executionversionsenemplo






1 RESTRICTED  EMPLOYMENT AGREEMENT  This EMPLOYMENT AGREEMENT (the “Agreement”), dated as of May 21,  2020, is by and between Dycom Industries, Inc., a Florida corporation (the “Company”), and  Steven E. Nielsen (the “Executive”).  WHEREAS, the Company and the Executive previously entered into an  employment agreement, dated as of April 26, 2016 (the “Existing Employment Agreement”);  WHEREAS, the Existing Employment Agreement will expire in accordance with  its terms on May 31, 2020; and  WHEREAS, the Company and the Executive desire to provide for the continued  employment of the Executive and to supersede the Existing Employment Agreement with this  Agreement effective as of the Effective Date (as defined in Section 2);  NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:  1. Employment and Duties.  (a) General.  Subject to the terms and conditions hereof, the Executive  shall continue to serve as President and Chief Executive Officer of the Company, reporting to the  Board of Directors (the “Board”) of the Company.  The Executive shall have such duties and  responsibilities commensurate with those typically provided by a President and Chief Executive  Officer of a company that is required to file reports with the Securities and Exchange  Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended  (a “Public Company”), as may be assigned to the Executive from time to time by the  Board.   The Executive’s principal place of employment shall be the principal offices of the  Company currently located in Palm Beach Gardens, Florida, subject to such reasonable travel as  the performance of his duties and the business of the Company may require.  (b) Exclusive Services.  For so long as the Executive is employed by  the Company, the Executive shall devote his full business working time to his duties hereunder,  shall faithfully serve the Company, shall in all respects conform to and comply with the lawful  and good faith directions and instructions given to him by the Board and shall use his best efforts  to promote and serve the interests of the Company.  Further, the Executive shall not, directly or  indirectly, render material services to any other person or organization without the consent of the  Company pursuant to authority granted by the lead independent director of the Board or  otherwise engage in activities that would interfere significantly with the faithful performance of  his duties hereunder.  Notwithstanding the foregoing, the Executive may (i) serve on corporate,  civic or charitable boards provided that, on and after the Effective Date hereof, the Executive  provides the lead independent director of the Board, in writing, with a list of such boards and  receives the consent of the lead independent director of the Board to serve on such boards and  (ii) manage personal investments or engage in charitable activities, provided that such activity  does not contravene the first sentence of this Section 1(b).  Exhibit 10.14* 





 






2 RESTRICTED  2. Term.  (a) The Executive’s employment under this Agreement shall  commence as of May 31, 2020 (the “Effective Date”) and shall, subject to earlier termination of  the Executive’s employment under this Agreement), continue until May 31, 2025 (the “Initial  Term”).  Unless a Final Non-Renewal Notice (as defined below) is given or the Executive’s  employment is earlier terminated in accordance with the terms of this Agreement, the period of  the Executive’s employment shall, as of and following the expiration of the Initial Term, be  automatically extended for additional 12 month periods (individually, and collectively, the  “Renewal Term”).  The period from the Effective Date until the termination of the Executive’s  employment under this Agreement, including the Initial Term, and, if applicable, the CIC Term  (as defined below), any Renewal Term or Post-CIC Renewal Term (as defined below), is  referred to as the “Term.”  (b) Notwithstanding the foregoing, if a Change in Control (as defined  in Section 5 below) occurs prior to the termination of the Executive’s employment under this  Agreement (including after providing a Final Non-Renewal Notice, which shall be deemed  revoked and superseded by reason of the occurrence of the Change in Control), the Term shall  end not earlier than the second anniversary of the consummation of the Change in Control unless  the Executive experiences a termination of employment under this Agreement (the “CIC Term”).   Unless a Final Non-Renewal Notice is given as herein provided or Executive’s employment is  earlier terminated in accordance with the terms of this Agreement, the period of Executive’s  employment shall, as of and following the expiration of the CIC Term, be automatically  extended for additional 12 month periods (individually, and collectively, the “Post-CIC Renewal  Term”).  The Company or the Executive may elect to terminate the automatic extension of the  Term by giving written notice of such election not less than (i) one-year prior to the end of the  Initial Term or any Renewal Term, as applicable or (ii) 90 days prior to the end of the CIC Term  or any Post-CIC Renewal Term, as applicable (the “Final Non-Renewal Notice”).   3. Compensation and Other Benefits.  Subject to the provisions of this  Agreement, the Company shall pay and provide the following compensation and other benefits to  the Executive during the Term as compensation for services rendered hereunder:  (a) Base Salary.  The Company shall pay to the Executive an annual  salary at the rate of $1,050,000 (the “Base Salary”), payable in substantially equal installments at  such intervals as may be determined by the Company in accordance with its ordinary payroll  practices as established from time to time; provided that the Executive shall receive a reduced  annual salary at the rate of $750,000 (the “Reduced Base Salary”) in accordance with and until  such time provided for in that certain letter agreement regarding salary reduction dated March  27, 2020 (the “Salary Reduction Letter”).  For the avoidance of doubt, any references to “Base  Salary” in this Agreement (including in Section 3(b) with respect to the Executive’s bonus  entitlements and in Section 4 relating to post-termination severance and other payments and  benefits) shall refer to the highest annual rate of Base Salary approved by the Compensation  Committee of the Board for the Executive as of and following the date of this Agreement and  shall not refer to the Reduced Base Salary or any other reduced annual salary rate unless  specifically agreed to by the Executive.  During the Term, the Compensation Committee of the  





 






3 RESTRICTED  Board shall review the Executive’s Base Salary, not less often than annually, and may increase  (but not decrease) the Executive’s Base Salary in its sole discretion.   (b) Bonus.  The Executive shall be entitled to participate in the  Company’s annual incentive bonus plan in accordance with its terms as may be in effect from  time to time and subject to such other terms as the Board may approve.  For each fiscal year  during the Term, the Executive shall be eligible to receive no less than (i) a target annual bonus  opportunity of 105% of his Base Salary and (ii) an annual maximum bonus opportunity of 210%  of his Base Salary.  (c) Long-Term Incentive Plan.  The Executive shall be entitled to  participate in the Company’s long-term incentive plan in accordance with its terms that may be  in effect from time to time and subject to such other terms as the Board, in its sole discretion,  may approve.  (d) Benefit Plans.  The Executive shall be entitled to participate in all  employee benefit plans or programs of the Company as are available to other senior executives  of the Company, in accordance with the terms of the plans, as may be amended from time to  time.  (e) Expenses.  The Company shall reimburse the Executive for  reasonable travel and other business-related expenses incurred by the Executive in the fulfillment  of his duties hereunder upon presentation of written documentation thereof, in accordance with  the business expense reimbursement policies and procedures of the Company as in effect from  time to time.  In addition, the Company shall reimburse the Executive for the cost of an annual  physical exam by a physician of the Executive’s choice upon presentation of written  documentation thereof, in accordance with the applicable business expense reimbursement  policies and procedures of the Company as in effect from time to time.  Payments with respect to  reimbursements of expenses shall be made consistent with the Company’s reimbursement  policies and procedures and in no event later than the last day of the calendar year following the  calendar year in which the relevant expense is incurred.  (f) Vacation.  The Executive shall be entitled to vacation time  consistent with the applicable policies of the Company for other senior executives of the  Company as in effect from time to time.  4. Termination of Employment.  Subject to this Section 4, the Company shall  have the right to terminate the Executive’s employment at any time, with or without Cause (as  defined in Section 5 below), and the Executive shall have the right to terminate his employment  at any time, with or without Good Reason (as defined in Section 5 below).  (a) Termination due to Death or Disability.  The Executive’s  employment under this Agreement will terminate upon the Executive’s death and upon the  Executive’s Disability (as defined in Section 5 below) may be terminated by the Company upon  giving not less than 30 days’ written notice to the Executive.  In the event of the Executive’s  death or Disability, the Company shall pay to the Executive (or his estate, as applicable) the  Executive’s accrued salary through and including the date of termination and any bonus earned,  





