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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
DYCOM INDUSTRIES, INC..
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
267475101
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(CUSIP Number)
Joseph T. Kelley, Jr., Esq. 925 Harvest Drive, Suite 160
Kelley and Murphy Blue Bell, PA 19422
Union Meeting Corporate Center V (215) 643-6500
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 29, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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- -------------------------------------------------------------------------------
CUSIP No. 26475101 Page 2 of 6 Pages
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1 NAME OF REPORTING PERSONS
S.S OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
George Tamasi
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OR ORGANIZATION
USA
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NUMBER OF | 7 | SOLE VOTING POWER 1,026,621
SHARES | |
BENEFICIALLY | |
OWNED BY | 8 | SHARED VOTING POWER 0
EACH | |
REPORTING | 9 | SOLE DISPOSITIVE POWER 1,026,621
PERSON WITH | |
| |
| 10 | SHARED DISPOSITIVE POWER 0
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,026,621
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [ ]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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1. Security and Issuer.
This Statement relates to the common stock ("Common Stock") of Dycom
Industries, Inc., a Florida corporation (the "Issuer"). The address of the
Issuer's principal executive offices is 4440 PGA Boulevard, Suite 600, Palm
Beach Gardens, FL 33410.
2. Identity and Background.
(a) Name. This Statement is being filed by George Tamasi ("GT"). The
filing of this Statement shall not be construed as an admission that GT is, for
the purposes of Section 13(d) or 13(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the beneficial owner of any securities covered
by this Statement or that this schedule is required to be filed by such person.
(b) Business Address. The business address for GT is 235 East Gay
Street, West Chester, PA 19380.
(c) Present Principal Occupation or Employment. GT is President and
Chief Executive Officer of Communications Construction Group, Inc. ("CCG"), 235
East Gay Street, West Chester, PA 19380. CCG, a wholly-owned subsidiary of
Issuer, provides construction and engineering services to the telecommunications
industry.
(d) Criminal Convictions. During the last five years, GT has not been
convicted in a criminal proceeding, excluding traffic violations and similar
misdemeanors.
(e) Court or Administrative Proceedings. During the last five years, GT
has not been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction as a result of which was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) Citizenship. GT is a citizen of the United States of America.
3. Source and Amounts of Funds and Other Consideration.
Pursuant to the terms of an Agreement and Plan of Merger dated July 7,
1997, as amended on July 29, 1997 (the "Merger Agreement"), by and among CCG,
GT, Thomas Polis, Issuer and Issuer's wholly-owned subsidiary, Dycom
Acquisition, Inc. ("DAI"), under which DAI merged into CCG, on July 29, 1997 GT
acquired 1,026,621 shares of the Common Stock of Issuer.
4. Purpose of Transaction.
The acquisition of the shares of Common Stock of Issuer by GT is for
investment purposes.
Page 3 of 6
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Except as discussed below, GT has no present plans or proposals which
relate to or would result in any of the following:
(a) the acquisition by any person of additional securities of the
Issuer, or the disposition of securities of the Issuer, except that pursuant to
the Merger Agreement, upon request of GT, Issuer shall use its best efforts to
(i) file within 120 days of such request a registration statement under the
Securities Act of 1933, as amended (the "Act"), covering the proposed sale or
distribution referred to in such notice, (ii) cause such registration statement
to become effective under the Act as soon as possible after the filing thereof,
and (iii) cause such registration statement to remain effective for so long as a
prospectus may be required to be delivered pursuant to the Act. Pursuant to the
Merger Agreement, GT may only propose to sell or distribute publicly up to the
greater of (x) 1,000,000 or (y) 50% of the shares of Issuer's Common Stock
acquired by GT under the Merger Agreement;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Issuer or
any of its subsidiaries;
(d) any change in the present board of directors or management of the
Issuer, including any plans or proposals to change the number or term of the
directors or to fill any existing vacancies of the board, except that pursuant
to the Merger Agreement, GT has the right to nominate a person, including
himself, to be a member of the Board of Directors of Issuer. Any such nominee
shall be subject to approval by Issuer and, if required, to the approval of
Issuer's shareholders. This right to propose a nominee shall be exercisable only
(i) after the expiration of six months following the date of closing under the
Merger Agreement, (ii) during the initial term of GT's employment agreement, and
(iii) while GT remains record owner of 250,000 shares of Issuer's Common Stock
acquired by him as a result of the merger or otherwise;
(e) any material change in the present capitalization or dividend
policy of the Issuer;
(f) any other material change in the Issuer's business or corporate
structure;
(g) changes in the Issuer's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Issuer by any person;
(h) causing a class of securities of the Issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) a class of eligible equity securities of the issuer becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the
Exchange Act; or
Page 4 of 6
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(j) any action similar to those enumerated above.
