1
EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This employment agreement (the "EMPLOYMENT AGREEMENT") is made
this 27th day of November 2000 (the "EFFECTIVE DATE"), by and between Dennis P.
O'Brien (the "EMPLOYEE") and Dycom Industries, Inc., a Florida corporation (the
"COMPANY"), pursuant to the terms hereof.
1. Employment.
Subject to the terms and conditions hereof, as of the
Effective Date, the Company hereby agrees to employ the Employee as the
Company's Director of Corporate Development. The Employee agrees to perform such
specific duties and accept such responsibilities as the board of directors of
the Company (the "BOARD") and the Chief Executive Officer may from time to time
establish that are reasonably related and consistent with the Employee's
position as a senior officer of the Company. The Employee shall report directly
to the Chief Administrative Officer. The Employee hereby accepts employment by
the Company as Director of Corporate Development, subject to the terms and
conditions hereof, and agrees to devote his full business time and attention to
his duties hereunder, to the best of his abilities.
2. Term of Employment.
The term of the Employee's employment pursuant to the
Employment Agreement shall commence on the Effective Date and shall terminate
upon the earlier of (i) termination pursuant to paragraph 5 hereof or (ii) the
second anniversary of the Effective Date (the "EMPLOYMENT TERM").
3. Compensation, Benefits and Expenses.
(a) During the Employment Term, the Company shall pay the
Employee a base annual salary of $150,000 (the "BASE SALARY"). Payment will be
made on the regularly scheduled pay dates of the Company, subject to all
appropriate withholdings or other deductions required by applicable law or by
the Company's established policies applicable to employees of the Company. The
Board may increase the Base Salary in its sole discretion, but shall not reduce
the Base Salary below the rate established by the Employment Agreement without
the Employee's written consent.
(b) During the Employment Term, the Employee shall be
entitled to participate in the Company's annual incentive plan, under which the
Employee shall be eligible to receive an annual target bonus equal to an amount
between twenty percent (20%) and fifty percent (50%) of Base Salary if certain
performance criteria and measures are satisfied, as determined by and within the
sole discretion of the Board.
(c) The Company shall promptly reimburse the Employee
upon receipt of appropriate documentation for all reasonable and customary
relocation expenses that he may incur in relocating to Palm Beach Gardens,
Florida.
(d) During the Employment Term, in addition to the
compensation payable to the Employee as described above, the Employee shall be
entitled to participate in all the employee benefit plans or programs of the
Company that are available to senior executives of the Company generally and
such other benefit plans or programs in accordance with the terms thereof, as
may be specified by the Board ("EMPLOYEE BENEFITS").
2
(e) As of the Effective Date, the Board shall grant the
Employee options (the "OPTIONS") to acquire 8,000 shares of common stock of the
Company, pursuant to the Company's 1998 Incentive Stock Option Plan (the "OPTION
PLAN"). In addition, during the Employment Term, the Employee shall be eligible
for subsequent annual option grants under the Option Plan, or any such successor
stock option plan, at the time such grants are made under the Option Plan to
management employees of the Company generally, with a targeted grant of between
3,000 to 5,000 shares per year, as determined by and within the sole discretion
of the Board.
(f) During the Employment Term, the Company shall
reimburse the Employee for such reasonable out-of-pocket expenses as he may
incur from time to time for and on behalf of the furtherance of the Company's
business, provided that the Employee submits to the Company satisfactory
documentation or other support for such expenses in accordance with the
Company's expense reimbursement policy.
4. Covenants of the Employee.
(a) The Employee agrees with the Company that, during the
Employment Term, the Employee shall not directly or indirectly, whether as a
proprietor, partner, joint venturer, employer, agent, employee, consultant,
officer or beneficial or record owner of more than one percent (1%) of the stock
of any corporation or association of any nature, engage in any business which is
competitive to the business conducted by the Company, its subsidiaries or its
affiliates (collectively, the "COMPANIES"), in any geographic area in which the
Companies have engaged or will engage during the Employment Term (including,
without limitation, any area in which any customer of the Companies may be
located).
