-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, KhcZ47o/Ra56NzM5u/fxaP2Eu4iRKhBI1EcxBzIpESaJmwOO13Cws3zHy1XBB4Ki e+bPzETMryHZItnUONbnBA== 0000947871-06-001934.txt : 20061219 0000947871-06-001934.hdr.sgml : 20061219 20061219170459 ACCESSION NUMBER: 0000947871-06-001934 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20061213 ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers FILED AS OF DATE: 20061219 DATE AS OF CHANGE: 20061219 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DYCOM INDUSTRIES INC CENTRAL INDEX KEY: 0000067215 STANDARD INDUSTRIAL CLASSIFICATION: WATER, SEWER, PIPELINE, COMM AND POWER LINE CONSTRUCTION [1623] IRS NUMBER: 591277135 STATE OF INCORPORATION: FL FISCAL YEAR END: 0729 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-10613 FILM NUMBER: 061287180 BUSINESS ADDRESS: STREET 1: 11770 U.S. HIGHWAY 1 STREET 2: SUITE 101 CITY: PALM BEACH GARDENS STATE: FL ZIP: 33408 BUSINESS PHONE: 5616277171 MAIL ADDRESS: STREET 1: 11770 U.S. HIGHWAY 1 STREET 2: SUITE 101 CITY: PALM BEACH GARDENS STATE: FL ZIP: 33408 FORMER COMPANY: FORMER CONFORMED NAME: MOBILE HOME DYNAMICS INC DATE OF NAME CHANGE: 19820302 8-K 1 f8k_121906.txt CURRENT REPORT ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report: December 13, 2006 DYCOM INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) Florida 0-5423 59-1277135 (State or other jurisdiction) (Commission file number) (I.R.S. employer of incorporation) identification no.) 11770 U.S. Highway One, Suite 101 Palm Beach Gardens, Florida 33408 (Address of principal executive offices) (Zip Code) (561) 627-7171 (Registrant's telephone number, including area code) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c)) ================================================================================ Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. 1. Change in Director Compensation and amendment of 2002 Directors Restricted Stock Plan. On December 13, 2006, the Board of Directors (the "Board") of Dycom Industries, Inc. ("Dycom") approved, upon recommendation of the Compensation Committee, the following modifications to Dycom's director compensation policy and an amendment to the Dycom Industries, Inc. 2002 Directors Restricted Stock Plan (the "Directors Plan"). (i) The annual cash retainer received by each director will be increased from $18,000 to $30,000 retroactive to November 21, 2006. The additional annual cash retainers paid to Board members who serve as committee chairs will also be increased as follows: o Audit Committee Chairperson: From $5,000 to $10,000 o Compensation Committee Chairperson: From $2,500 to $7,500 o Corporate Governance Committee Chairperson: From $2,500 to $5,000 (ii) For the period from December 13, 2006 to the day immediately prior to the fiscal 2007 Annual General Meeting of shareholders, each director will receive a supplemental annual cash retainer of $50,000 (the "Supplemental Retainer") payable in the form of restricted stock units ("RSUs"), settled in shares of Dycom common stock, that vest in three equal annual installments commencing on December 13, 2007. Vesting of RSUs will be accelerated in the event that the recipient is not nominated or reelected to the Board or resigns from the Board with its consent. (iii) In connection with the Supplemental Retainer, the Board adopted an amendment to the Directors Plan providing for the issuance of RSUs and allowing recipients to defer the settlement of their RSUs until the earlier of (a) their termination of service on the Board for any reason, or (b) a date specified by the director. A copy of the amended and restated Directors Plan is attached hereto as Exhibit 99.1. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Dated: December 19, 2006 DYCOM INDUSTRIES, INC. (Registrant) By: /s/ Richard L. Dunn -------------------------------- Name: Richard L. Dunn Title: Senior Vice President and Chief Financial Officer Index to Exhibits ----------------- Exhibit No. Description - ----------- ----------- 99.1 Dycom Industries, Inc. 2002 Directors Restricted Stock Plan (as amended and restated effective as of December 13, 2006). 99.2 Form of Director Restricted Stock Unit Agreement. EX-99.1 2 ex99-1_121906.txt 2002 DIRECTORS RESTRICTED STOCK PLAN AMENDED AND RESTATED DYCOM INDUSTRIES, INC. 2002 DIRECTORS RESTRICTED STOCK PLAN (as amended effective as of December 13, 2006) 1. Definitions and Rules of Construction (a) Definitions. For purposes of this Plan, the following capitalized words shall have the meanings set forth below: "2007 Service Period" means the period beginning on December 13, 2006 and ending on the day immediately preceding the fiscal 2007 annual shareholder meeting. "Administrator" means the Board or any committee thereof as designated by the Board. "Annual Meeting" means an annual meeting of the Company's stockholders. "Award Document" means an agreement, certificate or other type or form of document or documentation approved by the Administrator which sets forth the terms and conditions of an award of Restricted Stock pursuant to the Plan. An Award Document may be in written, electronic or other media, may be limited to a notation on the books and records of the Company and, unless the Administrator requires otherwise, need not be signed by a representative of the Company or a Participant. "Board" means the Board of Directors of the Company, including any directors who may be Participants. "Common Stock" means the common stock of the Company, par value $0.33-1/3 per share, or such other class of share or other securities as may be applicable under Section 