5. Interest in Securities of the Issuer.
(a) As of the date hereof, GT may be deemed to be the beneficial owner
of 1,026,621 shares of Issuer's Common Stock, which represents 9.5% of Issuer's
outstanding Common Stock.
(b) GT has sole voting and sole dispositive power with respect to the
shares of Common Stock beneficially owned by him.
(c) Except as described in Item 3 above, GT does not own beneficially
any shares of Common Stock of Issuer or effected any transaction in shares of
Common Stock of Issuer during the 60 days preceding the date of this Statement.
(d) No person other than GT is known to GT to have the right to receive
or the power to direct the receipt of dividends from, or the proceeds from the
sale of, the shares of Common Stock beneficially owned by him.
(e) Not applicable.
6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Other than as indicated elsewhere in this Statement, GT is not a party
to any contract, arrangement, understanding, or relationship (legal or
otherwise) with any person with respect to any securities of the Issuer,
including but not limited to, the transfer or voting of any of the Issuer's
securities, finder's fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
7. Material to be Filed as Exhibits:
Exhibit A: Agreement and Plan of Merger, dated July 7, 1997,
among CCG, GT, Thomas Polis, Issuer and DAI.
Exhibit B: Amendment to Agreement and Plan of Merger, dated
July 29, 1997, among CCG, GT, Thomas Polis, Issuer
and DAI.
Page 5 of 6
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Signatures:
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 6, 1997 /s/ George Tamasi
---------------------------
GEORGE TAMASI
Page 6 of 6
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
AMONG COMMUNICATIONS CONSTRUCTION GROUP, INC.,
GEORGE TAMASI, THOMAS POLIS, DYCOM INDUSTRIES, INC.
AND DYCOM ACQUISITIONS, INC.
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is entered into this
7th day of July, 1997 among Communications Construction Group, Inc., a
Pennsylvania corporation ("Communications"), George Tamasi and Thomas Polis
(collectively "Communications Shareholders"), Dycom Industries, Inc., a Florida
corporation ("Dycom"), and Dycom Acquisitions, Inc., a Pennsylvania corporation
("Acquisitions").
W I T N E S S E T H
WHEREAS, the parties hereto desire that Acquisitions be merged with and
into Communications (the "Merger") upon the terms and subject to the conditions
set forth in this Agreement and in accordance with the Business Corporation Law
of the Commonwealth of Pennsylvania, all for the purpose of carrying out a
reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(E) of
the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained the parties hereto agree as
follows:
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ARTICLE I
Merger
Section 1.1 Surviving Corporation. At the Effective Time, as defined in
Section 1.2, Acquisitions shall be merged into Communications which shall be the
surviving corporation (the "Surviving Corporation").
Section 1.2 Effective Time. Subject to the terms of this Agreement, the
Merger shall become effective at 12:00 midnight on July 31, 1997 (the "Effective
Time"), unless the Articles of Merger are filed subsequent to July 31, 1997, in
which event the merger shall become effective at the time the Articles of Merger
are filed with the Secretary of the Commonwealth of Pennsylvania. The Articles
of Merger shall be filed with the Commonwealth of Pennsylvania in substantially
the form of Exhibit A hereto or such other form reasonably satisfactory to the
parties hereto (the "Articles of Merger") and consistent with this Agreement.
Section 1.3 Further Assurances. If at any time after the Effective
Time, either party shall determine that any further assignments, assumptions or
assurances in law or any other things are necessary or desirable to vest,
perfect or confirm of record or otherwise, in any party the title to any
property or, right acquired or to be acquired by reason or as a result of the
Merger, the proper officers and directors of the Surviving Corporation or, as
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the case may be, the Communications Shareholders and Dycom shall execute and
deliver all deeds, assignments and assurances in law and do all things
reasonably necessary or proper to vest, perfect and confirm title to such
property or rights and otherwise to carry out the terms and conditions of this
Agreement, all at the cost and expense of the Surviving Corporation.