(b) The Employee agrees with the Company that at no time
during the Employment Term, or following his termination of employment with the
Company, will the Employee directly or indirectly divulge to any person, entity
or other organization or appropriate for the Employee's own use or for the use
of others any trade secrets or confidential information or confidential
knowledge pertaining to the business of the Companies (collectively, the
"PROPRIETARY INFORMATION"). The Employee shall retain all copies and extracts of
any written confidential information acquired or developed by him during his
employment for the sole benefit of the Companies. The Employee further agrees
that he will not remove or take from the Companies' premises (or, if previously
removed or taken, he will, at the Company's request, promptly return) any
written confidential information or any copies or extracts thereof. The Employee
shall promptly make all disclosures, execute all instruments and papers, and
perform all acts reasonably necessary to vest and confirm to the Company, fully
and completely, all rights created or contemplated by this paragraph 4(b).
(c) In the event the Employee resigns his employment with
the Company for any reason, or if the Company terminates his employment without
Cause (as defined below), the Employee separately agrees, being fully aware that
the performance of the Employment Agreement is important to preserve the present
value of the property and business of the Company that for a period of twelve
(12) calendar months following such termination or the balance of the Employment
Term, whichever is less (the "RESTRICTED PERIOD"), the 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 (1%) of the stock of any
2
3
corporation or association of any nature which is competitive to the business
conducted by the Companies, in the geographical service area in which the
Companies have engaged or will engage during such period (including, without
limitation, any area in which any such customer of the Companies may be
located).
(d) As a separate and independent covenant, the Employee
agrees with the Company that, for so long as the Employee is employed by the
Company and for the Restricted Period, he will not in any way, directly or
indirectly, for the purpose of conducting or engaging in any competitive
business with the Companies, call upon, solicit, advise or otherwise do, or
attempt to do, business with any person who is, or was, during the then most
recent 12-month period, a customer of the Companies, or solicit, induce, hire,
attempt to hire, interfere with or attempt to interfere with, any person who is,
or was during the then most recent 12-month period, an employee, officer,
representative or agent of the Companies.
(e) The Employee agrees that the breach by the Employee
of any of the foregoing covenants is likely to result in immediate and
irreparable harm, directly or indirectly, to the Companies. The Employee,
therefore, consents and agrees that if the Employee violates any of such
covenants, the Companies shall be entitled, among and in addition to any other
rights or remedies available under the Employment Agreement or at law or in
equity, to temporary and permanent injunctive relief, without bond or other
security, to prevent the Employee from committing or continuing a breach of such
covenants. Such injunctive relief in any court shall be available to the
Companies, in lieu of, or prior to or pending determination in, any arbitration
proceeding.
(f) It is the desire, intent and agreement of the
Employee and the Company that the restrictions placed on the 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.
(g) Except with respect to the equitable relief
contemplated under paragraph 4(e), any controversy or claim arising out of or
relating to the Employment Agreement shall be resolved by arbitration in Palm
Beach County, Florida, 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 jurisdiction thereon. The prevailing party in any
such arbitration proceeding will be reimbursed by the other party hereto for its
reasonable attorney fees and fees and costs incurred attributable to such
arbitration.
5. Termination.
(a) Termination for Cause. The Company shall have the
right to terminate the Employee's employment at any time and for any reason. If
the Employee is terminated for Cause (as defined below), the Company shall not
have any obligation to pay the Employee any Base Salary or other compensation or
to provide any employee benefits subsequent to the date of such Employee's
termination of employment (unless required by applicable law), including,
without
3
4
limitation, Severance Benefits (as defined in paragraph 5(b) hereof).
Termination for "CAUSE" shall mean termination of employment for any of the
following reasons:
(i) The Employee entering a plea of no-contest with
respect to, or being convicted by a court of
competent and final jurisdiction of, any crime,
whether or not involving the Companies, that
constitutes a felony in the jurisdiction involved; or
(ii) any willful misconduct by the Employee that is
injurious to the financial condition or business
reputation of the Company.