 






4 RESTRICTED  but unpaid, for the year prior to the year in which the Separation from Service (as defined in  Section 4(b) below) occurs and any other amounts or benefits required to be paid or provided by  law or under any plan, program, policy or practice of the Company (“Other Accrued  Compensation and Benefits”), payable within 30 days of the Executive’s Separation from  Service by reason of death or Disability.  In addition, solely in the event the Executive’s  employment under this Agreement terminates as a result of death or Disability after the  Executive or the Company delivers a Final Non-Renewal Notice, the Executive shall be entitled  to the following:  (i) a pro rata bonus equal to (x) the annual bonus the Executive would have  earned for the fiscal year in which the Separation from Service occurs based on performance as  determined by the Board, multiplied by (y) a fraction, the numerator of which is the number of  days worked during the fiscal year in which the Separation from Service occurs and the  denominator of which is 365, payable in a single lump sum upon certification to the Board of  performance for such fiscal year; (ii) full acceleration of all outstanding stock options granted by  the Company to the Executive pursuant to any of the Company’s long-term incentive plans, to  the extent not already vested, which shall remain exercisable for the three-year period following  the date of termination; (iii) with respect to all outstanding time and performance vesting  restricted stock or restricted stock unit awards granted by the Company to the Executive pursuant  to any of the Company’s long-term incentive plans, (1) in the case of death, full acceleration of  such awards with any performance awards vesting at their respective target performance levels;  or (2) in the case of Disability, continued vesting in accordance with the terms of such awards,  with any performance vesting awards subject to the applicable performance conditions; and (iv)  with respect to any other outstanding equity awards, such awards will continue to vest in  accordance with their terms, with any performance vesting awards subject to the applicable  performance conditions.  (b) Termination for Cause; Resignation without Good Reason.  If,  prior to the expiration of the Term, the Executive incurs a “Separation from Service” within the  meaning of Section 409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the  “Code”), by reason of the Company’s termination of the Executive’s employment for Cause or if  the Executive resigns from his employment hereunder other than for Good Reason, the Executive  shall only be entitled to payment of his Other Accrued Compensation and Benefits, payable in  accordance with Company policies and practices and in no event later than 30 days after the  Executive’s Separation from Service.  The Executive shall have no further right to receive any  other compensation or benefits after such termination or resignation of employment.  (c) Termination without Cause; Resignation for Good Reason Prior to  a Change in Control.  If, prior to the expiration of the Term, the Executive incurs a Separation  from Service by reason of the Company’s termination of the Executive’s employment without  Cause, or if the Executive resigns from his employment for Good Reason prior to a Change in  Control the Executive shall receive the Other Accrued Compensation and Benefits and, subject  to Section 4(f), shall be entitled to the following:  (i) an amount equal to three times the sum of (1) his Base Salary (at the rate in effect  on the date the Executive’s employment is terminated) plus (2) the greater of (x)  the average amount of the annual bonus paid to him for each of the three fiscal  years immediately prior to the fiscal year in which the Separation from Service  occurs or (y) target annual bonus for the fiscal year in which the Separation from  





 






5 RESTRICTED  Service occurs, payable in substantially equal monthly installments over a period  of 18 months beginning 60 days following the Executive’s Separation from  Service and shall be in the amount of one-ninth of the severance amount due to  the Executive under this clause (i), and each of the remaining sixteen installments  shall be in the amount of one-eighteenth of such severance amount due to the  Executive; provided, however, that if a “change in the effective control of a  corporation,” as such term is defined in Treasury Regulation §1.409A-3(i)(5),  occurs with respect to the Company following the Executive’s Separation from  Service, any unpaid amounts hereunder shall be paid in a single lump sum within  five days following the consummation of such change in the effective control; and  (ii) continued participation in the employee benefit plans of the Company (other than  equity-based plans, 401(k) plans, bonus plans, or disability plans) applicable to  other senior executives for a period of three years following the Executive’s  Separation from Service or, in the event such participation is not permitted, a cash  payment equal to the value of the benefit excluded, payable in three annual  installments beginning 60 days following the Executive’s Separation from  Service; provided, however, that in the event the Executive obtains other  employment and is eligible to participate in the welfare benefit plans of his new  employer, any benefits provided under the Company’s welfare benefit plans shall  be secondary to the benefits provided under the welfare benefit plans of the  Executive’s new employer.  (d) Termination without Cause; Resignation for Good Reason on or  Following a Change in Control.  If, prior to the expiration of the CIC Term, the Executive incurs  a Separation from Service on or following the consummation of a Change in Control by reason  of the Company’s termination of the Executive’s employment without Cause, or if the Executive  resigns from his employment for Good Reason, the Executive shall receive the Other Accrued  Compensation and Benefits and, subject to Section 4(f), shall be entitled to the following:  (i) an amount equal to three times the sum of (i) his Base Salary (at the rate in effect  on the date the Executive’s employment is terminated) plus (ii) the greater of (x)  the average amount of the annual bonus paid to him for each of the three fiscal  years immediately prior to the fiscal year in which the Separation from Service  occurs or (y) target annual bonus for the fiscal year in which the Separation from  Service occurs, payable in a single lump sum within five days;  (ii) a pro rata bonus equal to (x) the greater of (i) the average amount of the annual  bonus paid to the Executive for each of the three fiscal years immediately prior to  the fiscal year in which the Separation from Service occurs or (ii) the annual  bonus the Executive would have earned for the fiscal year in which the Separation  from Service occurs based on performance as determined through the date of the  Separation from Service, multiplied by (y) a fraction, the numerator of which is  the number of days worked during the fiscal year in which the Separation from  Service occurs and the denominator of which is 365 , payable in a single lump  sum within five days; provided, however, that if such Separation from Service  occurs in the same fiscal year as the Change in Control and the Executive is paid  





 