Section 1.4 By-Laws. The by-laws of Acquisitions in effect immediately
prior to the Effective Time shall be and, until amended as therein provided,
continue to be the by-laws of the Surviving Corporation after the Effective
Time.
Section 1.5 Articles of Incorporation. The Articles of Incorporation
of Acquisitions as amended and in effect immediately prior to the Effective Time
shall be and, until further amended as provided by law, continue to be the
Articles of Incorporation of the Surviving Corporation.
Section 1.6 Directors. The members of the Board of Directors of
Acquisitions immediately prior to the Effective Time shall constitute the Board
of Directors of the Surviving Corporation after the Effective Time until their
successors shall have been elected and qualified as provided in the by-laws of
the Surviving Corporation and this Agreement.
ARTICLE II
Conversion of Shares
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At the Effective Time:
Section 2.1 Acquisitions Stock. Each share of the common stock of
Acquisitions issued and outstanding immediately prior to the Effective Time
shall by reason of the merger and without any action on the part of the holder
thereof, be converted into and become one share of the common stock of the
Surviving Corporation, and each certificate representing outstanding shares of
the common stock of Acquisitions immediately prior to the Effective Time shall
thereupon become and be deemed for all corporate purposes to evidence the
ownership of the same number of fully paid and non-assessable shares of the
common stock of the Surviving Corporation.
Section 2.2 Communications Common Stock. Each and every share of the
common stock of Communications, $1.00 par value and preferred shares of
Communications, $25.00 par value ("Communications Shares"), issued and
outstanding immediately prior to the Effective Time (other than treasury shares,
if any, held by Communications, all of which treasury shares shall be canceled
as of the Effective Time) shall be converted automatically and without any
action on the part of the holder thereof into the number of shares of the common
stock of Dycom ("Dycom Shares") equal to the quotient of: (i) 28,000,000 divided
by the number of Communications shares issued and outstanding immediately prior
to the Effective Time (other than Communications Shares held by Communications
as
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treasury shares); divided by (ii) the mean average of the respective prices of
Dycom common stock (as reported in the Wall Street Journal) for the five (5)
business days immediately preceding the date of this Agreement.
Section 2.3 Surrenderinq Procedure. Upon the Effective Time,
Communications shall cause all certificates which previously represented
outstanding shares of its capital stock to be canceled and surrendered to the
Surviving Corporation or any agent designated by it, and, upon such cancellation
and surrender, the Surviving Corporation or its agent, as agent for Dycom, shall
deliver in substitution therefor certificates representing the number of full
Dycom Shares (no fractional shares or cash in lieu thereof shall be delivered)
into which such shares have been converted as aforesaid.
ARTICLE III
Effect of Merger
Section 3 Upon the Effective Time:
(a) Acquisitions and Communications shall become a single corporation
of which Communications shall be the Surviving Corporation and continue its
corporate existence under the laws of the Commonwealth of Pennsylvania; the name
of the Surviving Corporation shall be "Communications Construction Group, Inc."
(b) The separate existence of Acquisitions shall cease, and
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the Surviving Corporation shall possess all the rights, privileges, immunities
and franchises, of a public as well as of a private nature, of Communications
and of Acquisitions. All property, real, personal and mixed, all debts due on
whatever account, all other choses in action and all and every other interest of
or belonging to or due to Communications or Acquisitions shall be taken and
deemed to be transferred to and vested in the Surviving Corporation without
further act or deed; and the title to any real estate, or any interest therein,
vested in Communications or Acquisitions shall not revert or be in any way
impaired by reason of the Merger. The Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of Communications
and Acquisitions and any claim existing or action or proceeding pending by or
against Communications or Acquisitions may be prosecuted as if the Merger had
not taken place, or the Surviving Corporation may be substituted in place of
Communications or Acquisitions. Neither the right of creditors nor any liens
upon the property of Communications or Acquisitions shall be impaired by the
Merger.
ARTICLE IV
Representations and Warranties of Communications
and the Communications Shareholders
Communications and each of the Communications Shareholders
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represent and warrant (except as indicated to the contrary below) to
Acquisitions and Dycom as follows:
Section 4.1 Due Incorporation, etc. Communications is a validly
organized and existing corporation in subsistence under the laws of the
Commonwealth of Pennsylvania and satisfactory evidence of such good standing has
heretofore been or will promptly be delivered to Acquisitions and Dycom.