9(b) hereof. "Company" means Dycom Industries, Inc., a Florida corporation, or any successor to substantially all of its business that adopts the Plan. "Date of Grant" means the date on which a Non-Employee Director is granted an award of Restricted Stock pursuant to this Plan. "Disability" means any physical or mental injury or disorder of a Participant which precludes the continued active service of a Participant as a member of the Board and which is evidenced by a determination by the Administrator that such Participant would be eligible to receive disability benefits under the Company's long-term disability plan. "Effective Date" means the date set forth in Section 15 hereof. "Eligible Compensation" means (i) any annual fee payable to a Non-Employee Director for service on the Board, (ii) any other fee determined on an annual basis and payable for service on, or for acting as chairperson of, any committee of the Board, and (iii) any similar annual fee or fees payable in respect of service on the board of directors of any Subsidiary or any committee of any such board of directors; provided, however, that "Eligible Compensation" shall not include any per diem fees paid to a Non-Employee Director. "Exchange Act" means the Securities and Exchange Act of 1934, as amended, and the rules and regulations thereunder. "Fair Market Value" means, with respect to a share of Common Stock, the fair market value thereof as of the relevant date of determination, as determined in accordance with a valuation methodology approved by the Administrator. In the absence of any alternative valuation methodology approved by the Administrator, the Fair Market Value of a share of Common Stock shall be the closing price of a share of Common Stock as reported on the composite tape for securities listed on the New York Stock Exchange, or such other national securities exchange as may be designated by the Administrator, or, in the event that the Common Stock is not listed for trading on a national securities exchange but is quoted on an automated system, on such automated system, in any such case on the valuation date (or, if there were no sales on the valuation date, the closing price of a share of Common Stock as reported on said composite tape or automated system for the most recent day during which a sale occurred). "Non-Employee Director" means a director of the Company who is not an officer or employee of the Company or any Subsidiary. "Participant" means a Non-Employee Director who has been granted an award of Restricted Stock under this Plan. "Payment Date" means the date or dates on which the Eligible Compensation is payable to a Non-Employee Director. "Plan" means this Dycom Industries, Inc. 2002 Directors Restricted Stock Plan, as described herein and as the same may be amended or otherwise modified from time to time. "Restricted Stock" means restricted shares of Common Stock granted to a Non-Employee Director pursuant to Section 6 hereof and an applicable Award Document. Unless expressly provided herein, the term "Restricted Stock" shall include the term "Restricted Stock Unit". "Restricted Stock Unit" means an award of units to receive a specified number of shares of Common Stock pursuant to Section 7 hereof and an applicable Award Document. "Restriction Period" means, with respect to an award of Restricted Stock (other than a Restricted Stock Unit) to a Participant, the period of time during which such Restricted Stock is subject to the restrictions hereof, commencing on the Date of Grant and ending on the earlier to occur of (i) the six-month anniversary of the Date of Grant and (ii) the termination of such Participant's services as a Non-Employee Director due to death or Disability. "Service Period" means a twelve-month period commencing on date of an applicable Annual Meeting or such other period as the Administrator may specify from time to time. The first Service Period shall commence on the 2002 Annual Meeting. "Share Election" means, unless otherwise determined by the Administrator, a Non-Employee Director's annual written election to receive payment of a percentage of his Eligible Compensation in the form of Restricted Stock, subject to the terms and conditions of this Plan. Unless the Administrator determines otherwise, a Share Election shall be irrevocable. "Share Election Amount" means the U.S. dollar amount of Eligible Compensation elected to be received in the form of Restricted Stock by a Non-Employee Director, subject to the terms and conditions of this Plan. "Share Election Date" means, unless otherwise determined in the sole discretion of the Administrator, the day immediately preceding the commencement of a Service Period. If an individual first becomes eligible to participate in the Plan after the start of a Service Period, the Share Election Date shall be the thirtieth day following such initial participation date. "Share Election Form" means a document, in a form approved by the Administrator, pursuant to which a Participant makes a Share Election under the Plan. "Shareholding Requirement" means the ownership of 7,500 shares of Common Stock, subject to adjustment pursuant to Section 9(b) hereof. "Subsidiary" means (i) a domestic or foreign corporation or other entity with respect to which the Company, directly or indirectly, has the power, whether through the ownership of voting securities, by contract or otherwise, to elect at least a majority of the members of such corporation's board of directors or analogous governing body, or (ii) any other domestic or foreign corporation or other entity in which the