6 RESTRICTED  an annual bonus for such year in connection with the Change in Control, the  fraction shall be adjusted so that the numerator reflects the number of days  worked during the fiscal year following the Change in Control and the  denominator reflects the number of days in the fiscal year following the Change  in Control;  (iii) continued participation in the employee benefit plans of the Company (other than  equity-based plans, 401(k) plans, bonus plans, or disability plans) applicable to  other senior executives for a period of three years following the Executive’s  Separation from Service or, in the event such participation is not permitted, a cash  payment equal to the value of the benefit excluded, payable in three annual  installments beginning 60 days following the Executive’s Separation from  Service; provided, however, that in the event the Executive obtains other  employment and is eligible to participate in the welfare benefit plans of his new  employer, any benefits provided under the Company’s welfare benefit plans shall  be secondary to the benefits provided under the welfare benefit plans of the  Executive’s new employer; and  (iv) all outstanding equity-based awards, including but not limited to stock options,  restricted stock, and restricted stock unit awards, granted by the Company to the  Executive pursuant to any of the Company’s long-term incentive plans shall fully  and immediately vest to the extent not already vested.  In addition, all outstanding  performance share, performance share unit, and other equivalent awards granted  by the Company to the Executive pursuant to any of the Company’s long-term  incentive plans shall immediately vest at their respective target performance  levels to the extent not already vested.  Notwithstanding anything to the contrary in this Agreement, any termination without Cause that  occurs prior to a Change in Control but which the Executive reasonably demonstrates (x) was at  the request of a third party, or (y) arose in connection with or in anticipation of a Change in  Control which actually occurs, shall constitute a termination without Cause occurring on such  Change in Control for purposes of this Agreement.   (e) Failure to Renew Agreement; Termination Due to Retirement.  If  the Executive or the Company delivers a Final Non-Renewal Notice, the Executive’s  employment under this Agreement will terminate due to retirement at the end of the one-year  notice period (or on such earlier date as may be mutually agreed by Mr. Nielsen and the  Company).  Upon a termination of employment due to the Executive’s retirement, the Executive  shall receive the Other Accrued Compensation and Benefits and, subject to Section 4(f), he shall  be entitled to the following:  (i) a pro rata bonus equal to (x) the annual bonus the Executive would have earned  for the fiscal year in which the Separation from Service occurs based on  performance as determined by the Board, multiplied by (y) a fraction, the  numerator of which is the number of days worked during the fiscal year in which  the Separation from Service occurs and the denominator of which is 365, payable  





 






7 RESTRICTED  in a single lump sum upon certification to the Board of performance for such  fiscal year; and  (ii) all outstanding equity awards granted to the Executive pursuant to any of the  Company’s long-term incentive plans, shall be treated as follows:  (i) all  outstanding stock options shall continue to vest on their terms as if the Executive  did not have a Separation from Service and remain exercisable until the original  expiration date; (ii) all outstanding time vesting restricted stock or restricted stock  unit awards shall continue vesting for the three-year period following the  Executive’s Separation from Service; and (iii) all outstanding performance  vesting restricted stock or restricted stock unit awards shall continue to vest for  the two-year period following the Executive’s Separation from Service, with the  number of shares earned based on actual performance determined by the Board at  the end of the original performance period for each such performance vesting  restricted stock or restricted stock unit award.  Any other outstanding equity  awards will continue to vest in accordance with their terms, with any performance  vesting awards subject to the applicable performance conditions.   Notwithstanding the foregoing, upon the Executive’s death following the  Executive’s Separation from Service, any time vesting awards will vest and any  performance vesting awards will vest at their target performance levels.  (iii) continued participation in the Company’s health plans for him and his spouse, on  the same terms as immediately prior to the Separation from Service until such  time that the Executive is eligible for Medicare.  If the Company determines (in  its sole discretion) at any time following the Executive’s Separation from Service  that the Executive’s participation in the Company’s health plans is not or no  longer permitted (whether through COBRA or otherwise) or that continued  participation has a substantial risk of violating applicable law, then the Company  instead shall pay to the Executive, on a monthly basis, a cash payment equal to  the cost of the Executive obtaining the same or substantially similar healthcare  benefits until such time that both the Executive and his spouse are eligible for  Medicare.  (f) Execution and Delivery of Release.  The Company shall not be  required to make the payments and provide the benefits provided for under Section 4(c), 4(d), or  4(e), unless the Executive executes and delivers to the Company, within 60 days following the  Executive’s Separation from Service, a general waiver and release of claims in a form  substantially similar to the form attached hereto as Exhibit A and the release has become  effective and irrevocable in its entirety.  The Executive’s failure or refusal to sign the release (or  his revocation of such release in accordance with applicable laws) shall result in the forfeiture of  the payments and benefits under Sections 4(c), 4(d), and 4(e).  (g) Notice of Termination.  Any termination of employment by the  Company or the Executive shall be communicated by a written “Notice of Termination” to the  other party hereto given in accordance with Section 25 of this Agreement, except that the  Company may waive the requirement for such Notice of Termination by the Executive.  In the  event of a resignation by the Executive without Good Reason, the Notice of Termination shall  





 






8 RESTRICTED  specify the date of termination, which date shall not be less than 30 days after the giving of such  notice, unless the Company agrees to waive any notice period by the Executive.  (h) Resignation from Directorships and Officerships.  The termination  of the Executive’s employment for any reason shall constitute the Executive’s resignation from  (i) any director, officer or employee position the Executive has with the Company and (ii) all  fiduciary positions (including as a trustee) the Executive may hold with respect to any employee  benefit plans or trusts established by the Company.  The Executive agrees that this Agreement  shall serve as written notice of resignation in this circumstance.  5. Definitions.  (a) Cause.  For purposes of this Agreement, “Cause” shall mean the  termination of the Executive’s employment because of:  (i) the Executive’s indictment for any crime, whether such crime is a felony or  misdemeanor, that materially impairs the Executive’s ability to function as  President and Chief Executive Officer of the Company and such crime involves  the purchase or sale of any security, mail or wire fraud, theft, embezzlement,  moral turpitude, or Company property; provided, however, that if the Executive is  found not guilty of the crime and does not enter a plea of guilty or nolo  contendere to such crime or a lesser offense (based on the same operative facts),  either before or after the date of the Executive’s Separation from Service, such  indictment shall not be the basis for a termination for Cause, but will be a  termination without Cause as of the date of the Executive’s Separation from  Service;  (ii) the Executive’s repeated willful neglect of his duties; or  (iii) the Executive’s willful material misconduct in connection with the performance  of his duties (including a willful material breach of Company policies regarding  legal compliance, ethics or workplace conduct) or other willful material breach of  this Agreement.  provided, however, that no act or omission on the Executive’s part shall be considered “willful”  if it is done by him in good faith and with a reasonable belief that Executive’s conduct was in the  best interest of the Company and provided further that no event or condition described in clause  (ii) or (iii) shall constitute Cause unless (w) the Company gives the Executive written notice of  termination of his employment for Cause and the grounds for such termination within 180 days  of the Board first becoming aware of the event giving rise to such Cause, (x) such grounds for  termination are not corrected by the Executive within 30 days of his receipt of such notice, (y) if  the Executive fails to correct such event or condition, the Company gives the Executive at least  15 days’ prior written notice of a special Board meeting called to make a determination that the  Executive should be terminated for Cause and the Executive and his legal counsel are given the  opportunity to address such meeting prior to a vote of the Board, and (z) a determination that  Cause exists is made and approved by 75% of the Board.  