Communications has all requisite corporate powers to carry on its business as it
is now being conducted, is qualified to do business and is in good standing in
every jurisdiction in which the character and location of its assets or the
nature of the business transacted by it requires such qualification, except
where the failure to be so qualified and in good standing would not have a
material and adverse effect on Communications. The copies of the Articles of
Incorporation and by-laws, and all amendments thereto, of Communications, which
have heretofore been or promptly will be delivered to Acquisitions and Dycom,
are complete and correct.
Section 4.2 Shareholders and Directors. The shareholders of
Communications, the number of Communications Shares held by each shareholder,
and all directors of Communications are listed on Schedule 4.2 hereto.
Section 4.3 Capitalization. The authorized capital stock of
Communications consists of 1,000 shares of Communications common
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stock, having a par value of $1.00 per share, of which 140 shares are issued and
outstanding, and 2,000 shares of preferred stock, having a par value of $25.00
per share, all of which are issued and outstanding. All of the outstanding
Communications Shares have been validly issued and are fully paid and
nonassessable. Communications does not have any commitment to issue or sell
shares of its stock or any securities or obligations convertible into or
exchangeable for, or giving any person any right to acquire from Communications
any shares of its stock, except for certain buy/sell agreements between
Communications and/or the Communications Shareholders which agreements shall be
canceled at the Effective Time.
Section 4.4 Financial Statements. The audited financial statements of
Communications as of May 31, 1996, consisting of a balance sheet, statement of
operations, a statement of cash flows, and a statement of changes in
stockholders' equity for the twelve months ended that date which Communications
has delivered to Acquisitions and Dycom have been certified by Norwalk &
Associates, independent certified public accountants. Such financial statements
present fairly the financial position of Communications and the results of its
operations and changes in financial positions as of the date and for the period
indicated, in conformity with generally accepted accounting principles
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consistently applied during such period. As of May 31, 1996, there were no
material obligations or liabilities (whether accrued, absolute, contingent or
otherwise) of Communications not adequately reflected on the balance sheet (and
the notes thereto) as of such date.
On or before seven (7) days prior to the Effective Time, Communications
agrees to deliver to Dycom audited financial statements for the year ended May
31, 1997.
Section 4.5 Document List. Communications has furnished, or will
furnish at the time of the execution of this Agreement, to Acquisitions and
Dycom, a written list (the "Document List"), attached hereto as Schedule 4.5,
dated the date of this Agreement, which, to the best knowledge of Communications
Shareholders after such inquiry as they determine to be appropriate, identifies
and describes all contracts, agreements and instruments, whether written or
oral, which are material to the conduct of the business of Communications.
Without limiting the generality of the foregoing, the Document List shall
include the following contracts, agreements and instruments to which
Communications is a party or is otherwise subject or affected:
(i) all instruments or arrangements creating liens,
encumbrances, mortgages, or charges on any real or personal property of
Communications;
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(ii) all indentures, trust agreements, credit agreements or
other instruments relating to any issue of bonds, debentures, notes or
other evidences of indebtedness; all employment contracts; all
contracts with labor unions representing or attempting to represent
employees of Communications; all contracts relating to engineering,
legal, accounting, management, consulting and other services; and all
material contracts for the purchase of real property, personal property
or any interest therein;
(iii) all bonus, pension, profit sharing, buy/sell,
retirement, stock option, hospitalization or insurance plans or
agreements, including without limitation all workers' compensation
plans; vacation pay or severance pay, and other plans or arrangements
of Communications providing benefits to officers, employees or agents;
(iv) all leases, or other agreements to which Communications
is a party relating to real or personal property or any interest
therein which either do not terminate or are not terminable by
Communications within six (6) months from the date hereof;
(v) all policies of fire, liability and other forms of
insurance (including title insurance) held by and/or covering assets of
Communications;
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(vi) all letters of credits, bank accounts or safe deposit box
arrangements of Communications;
(vii) all material licenses, permits, filings or
authorizations required by any jurisdiction or authority in connection
with the business of Communications; and
(viii) all contracts or agreements that obligate
Communications to perform, provide or purchase goods or services which
have an individual value of more than $5,000.
