders" has the meaning set forth in Section
3(a).
"Maximum Amount" has the meaning set forth in Section 3(a).
"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.
"Minimum Demand Amount" means the amount of shares equal to
$5,000,000 divided by the Proposed Maximum Offering Price Per
Share.
"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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"Proposed Maximum Offering Price Per Share" means the price
per share of Common Stock calculated in accordance with Rule
457(c).
"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 or the Stock Purchase
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 the Stock Purchase Agreement,
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 pursuant to the terms hereof
or (3) such Registrable Stock is sold pursuant to Rule 144(k) (or
any similar provision then in force under the Securities Act)
without registration under the Securities Act.
"Registration Demand" has the meaning set forth in Section
3(a).
"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.
"Stock Purchase Agreement" has the meaning set forth in the
preamble to this Agreement.
2. Notice of Proposed Transfer; Transfer Restrictions on
Escrow Shares.
(a) Prior to any proposed transfer 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 transfer. Each such notice
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shall describe the manner of the proposed transfer and, if
requested by the Company, shall be accompanied by an opinion of
counsel, which opinion is in form and substance satisfactory to
the Company to the effect that the proposed transfer may be
effected without registration under the Securities Act, whereupon
the holder of such stock shall be entitled to transfer such stock
in accordance with the terms of its notice. Each certificate for
Registrable Stock transferred as provided above shall bear the
legend required pursuant to Section 7.09 of the Merger Agreement
or 6.09 of the Stock Purchase Agreement, as applicable, except
that such certificate shall not bear such legend if (i) such
transfer 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 to above
is to the further effect that the transferee and any subsequent
transferee (other than an Affiliate of the Company) would be
entitled to transfer such securities in a public sale without
registration under the Securities Act.
(b) Notwithstanding the provisions of Section 2(a) of this
Agreement, the Purchasers shall not transfer, sell, pledge, gift
or bequeath any Escrow Shares without the written consent of the
Company, which consent shall not be unreasonably withheld.
3. Demand for Registration.
(a) On and after the date that is six (6) months from the
date of this Agreement, the Holders of at least 331/3% of the
Registrable Stock (the "Initiating Holders") may demand in a
written notice (the "Registration Demand") 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 aggregate
amount of Registrable Stock to be included in such registration
shall be equal to at least the Minimum Demand Amount, but not
more than 50% (the "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 proviso of the immediately
preceding sentence, all Registrable Stock that the Initiating
Holders and such other Holders have demanded, within forty (40)
days after the Company has received the Registration Demand, be
registered in accordance with the manner of disposition specified
in such notice by the Initiating Holders.
(b) Notwithstanding any provision of this Agreement to the
contrary:
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(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 under any other registration
rights agreement which the Holders have been entitled
to join pursuant to Section 4; 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.
(c) 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) 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. Subject to Sections 7 and 9, if
at any 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, 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. Upon the written request of any Holder received
by the Company no later than ten (10) 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
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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 be equal to at least the Minimum Amount but not more than the
Maximum Amount. If, in the opinion of the managing underwriter (or, in the case
of a non-underwritten offering, in the opinion of the Company), the total amount
of such securities to be so registered, including such Registrable Stock, will
exceed the maximum amount of the Company's securities which can be marketed (a)
at a price reasonably related to the then current market value of such
securities, or (b) without otherwise materially and adversely affecting the
entire offering, then the Company shall be entitled to reduce the number of
shares of Registrable Stock to be registered in such offering. Any reduction
made pursuant to the immediately preceding sentence shall be made pro rata among
any such Holders and any other security holders of the Company registering
securities in such registration.
5. Obligations of the Company. Whenever required under Section
3 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
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 or to file a
general
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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) furnish, at the request of any Holder demanding
registration of Registrable Stock pursuant to Section 3, 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 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
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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;
(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; and
(j) shall use its reasonable efforts to cause such
Registration Statement (i) to become effective as soon as
possible after the filing thereof and (ii) to remain effective,
with a prospectus at all times meeting the requirements of the
Securities Act for so long as a prospectus may be required to be
delivered pursuant to the Securities Act.