 






9 RESTRICTED  (b) Change in Control.  For purposes of this Agreement, “Change in  Control” shall be deemed to occur upon the occurrence of any of the following events:  (i) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of  the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the  rules and regulations promulgated thereunder) is or becomes the “beneficial  owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or  indirectly, of more than 20% of the total outstanding voting stock of the  Company, excluding, however, (1) any acquisition directly from the Company,  other than an acquisition by virtue of the exercise of a conversion privilege unless  the security being so converted was itself acquired directly from the Company; (2)  any acquisition by the Company; or (3) any acquisition by any employee benefit  plan (or related trust) sponsored or maintained by the Company or any entity  controlled by the Company;  (ii) the individuals who constitute the Board as of the Effective Date (the “Incumbent  Board”) cease to constitute a majority of the Board; provided, however, (1) that if  the nomination or election of any new director of the Company was approved by a  majority of the Incumbent Board, such new director shall be deemed a member of  the Incumbent Board and (2) that no individual shall be considered a member of  the Incumbent Board if such individual initially assumed office as a result of  either an actual or threatened “Election Contest” (as described in Rule 14a-11  promulgated under the Exchange Act) or as a result of a solicitation of proxies or  consents by or on behalf of any “person” or “group” identified in clause (i) above;  (iii) a reorganization of the Company or the Company consolidates with, or merges  with or into another person or entity or conveys, transfers, leases or otherwise  disposes of all or substantially all of its assets to any person or entity, or any  person or entity consolidates with or merges with or into the Company; provided,  however, that any such transaction shall not constitute a Change in Control if (1)  the shareholders of the Company immediately before such transaction own,  directly or indirectly, immediately following such transaction in excess of 50% of  the combined voting power of the outstanding voting securities of the corporation  or other person or entity resulting from such transaction, (2) no “person” or  “group” owns 20% or more of the outstanding voting securities of the corporation  or other person or entity resulting from such transaction, and (3) a majority of the  Incumbent Board remains; or  (iv) the approval by the shareholders of the Company of a complete liquidation or  dissolution of the Company.  (c) Disability.  For purposes of this Agreement, “Disability” shall be  defined in the same manner as such term or a similar term is defined in the Company long-term  disability plan applicable to the Executive.  





 






10 RESTRICTED  (d) Good Reason.  For purposes of this Agreement, “Good Reason”  shall mean termination of employment by the Executive because of the occurrence of any of the  following events:  (i) a failure by the Company to pay compensation or benefits due and payable to the  Executive in accordance with the terms of this Agreement;  (ii) a material change in the duties or responsibilities performed by the Executive as  Chief Executive Officer of a Public Company;  (iii) a relocation of the Company’s principal office by more than 25 miles from Palm  Beach Gardens, Florida without the Executive’s consent; or  (iv) failure by the Company to obtain agreement by a successor to assume this  Agreement in accordance with Section 17(b);  provided, however, that no event or condition described in clause (i) or (ii) shall constitute Good  Reason unless (x) the Executive gives the Company written notice of his intention to terminate  his employment for Good Reason and the grounds for such termination within 180 days of the  Executive first becoming aware of the event giving rise to such Good Reason and (y) such  grounds for termination are not corrected by the Company within 30 days of its receipt of such  notice.  6. Limitations on Severance Payment and Other Payments or Benefits.  (a) Payments.  Notwithstanding any provision of this Agreement, if  any portion of the severance payments or any other payment under this Agreement, or under any  other agreement with the Executive or plan or arrangement of the Company or its affiliates (in  the aggregate, “Total Payments”), would constitute an “excess parachute payment” and would,  but for this Section 6, result in the imposition on the Executive of an excise tax under Code  Section 4999, then the Total Payments to be made to the Executive shall either be (i) delivered in  full, or (ii) delivered in the greatest amount such that no portion of such Total Payment would be  subject to the Excise Tax, whichever of the foregoing results in the receipt by the Executive of  the greatest benefit on an after-tax basis (taking into account the Executive’s actual marginal rate  of federal, state and local income taxation and the Excise Tax).  (b) Determinations.  Within 30 days following the Executive’s  termination of employment or notice by one party to the other of its belief that there is a payment  or benefit due the Executive that will result in an excess parachute payment, the Company, at the  Company’s expense, shall select a nationally recognized certified public accounting firm (which  may be the Company’s independent auditors) (“Accounting Firm”) reasonably acceptable to the  Executive, to determine (i) the Base Amount (as defined below), (ii) the amount and present  value of the Total Payments, (iii) the amount and present value of any excess parachute  payments determined without regard to any reduction of Total Payments pursuant to Section  6(a), and (iv) the net after-tax proceeds to the Executive, taking into account the tax imposed  under Code Section 4999 if (x) the Total Payments were reduced in accordance with Section  6(a), or (y) the Total Payments were not so reduced.  If the Accounting Firm determines that  Section 6(a)(ii) above applies, then the Termination Payment hereunder or any other payment or  





 






11 RESTRICTED  benefit determined by such Accounting Firm to be includable in Total Payments shall be reduced  or eliminated so that there will be no excess parachute payment.  In such event, payments or  benefits included in the Total Payments shall be reduced or eliminated by applying the following  principles, in order:  (1) the payment or benefit with the later possible payment date shall be  reduced or eliminated before a payment or benefit with an earlier payment date; and (2) cash  payments shall be reduced prior to non-cash benefits; provided that if the foregoing order of  reduction or elimination would violate Code Section 409A, then the reduction shall be made pro  rata among the payments or benefits included in the Total Payments (on the basis of the relative  present value of the parachute payments).  (c) Definitions and Assumptions.  For purposes of this Agreement:  (i)  the terms “excess parachute payment” and “parachute payments” shall have the meanings  assigned to them in Code Section 280G and such “parachute payments” shall be valued as  provided therein; (ii) present value shall be calculated in accordance with Code Section  280G(d)(4); (iii) the term “Base Amount” means an amount equal to the Executive’s “annualized  includible compensation for the base period” as defined in Code Section 280G(d)(1); (iv) for  purposes of the determination by the Accounting Firm, the value of any non-cash benefits or any  deferred payment or benefit shall be determined in accordance with the principles of Code  Sections 280G(d)(3) and (4) and (v) the Executive shall be deemed to pay federal income tax and  employment taxes at his actual marginal rate of federal income and employment taxation, and  state and local income taxes at his actual marginal rate of taxation in the state or locality of the  Executive’s domicile (determined in both cases in the calendar year in which the termination of  employment or notice described in Section 6(b) above is given, whichever is earlier), net of the  maximum reduction in federal income taxes that may be obtained from the deduction of such  state and local taxes.  The covenants set forth in Sections 7, 8 and 9 of this Agreement have  substantial value to the Company and a portion of any Total Payments made to the Executive are  in consideration of such covenants.  For purposes of calculating the “excess parachute payment”  and the “parachute payments”, the parties intend that an amount equal to not less than the  Executive's highest annual base salary during the 12-month period immediately prior to his  termination of employment shall be in consideration of the covenants in Sections 7, 8 and 9  below.  The Accounting Firm shall consider all relevant factors in appraising the fair value of  such covenants and in determining the amount of the Total Payments that shall not be considered  to be a “parachute payment” or “excess parachute payment”.  The determination of the  Accounting Firm shall be addressed to the Company and the Executive and such determination  shall be binding upon the Company and the Executive.  (d) Amendment.  This Section 6 shall be amended to comply with any  amendment or successor provision to Sections 280G or 4999 of the Code.  7. Confidentiality.  (a) Confidential Information.  (i) The Executive agrees that during his employment with the Company for any  reason and for a period of five years following his Separation from Service, he  will not at any time, except with the prior written consent of the Company or any  of its subsidiaries or affiliates (collectively, the “Company Group”) or as required  