Section 4.6 Asset Descriptions. Communications has furnished, or will
furnish at the time of the execution of this Agreement, to Acquisitions and
Dycom, a list (the "Asset List"), attached hereto as Schedule 4.6, dated the
date of this Agreement, describing all motor vehicles and testing equipment
owned by Communications. Not later than twenty (20) days prior to the Closing
Date as defined in Section 18.3 hereof, Communications shall furnish to
Acquisitions and Dycom a supplemental list which identifies all assets owned by
Communications.
Section 4.7 Litigation List. Communications has also furnished, or will
furnish at the time of the execution of this Agreement, to Acquisitions and
Dycom, a written description (the "Litigation List"), attached hereto as
Schedule 4.7 , dated the date of this Agreement, of all civil or criminal
actions, proceedings, arbitrations or investigations pending, or, to the
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best knowledge of the corporate officers or directors of Communications or the
Communications Shareholders, after such inquiry as they determine to be
appropriate, threatened by or before any court, governmental agency, regulatory
authority or arbitrator against Communications or any director or officer of
Communications, in such capacity, as either plaintiff or defendant.
Section 4.8 No Material Adverse Change. Since May 31, 1997, there has
not been (i) any material adverse change in the financial condition, business
properties or assets of Communications in the aggregate; (ii) any loss or damage
to any of the properties or assets of Communications (whether or not covered by
insurance) which has materially and adversely affected Communications or
impaired the ability of Communications to conduct its business; (iii) any other
event or condition of any character which has materially and adversely affected
the business of Communications; (iv)any mortgage or pledge of any of the
properties or assets of Communications (other than as disclosed on the Document
List); (v) any purchase, redemption, or other acquisition by Communications of
any shares of the stock of Communications; (vi) any declaration or payment of
any dividend or other distribution in respect of the stock of Communications; or
(vii) any increase paid or agreed to be paid in compensation, retirement
benefits or other commitments to employees, other than in the
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ordinary course of Communications' business.
Section 4.9 Good Title, etc. Communications has title to all of its
properties, including, without limitation, all property reflected on the balance
sheet of Communications dated as of May 31, 1996 (but excluding property
disposed of subsequent to May 31, 1996 and prior to the date hereof in the
ordinary course of business), as well as all property reflected on the balance
sheet of Communications to be dated May 31, 1997 and provided to Dycom and
Acquisitions pursuant to Section 4.4 hereof (but excluding property disposed of
subsequent to May 31, 1997, and prior to the date hereof), free and clear of any
mortgage, lien, pledge, charge, claim or encumbrance except as disclosed in the
Document List pursuant to Section 4.5 hereof.
Section 4.10 Working Order. Except as described on Schedule 4.10
hereto, all material machinery and equipment of Communications are in working
order and repair (normal wear and tear and normal repair or maintenance
excepted). Except as set forth in the Document List, Communications has the
unrestricted right to use its properties for its operations as presently
conducted.
Section 4.11 No Breach. Except as otherwise disclosed in writing,
Communications has not breached, nor is in default under the terms of any
indenture, agreement, employee benefit plan, lease or license to which it is
subject or bound that is material to the
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business of Communications, and, to the best knowledge of the Communications
Shareholders after such inquiry as they determine to be appropriate, each such
indenture, agreement, employee plan, lease and license is valid and effective.
Communications is not in default with respect to any order of any court,
regulatory agency or other private or governmental authority, specifically
pertaining to Communications.
Section 4.12 Tax Returns. Except as otherwise disclosed in writing,
Communications has filed all applicable United States, state and local tax
returns required to be filed, and any and all other material tax returns
required to be filed. Communications has paid or provided for the payment in
full of all taxes due to any governmental entity, and has not executed, or
agreed to execute, any waivers of any statutes of limitations on the right of
any taxing authority to assess additional taxes or to contest the income or loss
reported with respect to any tax period. No issues have been raised (and are
currently pending) as of the date of this Agreement by the Internal Revenue
Service or any other taxing authority in connection with any of the aforesaid
tax returns. There are no material taxes or levies of any nature due or payable
to any local, state or federal government nor, to the best of their knowledge,
shall the consummation of the transactions contemplated by this Agreement result
in any such taxes or levies being due and
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payable. The receipts and expenditures reflected on the U.S. income tax returns
(including the supporting schedules filed therewith and as a part thereof) filed
by Communications for the fiscal years ended May 31, 1994, 1995 and 1996 and all
other open years, copies of which have been supplied (or will be promptly
supplied) to Dycom, accurately reflect the receipts and expenditures of
Communications, as well as the taxable income and tax deductions for the
respective tax years, and the same were derived from the books and records of
Communications.