Company, directly or indirectly, has an equity or similar interest and which the Board designates as a Subsidiary for purposes of this Plan. "Supplemental Annual Retainer" means, the supplemental annual retainer fee paid to a Non-Employee Director for service to the Board with respect to the 2007 Service Period. (b) Rules of Construction. The masculine pronoun shall be deemed to include the feminine pronoun and the singular form of a word shall be deemed to include the plural form, unless the context requires otherwise. Unless the text indicates otherwise, references to sections are to sections of the Plan. 2. Purpose of the Plan The Plan is intended to encourage ownership of Common Stock by Non-Employee Directors of the Company, upon whose judgment and interest the Company is dependent for its successful operation and growth, in order to increase their proprietary interest in the Company's success and to encourage them to serve as directors of the Company. The Plan is intended to comply with the terms and provisions of Rule 16b-3 promulgated under the Exchange Act. Any provision of the Plan or any Award Document inconsistent with the terms of such Rule in effect shall be inoperative and shall not affect the validity of the Plan, such Award Document or any other provision thereof. 3. Administration (a) Authority. Subject to the provisions of Section 16 hereof, the Administrator shall have authority to interpret the provisions of the Plan, to establish such rules and procedures as may be necessary or advisable to administer the Plan and to make all determinations necessary or advisable for the administration of the Plan, including, without limitation, factual and legal determinations; provided, however, that no such interpretation or determination shall change or affect the selection of persons eligible to receive an award of Restricted Stock under the Plan, the number of shares authorized under the Plan or the terms and conditions thereof. The interpretation and construction by the Administrator of any provision of the Plan or of any Award Document shall be final, binding and conclusive on all parties. (b) Delegation. The Administrator may designate one or more employees of the Company to carry out the day-to-day aspects of the Administrator's responsibilities under such conditions as it may set. 4. Eligibility Awards of Restricted Stock shall be granted pursuant to the provisions hereof to persons who are Non-Employee Directors. 5. Plan Limit Subject to Section 9(b) hereof, the Company is authorized to issue up to 100,000 shares of Common Stock under the Plan (the "Plan Limit"). Such shares may be authorized but unissued shares of Common Stock or reacquired shares of Common Stock held in the treasury of the Company. 6. Director Compensation (a) Generally. Each Non-Employee Director shall make a Share Election as specified in this Section 6. A Non-Employee Director shall make a Share Election, subject to the limitations set forth in Sections 6(b) and 6(c) hereof, by completing, signing and submitting, prior to the commencement of a Service Period, a Share Election in the form approved from time to time by the Administrator. (b) Non Attainment of Shareholding Requirement. With respect to a Non-Employee Director who does not attain the Shareholding Requirement as of the day immediately prior to the commencement of any applicable Service Period, such Non-Employee Director shall make a Share Election to receive no less than 60% of the Eligible Compensation payable to him during such applicable Service Period in Restricted Stock or, with respect to the 2007 Service Period, Restricted Stock Units, and the remainder of such Eligible Compensation shall be payable in cash. (c) Attainment of Shareholding Requirement. With respect to a Non-Employee Director who attains the Shareholding Requirement as of the day immediately prior to the commencement of any applicable Service Period, such Non-Employee Director shall make a Share Election to receive no less than 25% of the Eligible Compensation payable to him during such applicable Service Period in Restricted Stock or, with respect to the 2007 Service Period, Restricted Stock Units, and the remainder of such Eligible Compensation shall be payable in cash; provided, however, that in the event that such Non-Employee Director fails to satisfy the Shareholding Requirement prior to the commencement of any subsequent Service Period, such Non-Employee Director shall make a Share Election to receive no less than 60% of such applicable Eligible Compensation payable to him during such Service Period in Restricted Stock or Restricted Stock Units. (d) Share Election. Before each Share Election Date applicable to a Service Period, each Participant will be provided with a Share Election Form. A Share Election Form submitted by a Non-Employee Director for an applicable Service Period in accordance with such procedures to be determined by the Administrator shall be deemed to be a continuing election for all subsequent Service Periods, unless the Non-Employee Director completes, signs and submits a subsequent Share Election Form with the Company prior to the Share Election Date applicable to such Service Period. For each applicable Service Period, a Non-Employee Director shall indicate on his Share Election Form, subject to the limitations set forth in Section 6(b) and 6(c) hereof, the percentage of the Eligible Compensation for the applicable Service Period to be paid in Restricted Shares or Restricted Stock Units. (e) Effect of No Share Election Form. A Non-Employee Director who does not have