(b) Termination Without Cause. Subject to the provisions
of paragraph 5(c), if, prior to the expiration of the Employment Term, the
Company terminates the Employee's employment without Cause, the Company shall,
subject to the Employee's execution of a general release of claims against the
Company in a form satisfactory to the Company, provide the Employee with
Severance Benefits. "SEVERANCE BENEFITS" mean (i) the Base Salary (at the rate
then in effect thirty (30) days prior to such termination) for twelve (12)
months, provided, however, that if the Employee is entitled to more than twelve
(12) months of severance payments pursuant to the Company's severance plan, if
any, he will be entitled to receive the severance payments payable under such
severance plan (such period being referred to hereunder as the "SEVERANCE
PERIOD"), at such intervals as the same would have been paid had the Employee
remained in the active service of the Company, and (ii) the Company shall also
provide the Employee and his eligible dependents with group medical and life
insurance after termination of the Employee's employment without Cause (to the
extent such eligible dependents were participating in the Company's group
medical and life insurance programs prior to the Employee's termination of
employment), until the Employee becomes eligible for similar coverage as the
result of the Employee accepting another position with a new employer or until
the termination of the Severance Period, whichever shall occur first.
(c) Conditions Applicable to Severance Period. If, during
the Severance Period, the Employee breaches any of his obligations under the
Employment Agreement (including, but not limited to, paragraph 4), the Company
may, upon written notice to the Employee terminate the Severance Period and
cease to make any payments or provide the benefits in paragraph 5(b).
(d) Resignation by the Employee. In the event the
Employee resigns his employment with the Company, the Employee: (i) shall
provide the Company with sixty (60) days prior written notice; (ii) shall not
make any public announcements concerning his resignation prior to the
resignation date without the written consent of the Company and (iii) shall
continue to perform faithfully the duties assigned to him under the Employment
Agreement (or such other duties as the Company or Board may assign to the
Employee) from the date of such notice until the termination date. In addition,
in the event the Employee resigns his employment with the Company for any
reason, the Company shall not have any obligation to pay the Employee any Base
Salary or other compensation or to provide any employee benefits subsequent to
the date of such Employee's termination of Employment (unless required by
applicable law), including, without limitation, Severance Benefits (as defined
in paragraph 5(b) hereof).
(e) Termination Upon Death or Disability. Unless
otherwise terminated earlier pursuant to the terms of the Employment Agreement,
the Employee's employment under the Employment Agreement shall terminate upon
his death and may be terminated by the Company
4
5
upon giving not less than thirty (30) days written notice to the Employee in the
event that the Employee, because of physical or mental disability or incapacity,
is unable to perform (or, in the opinion of a physician, is reasonably expected
to be unable to perform) his duties hereunder for an aggregate of one hundred
eighty (180) days during any twelve-month period ("DISABLED"). All questions
arising with respect to whether the Employee is Disabled shall be determined by
a reputable physician mutually selected by the Company and the Employee at the
time such question arises. If the Company and the Employee cannot agree upon the
selection of a physician within a period of seven (7) days after such question
arises, then the Chief of Staff of Good Samaritan Hospital in Palm Beach County,
Florida 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(e) as to such matters shall be conclusively binding upon the parties
hereto.
(f) Termination Upon a Change of Control. In the event of
a "Change of Control," notwithstanding any provisions in the Option Plan or any
successor stock option plan to the contrary, all outstanding Options under the
Option Plan or any successor stock option plan, to the extent not already
vested, shall become fully and immediately vested as of the date of the
occurrence of a Change of Control. For purposes of the Employment Agreement, a
"CHANGE OF CONTROL" shall be deemed to have occurred with respect to the Company
if any one or more of the following events occur:
(i) A tender offer is made and consummated for the
ownership of fifty percent (50%) or more of the
outstanding voting securities of the Company;
(ii) a "person," within the meaning of Section 3(a)9 or
Section 13(d) (as in effect on the date hereof) of the
Securities Exchange Act of 1934, shall acquire fifty
percent (50%) or more of the outstanding voting
securities of the Company;
(iii) substantially all of the assets of the Company are sold
or transferred to another person, corporation or entity
that is not a wholly owned subsidiary of the Company;
or
(iv) a change in the Board such that a majority of the seats
on the Board are occupied by individuals who were
neither nominated by a majority of the directors of the
Company as of the close of business on the Effective
Date nor appointed by directors so nominated.