Section 4.13 This Agreement Not a Default. Compliance with the
terms of this Agreement and consummation of the transactions contemplated by
this Agreement will not materially violate or result in a material breach of or
constitute a material default under any statute, ordinance or governmental
regulation, or any provision of the Articles of Incorporation and by-laws of
Communications, or the provisions of any indenture, mortgage, lien, lease,
agreement, instrument, order, judgment, decree, or any other restriction of any
kind or character to which any property of Communications is bound or by which
Communications is bound.
Section 4.14 No Other Commitments. Except for the making of
capital expenditures in amounts less than $5,000 each and except for the making
of capital expenditures which are disclosed in the Asset List (which includes
all such expenditures which
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individually totaled $5,000 or more), since May 31, 1997 Communications has not
entered into any transaction or commitment other than in the ordinary course of
business.
Section 4.15 Information Accurate. All information in writing
concerning Communications furnished at or prior to the Effective Time by or on
behalf of Communications to Dycom for inclusion in, or use in preparation of, or
on behalf of any application or statement or notice made or to be made by Dycom,
or filed by Dycom with the Securities and Exchange Commission, any stock
exchange or other regulatory agency shall when furnished be true and correct in
all material respects without omission of any material fact necessary to be
stated to make the information not misleading. Communications may provide Dycom
and Acquisitions with a list of all writings so furnished and in the event it
does so, shall only warrant the truth and correctness of said writings and any
other such additional writings identified in writing by Dycom and provided to
Communications, without the omission of any material fact necessary to be stated
to make the information not misleading. Communications will provide Dycom in
writing such information as Dycom may reasonably request and require in
connection with any aforesaid application, statement or notice. Dycom shall
furnish Communications a copy of all filings prior to their submission to any
governmental or regulatory agency.
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Section 4.16 Share Ownership. The Communications Shareholders are the
record and beneficial owner of all of the Communications Shares and hold the
Communications Shares free and clear of any lien, encumbrance, pledge, charge or
claim, and have full and absolute right and power to assign, transfer and sell
their respective Communications Shares.
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SECTION 4.17 Due Authorization, etc. The execution and delivery of this
Agreement by Communications and the performance by Communications of its
obligations under this Agreement have been authorized by its Board of Directors;
and Communications has all requisite authority to enter into and perform this
Agreement, subject only to the approval of this Agreement by PNC Bank, National
Association ("PNC") and Comcast Cable Communications, Inc. Subject to the
foregoing, this Agreement is a valid and binding agreement of Communications and
the Communications Shareholders, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, or other similar laws of
general application affecting the enforcement of creditors' rights generally.
Section 4.18 Subsidiaries. Communications does not control (as such
term is defined in Section 368(c) of the Code), directly or indirectly, any
corporation, association or other business entity.
Section 4.19 Consent. Except as provided in Sections 11.10 and 17.1
hereof, no consent, approval or authorization of or registration, qualification,
designation, declaration or filing with any governmental authority or private
person or entity on the part of the shareholders of Communications is required
in connection with the execution and delivery of this Agreement or the
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consummation of any transaction contemplated hereby.
Section 4.20 Patents, etc. Except as described in Schedule 4.20 hereto,
Communications does not own or have any patents, applications for patents,
written disclosures of inventions, trade names, trademarks, trademark
registrations, or agreements, including agreements with its employees, under
which Communications is either a licensee and/or licensor (and no such
agreements are being negotiated). No amounts are or will at any time hereafter
be owing to any employee of Communications in connection with any patent or
invention.
Section 4.21 Broker's or Finder's Fees, etc. No agent, broker,
investment banker, person or firm acting on behalf of Communications or the
Communications Shareholders or under the authority of Communications or the
Communications Shareholders is or will be entitled to any broker's or finder's
fee or any other commission or similar fee directly or indirectly from any of
the parties hereto in connection with any of the transactions contemplated
herein.
Section 4.22 ERISA. No Reportable Event (as described in Section
4043(c) of the Employee Retirement Income Security Act of 1974 ("ERISA") has
occurred with respect to any Plan (as defined below) that is subject to the
provisions of Title IV of ERISA, and no event with respect to any Plan has
occurred which would impose
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any liability on Communications other than contributions for the plan year ended
May 31, 1997. Each Plan is in material compliance, and has been administered
materially in accordance, with the applicable provisions of the Code and ERISA.