For purposes of Sections 5(a) and 5(b), the period of distribution of
Registrable Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable Stock
in any other registration shall be deemed to extend until the earlier of the
sale of all Registrable Stock covered thereby and six (6) months after the
effective date thereof.
6. Suspension of Registration Statement. The Company may
suspend the availability of any registration statement filed by the Company
referred to in Section 3 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
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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 and
expenses of counsel for the selling Holders, 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 the fees
and disbursements, in an amount not to exceed $5,000, of one counsel for the
selling Holders (which counsel shall be selected by the Holders holding a
majority in interest of the Registrable Stock being registered), shall be paid
by the Company. 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 Section 4 to
include shares of Registrable Stock in such underwritten offering unless the
Holders of such shares of Registrable Stock accept the terms of the underwriting
of such offering that have been agreed upon between the Company and the
underwriters selected by the Company.
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;
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(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.
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 and each Person, if
any, who controls such Holder 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 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
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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 10(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
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 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 or controlling Person, and shall
survive the transfer of such securities by such Holder. The
indemnification as provided in this Section 10(a) shall be
separate from, and in addition to, the indemnification provided
in the Merger Agreement or the Stock Purchase Agreement.
(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 Person, if any,
who controls the Company within the meaning of the Securities
Act, and each agent and any underwriter for the Company (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,
controlling Person, agent or underwriter (but not in excess of
expenses incurred in
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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 10(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 10(c) 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 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
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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) was
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 fifteen months after the date of
this Agreement.
13. No Inconsistent Agreements. The Company agrees that it
will not during the term of this Agreement enter into any agreement with respect
to its securities which is inconsistent with the rights granted to the Holders
under this Agreement.
14. 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, 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, disposition or
distribution of any Registrable Stock under the circumstances and pursuant to
the terms set forth in this Section 14.
15. 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; 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
14
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 15 shall cause
such Registrable Stock to lose such status.
16. Binding Effect; Benefit. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. 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.
17. 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 shall
be brought in the courts of the State of Delaware located in Wilmington or in
the United States District Court for the District of Delaware. By execution and
delivery of this Agreement, each of the parties hereto 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 20.
18. 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.
19. 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.
20. 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 20):
15
if to the Company:
Dycom Industries, Inc.
First Union Center,
Suite 600
4440 PGA Boulevard
Palm Beach Gardens, Florida 33410-6542
Telecopier: (561) 627-7709
Attention: Mr. Steven Nielsen
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopier: (212) 848-7179
Attention: Richard B. Vilsoet, Esq.
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 White
and Williams, L.L.P., 1800 Liberty Place, Philadelphia, PA 19103, Telecopier:
(215) 864-7123, Attention M. Melvin Shralow.
21. 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 each party to this Agreement, 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.
22. 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, 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, 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.
16
23. 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.
24. 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 attorneys' fees and costs incurred in such proceeding.
25. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
DYCOM INDUSTRIES, INC.
By /s/ Steven Nielsen
------------------------------------------
Name: Steven Nielsen
Title: President and Chief Executive Officer
GARY E. ERVIN,
in his individual capacity
/s/ GARY E. ERVIN
---------------------------------------------
TIMOTHY W. ERVIN,
in his individual capacity
/s/ TIMOTHY W. ERVIN
---------------------------------------------
ROBERT W. ERVIN,
in his individual capacity
/s/ ROBERT W. ERVIN
---------------------------------------------
KEITH E. WALKER,
in his individual capacity
/s/ KEITH E. WALKER
---------------------------------------------
ROBERT J. CHASTAIN,
in his individual capacity
/s/ ROBERT J. CHASTAIN
---------------------------------------------
CHARLES T. MCELROY,
in his individual capacity
/s/ CHARLES T. MCELROY
---------------------------------------------
PENNY J. WARD,
in her individual capacity
/s/ PENNY J. WARD
---------------------------------------------