 






12 RESTRICTED  by law, directly or indirectly, reveal to any person, entity or other organization  (other than any member of the Company Group or its respective employees,  officers, directors, shareholders or agents) or use for the Executive’s own benefit  any information deemed to be confidential by any member of the Company Group  (“Confidential Information”) relating to the assets, liabilities, employees,  goodwill, business or affairs of any member of the Company Group, including,  without limitation, any information concerning customers, business plans,  marketing data, or other confidential information known to the Executive by  reason of the Executive’s employment by, shareholdings in or other association  with any member of the Company Group; provided that such Confidential  Information does not include any information which (x) is available to the general  public or is generally available within the relevant business or industry other than  as a result of the Executive’s action or (y) is or becomes available to the  Executive after his Separation from Service on a non-confidential basis from a  third-party source provided that such third-party source is not bound by a  confidentiality agreement or any other obligation of confidentiality.  Confidential  Information may be in any medium or form, including, without limitation,  physical documents, computer files or disks, videotapes, audiotapes, and oral  communications.  (ii) In the event that the Executive becomes legally compelled to disclose any  Confidential Information, the Executive shall provide the Company with prompt  written notice so that the Company may seek a protective order or other  appropriate remedy.  In the event that such protective order or other remedy is not  obtained, the Executive shall furnish only that portion of such Confidential  Information or take only such action as is legally required by binding order and  shall exercise his reasonable efforts to obtain reliable assurance that confidential  treatment shall be accorded any such Confidential Information.  The Company  shall promptly pay (upon receipt of invoices and any other documentation as may  be requested by the Company) all reasonable expenses and fees incurred by the  Executive, including attorneys’ fees, in connection with his compliance with the  immediately preceding sentence.  (iii) The Executive understands and acknowledges that the Executive has the right  under U.S. federal law to certain protections for cooperating with or reporting  legal violations to the Securities and Exchange Commission and/or its Office of  the Whistleblower, as well as certain other governmental entities.  No provisions  in this Agreement are intended to prohibit the Executive from disclosing this  Agreement to, or from cooperating with or reporting violations to, the SEC or any  other such governmental entity, and the Executive may do so without disclosure  to the Company.  The Company may not retaliate against the Executive for any of  these activities.  Further, nothing in this Agreement precludes the Executive from  filing a charge of discrimination with the Equal Employment Opportunity  Commission or a like charge or complaint with a state or local fair employment  practice agency.  





 






13 RESTRICTED  (iv) The Executive acknowledges that, pursuant to the Defend Trade Secrets Act of  2016, an individual may not be held liable under any criminal or civil federal or  state trade secret law for disclosure of a trade secret (i) made in confidence to a  government official, either directly or indirectly, or to an attorney, solely for the  purpose of reporting or investigating a suspected violation of law, (ii) in a  complaint or other document filed in a lawsuit or other proceeding, if such filing  is made under seal or (iii) made to his or her attorney or used in a court  proceeding in an anti-retaliation lawsuit based on the reporting of a suspected  violation of law, so long as any document containing the trade secret is filed  under seal and the individual does not disclose the trade secret except pursuant to  court order.  (b) Exclusive Property.  The Executive confirms that all Confidential  Information is and shall remain the exclusive property of the Company Group.  All business  records, papers and documents kept or made by the Executive relating to the business of the  Company Group shall be and remain the property of the Company Group.  Upon the request and  at the expense of the Company Group, the Executive shall promptly make all disclosures,  execute all instruments and papers and perform all acts reasonably necessary to vest and confirm  in the Company Group, fully and completely, all rights created or contemplated by this  Section 7.  8. Noncompetition.  The Executive agrees that during his employment with  the Company and for a period commencing on the Executive’s Separation from Service and  ending on the later of (i) the first anniversary of the Executive’s Separation from Service and, to  the extent the Executive is entitled to any continued vesting under Section 4(a) or 4(e)(ii) of this  Agreement, (ii) the duration of any such continued vesting period but only for so long as the  applicable equity award remains unvested (the “Restricted Period”), the Executive shall not,  without the prior written consent of the Company, directly or indirectly, and whether as principal  or investor or as an employee, officer, director, manager, partner, consultant, agent or otherwise,  alone or in association with any other person, firm, corporation or other business organization,  carry on a business competitive with the Company in any geographic area in which the Company  Group has engaged in business, or is reasonably expected to engage in business during such  Restricted Period (including, without limitation, any area in which any customer of the Company  Group may be located); provided, however, that nothing herein shall limit the Executive’s right  to own not more than 1% of any of the debt or equity securities of any business organization.  9. Non-Solicitation.  The Executive agrees that, during his employment and  for the Restricted Period, the Executive shall not, directly or indirectly, other than in connection  with the proper performance of his duties in his capacity as an executive of the Company,  (a) interfere with or attempt to interfere with any relationship between the Company Group and  any of its employees, consultants, independent contractors, agents or representatives, (b) employ,  hire or otherwise engage, or attempt to employ, hire or otherwise engage, any current or former  employee, consultant, independent contractor, agent or representative of the Company Group in  a business competitive with the Company Group, (c) solicit the business or accounts of the  Company Group or (d) divert or attempt to direct from the Company Group any business or  interfere with any relationship between the Company Group and any of its clients, suppliers,  customers or other business relations.  As used herein, the term “indirectly” shall include,  





 