a completed and signed Share Election Form on file with the Company prior to the Share Election Date for an applicable Service Period will have 100% of his Eligible Compensation paid in shares of Restricted Stock or Restricted Stock Units (as applicable). (f) Determination of Number of Shares of Restricted Stock or Restricted Stock Units. The number of shares of Restricted Stock or Restricted Stock Units (as applicable) to be awarded to a Non-Employee Director pursuant to this Section 6 shall be determined by (i) dividing (x) the Share Election Amount as of the Payment Date by (y) the Fair Market Value of a share of Common Stock as of the Payment Date and (ii) rounding up to the nearest whole share of Common Stock. (g) Supplemental Annual Retainer Awarded in Restricted Stock Units. Notwithstanding any provision contained herein to the contrary, 100% of the Supplemental Annual Retainer shall be awarded to a Non-Employee Director in Restricted Stock Units, regardless of whether such Non-Employee Director has attained the Shareholding Requirement as of the day immediately prior to the commencement of the 2007 Service Period. 7. Terms and Conditions of Restricted Stock Awards (a) Generally. The terms and conditions of each award of Restricted Stock shall be set forth in an Award Document, which shall contain terms and conditions not inconsistent with this Plan. (b) Nontransferability. (i) During the Restriction Period, shares of Restricted Stock (other than Restricted Stock Units) shall not be assigned, pledged, encumbered, or hypothecated to or in favor of or subject to any lien, obligation, or liability of a Participant to any party other than the Company. Restricted Stock or other rights of a Participant relating thereto shall not be transferred by a Participant otherwise than by will or the laws of descent and distribution. (ii) Restricted Stock Units shall not be assigned, pledged, encumbered, or hypothecated to or in favor of or subject to any lien, obligation, or liability of a Participant to any party other than Company. Restricted Stock Units or other rights of a Participant relating thereto shall not be transferred by a Participant otherwise than by will or the laws of descent and distribution. (c) Evidence of Ownership. (i) Each Participant receiving an award of Restricted Stock (other than Restricted Stock Units) shall be issued a certificate or certificates in respect of such Restricted Stock award at the time of grant. Such certificate or certificates shall be registered in the name of such Participant, and shall bear an appropriate legend referring to the terms, conditions and restrictions applicable to such award of Restricted Stock. The Administrator may require, as a condition of any award of Restricted Stock, that the Participant deliver a stock power, endorsed in blank, relating to the Restricted Stock covered by such award. (ii) Participants receiving an award of Restricted Stock Units shall not be issued a certificate or certificates in respect of the shares underlying such award until such shares shall have been issued to the Participant following the vesting date of the award. Upon issuance, such certificate or certificates shall be registered in the name of such Participant, and shall bear an appropriate legend referring to the applicable terms, conditions and restrictions. (d) Rights as Shareholder. (i) During the Restriction Period, each Participant will be entitled to all rights of a stockholder of the Company, including the right to vote the Restricted Stock (other than Restricted Stock Units) and receive dividends declared on such shares of Restricted Stock. (ii) Each Participant receiving an award of Restricted Stock Units shall have no rights as a shareholder until shares underlying such award, if any, shall have been issued to the Participant following the vesting date of the award, and except as expressly provided herein, no adjustment shall be made for dividends or distributions or other rights in respect of such award. (e) Subject to Exchange Rules. Any and all awards of Restricted Stock shall be subject to all applicable rules and regulations of any exchange on which the Common Stock may then be listed. (f) Right to Elect to Defer Restricted Stock Units. In accordance with such procedures to be established by the Administrator from time to time, a Participant may elect to defer receipt of all or any portion of the Restricted Stock Units awarded in accordance with the terms of this Plan and any applicable Award Document. 8. Tax Withholding The Company or a Subsidiary, as appropriate, may require any individual entitled to the issuance of shares of Common Stock pursuant to an award of Restricted Stock to remit to the Company, prior to such payment, an amount sufficient to satisfy any federal, state or local tax withholding requirements. If the Company or a Subsidiary 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 by law to be withheld with respect to such amounts. The Company or a Subsidiary shall also be entitled to deduct and to withhold such amounts from any cash payments to be made to the Participant. The obligations of the Company under the Plan shall be conditioned 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. The Administrator may establish such rules and procedures, including, without limitation, any rules or procedures necessary to comply with Rule 16b-3, as it may deem necessary or advisable in connection with the withholding of taxes relating to any Restricted Stock Award. 