6. Assignment and Succession.
(a) The services to be rendered and obligations to be
performed by the Employee under the Employment Agreement are special and unique,
and all such services and obligations and all of the Employee's rights under the
Employment Agreement are personal to the Employee and shall not be assignable or
transferable. In the event of the Employee's death, however, the Employee's
personal representative shall be entitled to receive any and all payments then
due under the Employment Agreement.
(b) The Employment Agreement shall inure to the benefit
of and be binding upon and enforceable by the Company and the Employee and their
respective successors, permitted assigns, heirs, legal representatives,
executors, and administrators. If the Company shall be merged into or
consolidated with another entity, the provisions of the Employment Agreement
shall be
5
6
binding upon and inure to the benefit of the entity surviving such merger or
resulting from such consolidation. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
expressly assume and agree to perform the Employment Agreement in the same
manner that the Company 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 Company of the Employee hereunder in the event of any
subsequent merger, consolidation, or transfer of assets of such subsequent
Company.
7. 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,
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 paragraph 7):
if to the Company:
Dycom Industries, Inc.
First Union Center, Suite 500
4440 PGA Boulevard
Palm Beach Gardens, Florida 33410
Attention: Marc R. Tiller
if to the Employee:
Mr. Dennis P. O'Brien
3007 Edmonds Road
Lafayette Hill, Pennsylvania 19444-2001
8. Waiver of Breach.
(a) The waiver by the Company or the Employee of a breach
of any provision of the Employment Agreement shall not operate or be construed
as a waiver by such party of any subsequent breach.
(b) The parties hereto recognize that the laws and public
policies of various jurisdictions may differ as to the validity and
enforceability of covenants similar to those set forth herein. It is the
intention of the parties that the provisions hereof be enforced to the fullest
extent permissible under the laws and policies of each jurisdiction in which
enforcement may be sought, and that the unenforceability (or the modification to
conform to such laws or policies) of any provisions hereof shall not render
unenforceable, or impair, the remainder of the provisions hereof. Accordingly,
if, at the time of enforcement of any provision hereof, a court of competent
jurisdiction holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographic area reasonable under such circumstances will be substituted
for the stated period, scope or geographical area and that such court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and geographical area permitted by law.
6
7
9. Amendment.
The Employment Agreement may be amended only by a written
instrument signed by all parties hereto.
10. Full Settlement.
The Company's obligation to pay the Employee the amounts
required by the Employment Agreement shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right which the Company may
have against the Employee or anyone else. All payments and benefits to which the
Employee is entitled under the Employment Agreement shall be made and provided
without offset, deduction, or mitigation on account of income that the Employee
may receive from employment from the Company or otherwise.
11. Other Severance Benefits.
In consideration for the payments to be made to the Employee
under the Employment Agreement, in the event the Employee receives twelve (12)
months of severance payments pursuant to Section 5(b) of the Employment
Agreement, the Employee agrees to waive any and all rights to any payments or
benefits under any other severance plan, program or arrangement of the
Companies.
12. Governing Law; Jurisdiction and Service of Process.
The Employment Agreement shall be governed by the laws of the
State of Florida applicable to contracts executed in and to be performed in that
State.
13. Authority to Enter into Employment Agreement.
The Employee represents and warrants that he is not subject to
any employment agreements, non-competition agreements or any other agreement or
understanding, whether or not in writing, that would prevent him from entering
into the Employment Agreement and performing the duties hereunder.
14. Partial Invalidity.
The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
15. Withholding.
The payment of any amount pursuant to the Employment Agreement
shall be subject to applicable withholding and payroll taxes, and such other
deductions as may be required under the Company's employee benefit plans, if
any.
7
8
16. Counterparts.
The Employment Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instruments.
17. Entire Agreement.
All prior negotiations and agreements between the parties
hereto with respect to the matters contained herein are superseded by the
Employment Agreement, and there are no representations, warranties,
understandings or agreements other than those expressly set forth herein.
IN WITNESS WHEREOF, the parties have entered into this
Employment Agreement as of the date set forth above.
DYCOM INDUSTRIES, INC.
By: /s/ Steven E. Nielsen
------------------------------------------
Name: Steven E. Nielsen
Title: President and Chief Executive Officer
/s/ Dennis P. O'Brien
---------------------------------------------
Dennis P. O'Brien, individually
8