14 RESTRICTED  without limitation, the Executive’s permitting the use of the Executive’s name by any competitor  of any member of the Company Group to induce or interfere with any employee or business  relationship of any member of the Company Group.  10. Assignment of Developments.  The Executive previously entered into an  Employee Invention, Proprietary Information and Copyright Agreement, dated September 19,  2007 (“Assignment of Developments Agreement”).  The Executive agrees that the terms of such  Assignment of Developments Agreement shall continue in full force and effect.  11. Full Settlement.  Prior to the effective date of a Change in Control, in the  event the Company believes that the Executive is in material breach or has materially breached a  provision of this Agreement, the Company may withhold any further payment of amounts due  and payable under this Agreement, provided that (x) the Company gives the Executive at least 15  days’ prior written notice of a special Board meeting called to make a determination that the  Executive is in material breach or has materially breached a provision of this Agreement and the  Executive and his legal counsel are given the opportunity to address such meeting prior to a vote  of the Board and (y) a determination that the Executive is in material breach or has materially  breached a provision of this Agreement is made and approved by 75% of the Board.  Any such  determination by the Board shall not be binding on an arbitrator or other trier of fact as to  whether the Executive has breached this Agreement, and shall not limit or otherwise affect the  rights or remedies available to the Executive or the Company in the event of a dispute under this  Agreement.  Except as provided above in this Section 11, the Company’s obligation to pay the  Executive the amounts required by this Agreement shall be absolute and unconditional and shall  not be affected by any circumstances, including, without limitation, any offset, counterclaim,  recoupment, defense or other right which the Company may have against the Executive or  anyone else.  All payments and benefits to which the Executive is entitled under this Agreement  shall be made and provided without offset, deduction, or mitigation on account of income that  the Executive may receive from employment from the Company or otherwise.  This Section  11 shall not be interpreted to otherwise limit the remedies available to the Company, whether at  law or in equity, in the event the Executive breaches any provision of this Agreement.  12. Certain Remedies.  (a) Injunctive Relief.  Without intending to limit the remedies  available to the Company Group, the Executive agrees that a breach of any of the covenants  contained in Sections 7 through 10 of this Agreement may result in material and irreparable  injury to the Company Group for which there is no adequate remedy at law, that it will not be  possible to measure damages for such injuries precisely and that, in the event of such a breach or  threat thereof, any member of the Company Group shall be entitled to seek a temporary  restraining order or a preliminary or permanent injunction, or both, without bond or other  security, restraining the Executive from engaging in activities prohibited by the covenants  contained in Sections 7 through 10 of this Agreement or such other relief as may be required  specifically to enforce any of the covenants contained in this Agreement.  Such injunctive relief  in any court shall be available to the Company Group in lieu of, or prior to or pending  determination in, any arbitration proceeding.  





 






15 RESTRICTED  (b) Extension of Restricted Period.  In addition to the remedies the  Company may seek and obtain pursuant to this Section 12, the Restricted Period shall be  extended by any and all periods during which the Executive shall be found by a court or  arbitrator possessing personal jurisdiction over him to have been in violation of the covenants  contained in Sections 8 and 9 of this Agreement.  13. Section 409A of the Code.  (a) General.  This Agreement is intended to meet the requirements of  Section 409A of the Code, and shall be interpreted and construed consistent with that intent.  (b) Deferred Compensation.  Notwithstanding any other provision of  this Agreement, to the extent that the right to any payment (including the provision of benefits)  hereunder provides for the “deferral of compensation” within the meaning of Section 409A(d)(1)  of the Code, the payment shall be paid (or provided) in accordance with the following:  (i) If the Executive is a “Specified Employee” within the meaning of  Section 409A(a)(2)(B)(i) of the Code on the date of the Executive’s “Separation  from Service” within the meaning of Section 409A(a)(2)(A)(i) of the Code, then  no such payment shall be made or commence during the period beginning on the  date of the Executive’s Separation from Service and ending on the date that is  six months following the Executive’s Separation from Service or, if earlier, on the  date of the Executive’s death.  The amount of any payment that would otherwise  be paid to the Executive during this period shall instead be paid to the Executive  on the fifteenth day of the first calendar month following the end of the period  (“Delayed Payment Date”).  If payment of an amount is delayed as a result of this  Section 13(b)(i), such amount shall be increased with interest from the date on  which such amount would otherwise have been paid to the Executive but for this  Section 13(b)(i) to the day prior to the Delayed Payment Date.  The rate of  interest shall be compounded monthly, at the prime rate as published by Citibank  NA for the month in which occurs the date of the Executive’s Separation from  Service.  Such interest shall be paid on the Delayed Payment Date.  (ii) Payments with respect to reimbursements of expenses shall be made in  accordance with Company policy and in no event later than the last day of the  calendar year following the calendar year in which the relevant expense is  incurred.  The amount of expenses eligible for reimbursement during a calendar  year may not affect the expenses eligible for reimbursement in any other calendar  year.  14. Source of Payments.  All payments provided under this Agreement, other  than payments made pursuant to a plan which provides otherwise, shall be paid in cash from the  general funds of the Company, and no special or separate fund shall be established, and no other  segregation of assets shall be made, to assure payment.  The Executive shall have no right, title  or interest whatsoever in or to any investments which the Company may make to aid the  Company in meeting its obligations hereunder.  To the extent that any person acquires a right to  





 






16 RESTRICTED  receive payments from the Company hereunder, such right shall be no greater than the right of an  unsecured creditor of the Company.  15. Arbitration.  Any dispute or controversy arising under or in connection  with this Agreement or otherwise in connection with the Executive’s employment by the  Company that cannot be mutually resolved by the parties to this Agreement and their respective  advisors and representatives shall be settled exclusively by arbitration in Palm Beach County,  Florida in accordance with the commercial rules of the American Arbitration Association before  one arbitrator of exemplary qualifications and stature, who shall be selected jointly by an  individual to be designated by the Company and an individual to be selected by the Executive, or  if such two individuals cannot agree on the selection of the arbitrator, who shall be selected by  the American Arbitration Association, and judgment upon the award rendered may be entered in  any court having jurisdiction thereon.  16. Attorney’s Fees.  The Company shall, from time to time, pay or reimburse  the Executive, on an after-tax basis, for all reasonable legal fees and expenses (including court  costs) incurred by him as a result of any claim by him (or on his behalf) to enforce the terms of  this Agreement or collect any payments or benefits due to the Executive hereunder.  Payments  with respect to such legal fees and expenses shall be made in advance of any final disposition  and within ten business days after the Executive submits documentation of such fees to the  Company in accordance with the Company’s business expense reimbursement policies and  procedures.  17. Non-assignability; Binding Agreement.  (a) By the Executive.  This Agreement and any and all rights, duties,  obligations or interests hereunder shall not be assignable or delegable by the Executive.  (b) By the Company.  This Agreement and all of the Company’s rights  and obligations hereunder shall not be assignable by the Company except as incident to a  reorganization, merger or consolidation, or transfer of all or substantially all of the Company’s  assets.  If the Company shall be merged or consolidated with another entity, the provisions of  this Agreement shall be 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 all or substantially all of the  business and/or assets of the Company, by agreement in form and substance satisfactory to the  Executive, to expressly assume and agree to perform this Agreement in the same manner that the  Company would be required to perform it if no such succession had taken plan.  The provisions  of this paragraph shall continue to apply to each subsequent employer of the Executive hereunder  in the event of any subsequent merger, consolidation, transfer of assets of such subsequent  employer or otherwise.  (c) Binding Effect.  This Agreement shall be binding upon, and inure  to the benefit of, the parties hereto, any successors to or assigns of the Company and the  Executive’s heirs and the personal representatives of the Executive’s estate.  