9. No Restriction on Right of Company to Effect Corporate Changes (a) Authority of the Company and Stockholders. The existence of the Plan, the Award Documents and the award of Restricted Stock granted hereunder shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company's capital structure or its business, any merger or consolidation of the Company, 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, or the dissolution or liquidation 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) Change in Capitalization. Notwithstanding any provision of the Plan or any Award Document, the number and kind of shares authorized for issuance under Section 5 hereof 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 and kind of shares subject to any outstanding awards of Restricted Stock may be equitably adjusted (including by payment of cash to a Participant) in the sole discretion of the Administrator in order to preserve the benefits or potential benefits intended to be made available to Participants granted awards of Restricted Stock. Such adjustments shall be made by the Administrator, in its sole discretion, whose determination as to what adjustments shall be made, and the extent thereof, shall be final. Unless otherwise determined by the Administrator, such adjusted awards of Restricted Stock shall be subject to the same restrictions to which the underlying award of Restricted Stock is subject. 10. Securities Law Restrictions All certificates for shares of Restricted Stock delivered under the Plan shall be subject to such stock-transfer orders and other restrictions as the Administrator may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission and any exchange upon which the Common Stock is then listed, and any applicable Federal or state securities law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. No shares of Common Stock shall be issued hereunder unless the Company shall have determined that such issuance is in compliance with, or pursuant to an exemption from, all applicable Federal and state securities laws. 11. Exchange Act Notwithstanding anything contained in the Plan or any agreement under the Plan to the contrary, if the consummation of any transaction under the Plan, or the taking of any action by the Committee in connection with a change of control of the Company, would result in the possible imposition of liability on a 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 or the effectiveness of such action to the extent necessary to avoid such liability, but in no event for a period longer than 180 days. 12. No Right to Continue as a Director Nothing in the Plan or in any award of Restricted Stock granted under the Plan shall confer (or be deemed to confer) any right in any Participant to 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. 13. Awards to Individuals Subject to Non-U.S. Jurisdictions To the extent that awards of Restricted Stock under the Plan are granted to individuals who are domiciled or resident outside of the United States or to persons who are domiciled or resident in the United States but who are subject to the tax laws of a jurisdiction outside of the United States, the Administrator may, in its sole discretion, adjust the terms of the Restricted Stock granted hereunder to such person to comply with the laws of such jurisdiction. The authority granted under the previous sentence shall include the discretion for the Administrator to adopt, on behalf of the Company, one or more sub-plans applicable to separate classes of Participants who are subject to the laws of jurisdictions outside of the United States 14. Term of the Plan Unless earlier terminated pursuant to Section 16 hereof, the Plan shall terminate on the tenth anniversary of the Effective Date, except with respect to awards of Restricted Stock then outstanding. 15. Effective Date The Plan shall become effective upon its approval by the stockholders of the Company at the 2002 Annual Meeting. 16. Amendment and Termination The Plan may be terminated and may be modified or amended by the Board at any time and from time-to-time; provided, however, that (i) no modification or amendment shall be effective without stockholder approval if such approval is required by law or under the rules of New York Stock Exchange or the stock exchange on which the shares are listed, and (ii) no such termination, modification, or amendment of the Plan shall adversely alter or affect the terms of any then outstanding awards of Restricted Stock previously granted hereunder without the consent of the holder thereof. 17. Governing Law The Plan and all agreements entered into under the Plan shall be construed in accordance with and governed by the laws of the state of Florida and without giving effect to principles of conflicts of laws. 18. Unfunded Plan The Plan is intended to constitute an unfunded plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any rights that are greater than those of a general creditor of the Company. In its sole discretion, the Administrator may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver Restricted Stock hereunder. EX-99.2 3 ex99-2_121906.txt FORM OF DIRECTOR RESTRICTED STOCK UNIT AGREEMENT 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 2 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. 3 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 4 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. 5 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: ----------------------------------- Name: Title: PARTICIPANT --------------------------------------- Name: Address: Number of Restricted Stock Units: Date of Grant: 6 -----END PRIVACY-ENHANCED MESSAGE-----