EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT , dated as of May 26, 2005
(the “ Agreement ”), between Dycom
Industries, Inc., a Florida corporation, which includes any and all
of its subsidiaries or affiliates (collectively, the “
Company ”) and Michael K. Miller (the “
Executive ”).
WHEREAS , the Executive is currently employed by the
Company;
WHEREAS , the Company and the Executive have agreed that the
Executive will become a consultant to the Company, effective as of
July 11, 2005;
WHEREAS , the parties intend that this Agreement shall set
forth the terms regarding the Executive’s consulting services
to the Company; and
NOW, THEREFORE , in consideration of the covenants and
agreements hereinafter set forth in this Agreement, the parties
hereto hereby agree as follows:
1.
Consulting Engagement .
(a)
General . The Executive and the Company agree that as of
July 10, 2005 (the “ Effective Date
”) the Company will engage the Executive as a consultant, and
the Executive hereby accepts such engagement with the Company, for
the period set forth in Section 1(b) of this Agreement in
accordance with the terms and conditions hereof. The Company and
the Executive agree that, effective as of the Effective Date, the
Executive shall cease to be an employee of the Company and will
have no offices, positions and capacities with the
Company.
(b)
Consulting Period . The period during which the Executive
shall be engaged as a consultant by the Company (the “
Consulting Period ”) shall commence on the
Effective Date and end on March 11, 2006.
(c)
Consulting Services . The Executive shall provide consulting
services to the Company on a non-exclusive basis. During the
Consulting Period, the Executive agrees to make himself available
to the Company at such times (taking reasonable account of the
Executive’s other time commitments) and places and in such
manner as shall be reasonably determined by the Chief Executive
Officer of the Company. Notwithstanding the foregoing, in the event
the Executive obtains full time employment during the Consulting
Period, the Executive will only be required to make himself
available the Company by telephone at such times (taking into
account the Executive’s other time commitments, including,
without limitation, his duties to any subsequent employer) as shall
be mutually determined by the Chief Executive Officer of the
Company and the Executive.
(d)
Consulting Fees . In consideration for the consulting
services provided pursuant to this Agreement, the Company shall pay
the Executive an aggregate of $161,500, in substantially equal
installments for the period beginning on the Effective Date and
ending on March 11, 2006.
Such payments shall be made as
soon as practicable following the end of the month to which the
payment relates, but not later than fifteen (15) days
following the end of such month.
(e) COBRA
Continuation Benefits . As of the Effective Date, the Executive
shall be eligible to continue participation under the
Company’s group health insurance plan to the extent permitted
under Section 4980B(f) of the Internal Revenue Code of 1986,
as amended (“ COBRA ”). The Company shall
reimburse the Executive for his COBRA premiums to the extent of the
Company’s contribution to the group health insurance plan
premiums for then current employees of the Company, until the
earlier of (x) the date the Executive becomes eligible for
group health insurance coverage as the result of his accepting
employment with a subsequent employer or (y) June 11,
2006. The Executive agrees to give the Company notice within 10
business days following the date he becomes eligible for group
health insurance coverage with a subsequent employer.
2.
Termination of Prior Agreements and Understandings . Except
as expressly provided herein, as of the Effective Date, any written
or oral agreements or understandings between the Executive and the
Company are void and of no further force and effect and this
Agreement shall supersede all prior agreements or understandings
between the Executive and the Company.
3. No
Other Benefits . As of the Effective Date, the Executive shall
not be eligible to participate in any benefit plan or program for
employees of the Company, including without limitation any
incentive, bonus or similar compensation plan or arrangement.
Without limiting the generality of the preceding sentence, the
Executive acknowledges and agrees that in consideration of the
payments and benefits to be provided under this Agreement, the
Executive shall not be entitled to any other severance or similar
benefits under any plan, program, policy or arrangement, whether
formal or informal, written or unwritten, of the Company, or to any
other bonus or incentive payment for the fiscal year ending
July 30, 2005 or any other period.
4. Return
of Property . The Executive represents and warrants that on or
prior to the Effective Date he will return all property made
available to him in connection with his service to the Company to
Richard Dunn, including, without limitation, credit cards, any and
all records, manuals, reports, papers and documents kept or made by
the Executive in connection with his employment as an officer or
employee of the Company, all computer hardware or software,
cellular phones, files, memoranda, correspondence, vendor and
customer lists, financial data, keys and security access cards;
provided , however , that, subject to the
Executive’s compliance with Section 6(a), he may retain
his laptop computer.
5.
Covenants . (a) Confidential Information . The
Executive shall not now, or at any time, directly or indirectly,
disclose to any person, entity or other organization or appropriate
for his own use or the use of others any confidential information,
except as otherwise required by applicable law and in accordance
with this Section 5. For purposes of this Agreement,
“confidential information” means information concerning
the business or financial affairs of the Company which has not been
disclosed publicly by the Company. Confidential information may
include, without limitation, client lists of the Company, its
respective trade secrets and technological know-how, confidential
information about (or provided by) any customer or supplier, or
prospective or former customer or supplier, information concerning
the
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business or financial affairs of
the Company, including books and records, commitments, procedures,
plans and prospectus, strategies, or current or prospective
transactions or business, and any other “inside
information”. In the event the Executive believes he is, or
has reason to believe he will be, required by any applicable law,
discovery request and/or legal process to disclose any confidential
information (as herein defined) the Executive shall provide the
Company’s General Counsel with written notice as soon as
practicable and, if possible, given the date of his receipt of such
discovery request and/or legal process, such notice shall be
provided no less than 5 business days prior to any such
disclosure.
(b)
Non-Solicitation. As a separate and independent covenant,
the Executive agrees with the Company that, during the 12-month
period following the Effective Date, he will not in any way,
directly or indirectly (i) 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
Company or (ii) 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 Company.
(c)
Remedies. (i) The Executive agrees that the breach by
him of any of the covenants in this Section 5 is likely to
result in immediate and irreparable harm, directly or indirectly,
to the Company. The Executive, therefore, consent and agree that if
he violates any of such covenants, the Company shall be entitled,
among and in addition to any other rights or remedies available
under this Agreement or at law or in equity, to temporary and
permanent injunctive relief, without bond or other security, to
prevent the Executive from committing or continuing a breach of
such covenants. Such injunctive relief in any co
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