 






17 RESTRICTED  18. Withholding.  Any payments made or benefits provided to the Executive  under this Agreement shall be reduced by any applicable withholding taxes or other amounts  required to be withheld by law or contract.  19. Amendment; Waiver.  This Agreement may not be modified, amended or  waived in any manner, except by an instrument in writing signed by both parties hereto.  The  waiver by either party of compliance with any provision of this Agreement by the other party  shall not operate or be construed as a waiver of any other provision of this Agreement, or of any  subsequent breach by such party of a provision of this Agreement.  20. Governing Law.  All matters affecting this Agreement, including the  validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws  of the State of Florida applicable to contracts executed in and to be performed in that State.  21. Survival of Certain Provisions.  The rights and obligations set forth in this  Agreement that, by their terms, extend beyond the Term shall survive the Term.  22. Entire Agreement; Supersedes Previous Agreements.  This Agreement, the  Assignment of Developments Agreement, the Salary Reduction Letter, and any outstanding  equity award agreements entered into prior to the Effective Date contain the entire agreement  and understanding of the parties hereto with respect to the matters covered herein including,  without limitation, the Existing Employment Agreement, and supersede all prior or  contemporaneous negotiations, commitments, agreements and writings with respect to the  subject matter hereof (including the Existing Employment Agreement), all such other  negotiations, commitments, agreements and writings shall have no further force or effect, and the  parties to any such other negotiation, commitment, agreement or writing shall have no further  rights or obligations thereunder.  23. Counterparts.  This Agreement may be executed by either of the parties  hereto in counterparts, each of which shall be deemed to be an original, but all such counterparts  shall together constitute one and the same instrument.  24. Headings.  The headings of sections herein are included solely for  convenience of reference and shall not control the meaning or interpretation of any of the  provisions of this Agreement.  25. Notices.  All notices or communications hereunder shall be in writing,  addressed as follows:  To the Company:  11780 US Highway 1, Suite 600  Palm Beach Gardens, Florida 33408  Attention:  General Counsel  Email: ryan.urness@dycominc.com 





 






18 RESTRICTED  With a copy to:    John J. Cannon III  Shearman & Sterling LLP  599 Lexington Avenue  New York, NY 10022  Email:  jcannon@shearman.com To the Executive:  Steven E. Nielsen  c/o Dycom Industries, Inc.  11780 US Highway 1, Suite 600  Palm Beach Gardens, Florida 33408  Email: steve.nielsen@dycominc.com With a copy to the Executive’s counsel:  Harvey Koning, Esq.  Varnum LLP  333 Bridge Street NW  Grand Rapids, Michigan 49504  Email: hkoning@varnumlaw.com All such notices shall be conclusively deemed to be received and shall be  effective (i) if sent by hand delivery, upon receipt or (ii) if sent by electronic mail or facsimile,  upon receipt by the sender of confirmation of such transmission; provided, however, that any  electronic mail or facsimile will be deemed received and effective only if followed, within 48  hours, by a hard copy sent by certified United States mail.  [SIGNATURE PAGE FOLLOWS]  





 






19 RESTRICTED  IN WITNESS WHEREOF, the Company has caused this Agreement to be signed  by its officer pursuant to the authority of its Board, and the Executive has executed this  Agreement, as of the day and year first written above.  DYCOM INDUSTRIES, INC.  By: Name: Ryan F. Urness   Title: Vice President, General  Counsel and Secretary  EXECUTIVE  Name:  Steven E. Nielsen  





 






A-1 RESTRICTED  EXHIBIT A  FORM OF WAIVER AND MUTUAL RELEASE  This Waiver and Mutual Release, dated as of _____________, (this “Release”) by  and between Steven E. Nielsen (the “Executive”) and Dycom Industries, Inc., a Florida  corporation (the “Company”).  WHEREAS, the Executive and the Company are parties to an Employment  Agreement, dated May 21, 2020 (the “Employment Agreement”), which provided for the  Executive’s employment on the terms and conditions specified therein; and  WHEREAS, pursuant to Section 4(f) of the Employment Agreement, the  Executive has agreed to execute and deliver a release and wavier of claims of the type and nature  set forth herein as a condition to his entitlement to certain payments and benefits upon his  termination of employment with the Company effective as of _____________ (the “Effective  Date”).  NOW, THEREFORE, in consideration of the premises and mutual promises  herein contained and for other good and valuable consideration received or to be received in  accordance with the terms of the Employment Agreement, the Executive and the Company agree  as follows:  1. Return of Property.  On or prior to the Effective Date, the Executive  represents and warrants that he will return all property made available to him in connection with  his service to the Company, 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 and its subsidiaries and affiliates, all  computer hardware or software, cellular phones, files, memoranda, correspondence, vendor and  customer lists, financial data, keys and security access cards.  2. Executive Release.  (a) In consideration of the payments and benefits provided to the  Executive under the Employment Agreement and after consultation with counsel, the Executive  and each of the Executive’s respective heirs, executors, administrators, representatives, agents,  successors and assigns (collectively, the “Executive Parties”) hereby irrevocably and  unconditionally release and forever discharge the Company and its subsidiaries and affiliates and  each of their respective officers, employees, directors, shareholders and agents (“Company  Parties”) from any and all claims, actions, causes of action, rights, judgments, obligations,  damages, demands, accountings or liabilities of whatever kind or character (collectively,  “Claims”), including, without limitation, any Claims under any federal, state, local or foreign  law, that the Executive Parties may have, or in the future may possess, arising out of (i) the  Executive’s employment relationship with and service as an employee, officer or director of the  Company, and the termination of such relationship or service, and (ii) any event, condition,  circumstance or obligation that occurred, existed or arose on or prior to the date hereof;  provided, however, that the Executive does not release, discharge or waive (i) any rights to  payments and benefits provided under the Employment Agreement that are contingent upon the  





 






A-2 RESTRICTED  execution by the Executive of this Release, (ii) any right the Executive may have to enforce this  Release or the Employment Agreement, (iii) the Executive’s eligibility for indemnification in  accordance with the Company’s certificate of incorporation, bylaws or other corporate  governance document, or any applicable insurance policy, with respect to any liability he  incurred or might incur as an employee, officer or director of the Company, or (iv) any claims  for accrued, vested benefits under any long-term incentive, employee benefit or retirement plan  of the Company subject to the terms and conditions of such plan and applicable law including,  without limitation, any such claims under the Employee Retirement Income Security Act of  1974.  (b) Whistleblower Rights.  The Executive understands and  acknowledges that the Executive has the right under U.S. federal law to certain protections for  cooperating with or reporting legal violations to the Securities and Exchange Commission and/or  its Office of the Whistleblower, as well as certain other governmental entities.  No provisions in  this Release are intended to prohibit the Executive from disclosing this Release to, or from  cooperating with or reporting violations to, the SEC or any other such governmental entity, and  the Executive may do so without disclosure to the Company.  The Company may not retaliate  against Executive for any of these activities.  Further, nothing in this Release precludes the  Executive from filing a charge of discrimination with the Equal Employment Opportunity  Commission or a like charge or complaint with a state or local fair employment practice agency.   The Company may not retaliate against Executive for any of these activities, and nothing in this  Release would require Executive to waive any monetary award or other payment that Executive  might become entitled to from any such governmental entity.  (c) DTSA.  The Executive acknowledges that, pursuant to the Defend  Trade Secrets Act of 2016, an individual may not be held liable under any criminal or civil  federal or state trade secret law for disclosure of a trade secret (i) made in confidence to a  government official, either directly or indirectly, or to an attorney, solely for the purpose of  reporting or investigating a suspected violation of law, (ii) in a complaint or other document filed  in a lawsuit or other proceeding, if such filing is made under seal or (iii) made to his or her  attorney or used in a court proceeding in an anti-retaliation lawsuit based on the reporting of a  suspected violation of law, so long as any document containing the trade secret is filed under seal  and the individual does not disclose the trade secret except pursuant to court order.  (d) Executive’s Specific Release of ADEA Claims.  In further  consideration of the payments and benefits provided to the Executive under the Employment  Agreement, the Executive Parties hereby unconditionally release and forever discharge the  Company Parties from any and all Claims that the Executive Parties may have as of the date the  Executive signs this Release arising under the Federal Age Discrimination in Employment Act of  1967, as amended, and the applicable rules and regulations promulgated thereunder  (“ADEA”).  By signing this Release, the Executive hereby acknowledges and confirms the  following:  (i) the Executive was advised by the Company in connection with his termination to  consult with an attorney of his choice prior to signing this Release and to have such attorney  explain to the Executive the terms of this Release, including, without limitation, the terms  relating to the Executive’s release of claims arising under ADEA, and the Executive has in fact  consulted with an attorney; (ii) the Executive was given a period of not fewer than 21 days to  consider the terms of this Release and to consult with an attorney of his choosing with respect  





 






A-3 RESTRICTED  thereto; and (iii) the Executive knowingly and voluntarily accepts the terms of this Release.  The  Executive also understands that he has seven days following the date on which he signs this  Release (the “Revocation Period”) within which to revoke the release contained in this  paragraph, by providing the Company a written notice of his revocation of the release and waiver  contained in this paragraph.  No such revocation by the Executive shall be effective unless it is in  writing and signed by the Executive and received by the Company prior to the expiration of the  Revocation Period.  3. Company Release.  The Company for itself and on behalf of the Company  Parties hereby irrevocably and unconditionally release and forever discharge the Executive  Parties from any and all Claims, including, without limitation, any Claims under any federal,  state, local or foreign law, that the Company Parties may have, or in the future may possess,  arising out of (i) the Executive’s employment relationship with and service as an employee,  officer or director of the Company, and the termination of such relationship or service, and  (ii) any event, condition, circumstance or obligation that occurred, existed or arose on or prior to  the date hereof, excepting any Claim which would constitute or result from conduct by the  Executive that would constitute a crime under applicable state or federal law; provided, however,  notwithstanding the generality of the foregoing, nothing herein shall be deemed to release the  Executive Parties from (A) any rights or claims of the Company arising out of or attributable to  (i) the Executive’s actions or omissions involving or arising from fraud, deceit, theft or  intentional or grossly negligent violations of law, rule or statute while employed by the Company  and (ii) the Executive’s actions or omissions taken or not taken in bad faith with respect to the  Company; and (B) the Executive or any other Executive Party’s obligations under this Release or  the Employment Agreement.  4. No Assignment.  The parties represent and warrant that they have not  assigned any of the Claims being released under this Release.  5. Proceedings.  The parties represent and warrant that they have not filed,  and they agree not to initiate or cause to be initiated on their behalf, any complaint, charge, claim  or proceeding against the other party before any local, state or federal agency, court or other  body relating to the Executive’s employment or the termination thereof, other than with respect  to any claim that is not released hereunder including with respect to the obligations of the  Company to the Executive and the Executive to the Company under the Employment Agreement  (each, individually, a “Proceeding”), and each party agrees not to participate voluntarily in any  Proceeding.  The parties waive any right they may have to benefit in any manner from any relief  (whether monetary or otherwise) arising out of any Proceeding.  6. Remedies.  (a) Each of the parties understand that by entering into this Release  such party will be limiting the availability of certain remedies that such party may have against  the other party and also limiting such party’s ability to pursue certain claims against the other  party.  (b) Each of the parties acknowledge and agree that the remedy at law  available to such party for breach of any of the obligations under this Release would be  





 






A-4 RESTRICTED  inadequate and that damages flowing from such a breach may not readily be susceptible to being  measured in monetary terms.  Accordingly, each of the parties acknowledge, consent and agree  that, in addition to any other rights or remedies that such party may have at law or in equity, such  party shall be entitled to seek a temporary restraining order or a preliminary or permanent  injunction, or both, restraining the other party from breaching its obligations under this  Release.  Such injunctive relief in any court shall be available to the relevant party, in lieu of, or  prior to or pending determination in, any arbitration proceeding.  7. Cooperation.  From and after the Effective Date, the Executive shall  cooperate in all reasonable respects with the Company and their respective directors, officers,  attorneys and experts in connection with the conduct of any action, proceeding, investigation or  litigation involving the Company, including any such action, proceeding, investigation or  litigation in which the Executive is called to testify.  8. Unfavorable Comments.  (a) Public Comments by the Executive.  The Executive agrees to  refrain from making, directly or indirectly, now or at any time in the future, whether in writing,  orally or electronically:  (i) any derogatory comment concerning the Company or any of their  current or former directors, officers, employees or shareholders, or (ii) any other comment that  could reasonably be expected to be detrimental to the business or financial prospects or  reputation of the Company.  (b) Public Comments by the Company.  The Company agrees to  instruct its directors and employees to refrain from making, directly or indirectly, now or at any  time in the future, whether in writing, orally or electronically:  (i) any derogatory comment  concerning the Executive, or (ii) any other comment that could reasonably be expected to be  detrimental to the Executive’s business or financial prospects or reputation.  9. Severability Clause.  In the event any provision or part of this Release is  found to be invalid or unenforceable, only that particular provision or part so found, and not the  entire Release, will be inoperative.  10. Nonadmission.  Nothing contained in this Release will be deemed or  construed as an admission of wrongdoing or liability on the part of the Company or the  Executive.  11. Governing Law.  All matters affecting this Release, including the validity  thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the  State of Florida applicable to contracts executed in and to be performed in that State.  12. Arbitration.  Any dispute or controversy arising under or in connection  with this Release shall be resolved in accordance with Section 15 of the Employment  Agreement.  13. Notices.  All notices or communications hereunder shall be made in  accordance with Section 25 of the Employment Agreement:  





 






A-5 RESTRICTED  THE EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS  RELEASE AND THAT HE FULLY KNOWS, UNDERSTANDS AND APPRECIATES ITS  CONTENTS, AND THAT HE HEREBY EXECUTES THE SAME AND MAKES THIS  RELEASE AND THE RELEASES PROVIDED FOR HEREIN VOLUNTARILY AND OF HIS  OWN FREE WILL.  [SIGNATURE PAGE FOLLOWS]  





 






A-6 RESTRICTED  IN WITNESS WHEREOF, the parties have executed this Release as of the date  first set forth above.  DYCOM INDUSTRIES, INC.  By: Name: Title:  EXECUTIVE  By: Name:  Steven E. Nielsen