The term "Plan" means any plan described in Section 3(3) of ERISA established by
Communications. No transactions prohibited by Section 406 of ERISA and not
exempt under Sections 407 and 408 of ERISA has occurred with respect to any Plan
established by Communications. The provisions of this Section 4.22 shall also
apply to any Plan which is described in Section 3(3) of ERISA and under which
Communications has contributed.
Section 4.23 Employees. Communications has furnished, or will furnish
at the time of the execution of this Agreement, to Dycom, a list (the "Employee
List"), attached hereto as Schedule 4.23, dated the date of this Agreement,
identifying all individuals in the employ of Communications as of the date of
this Agreement, their current periodic compensation, and any extraordinary
compensation due them for work performed prior to such date. Except as
identified on Schedule 4.23 attached hereto, Communications has no collective
bargaining agreement with any of its employees, and except as disclosed in the
Document List and/or Litigation List, Communications has not engaged in any
discussions with respect to the establishment by any of its employees of a
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collective bargaining unit or to the execution of a collective bargaining
agreement; and except as disclosed in the Litigation List, no election with
respect to the unionization of any group of Communications employees has taken
place and there are not currently, nor have there been in the past, any such
discussions or elections threatened or contemplated.
Section 4.24 Insurance. Communications keeps all of its business and
properties which are of an insurable nature insured, with insurers reasonably
believed by Communications to be responsible against loss or damage or arranges
with others to do so.
Section 4.25 Compliance with Applicable Law. To the best knowledge of
Communications Shareholders after inquiry as they determine to be appropriate,
Communications is in compliance in all material respects with all laws,
regulations, governmental orders or judgments applicable to its business as a
whole, and has all material licenses, permits and other governmental
authorizations necessary for the conduct of its business as a whole.
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Section 4.26 Untrue Statements. No representation or warranty by
Communications or the Communications Shareholders in this Agreement contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained therein not
misleading. No written information, statement or certificate furnished to
Acquisitions or Dycom by Communications or the Communications Shareholders
pursuant hereto or in connection with the transactions contemplated hereby,
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary to make the statements contained
therein not misleading. No breach under this Article IV shall have occurred if
any matter which is required to be disclosed on a particular list hereunder is
not disclosed on that list, but appears on a different list furnished in
accordance with this Article IV.
Section 4.27 Environmental Permits, etc. Communications Shareholders
warrant that to the best of their knowledge, Communications: (a) is not required
to obtain any permits, licenses and other authorizations required under federal,
state, local and foreign environmental laws, statutes and ordinances, including
but not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., the Federal Water
Pollution Control Act, 33 U.S.C. Section 1251
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et seq., the Clean Air Act, 41 U.S.C. Section 2601 et seq., as amended, the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 to
1364, the Occupational Safety and Health Act of 1970, 29 U.S.C. Sections 651 to
678, and any applicable state or local law relating to the protection of the
environment, and including any rules, regulations, orders, decrees, plans,
codes, judgments, injunctions, notices or demand letters, prohibitions,
obligations, schedules, timetables, standards, conditions or requirements
issued, entered, approved or promulgated thereunder, relating to pollution or
protection of the environment, including laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants, chemicals,
wastewater, industrial substances, toxic substances, hazardous substances (as
defined in Section 101(14) of CERCLA, 41 U.S.C. Section 9601(14)), or solid or
hazardous wastes in, into, onto or upon the environment (including, without
limitation, ambient air, surface water, ground water, or land), or otherwise
relating to the manufacture, processing, distribution, use, treatment,
collection, accumulation, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, wastewater, or industrial, toxic or
hazardous substances or wastes (collectively the "Environmental Laws"); and (b)
is in compliance with all applicable Environmental Laws. Communications
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has not received (i) any notice of the violation or alleged violation of, or
noncompliance or alleged noncompliance with, any of the Environmental Laws,
permits, licenses or other authorizations; (ii) any notice, demand, claim, order
or request for the performance of, or the payment of costs or expenses for, any
test, investigation, assessment, examination, cleanup, removal, remediation,
mitigation, response, treatment or restoration with regard to environmental
conditions; or (iii) any notice, or have knowledge of, any environmental
contamination or the disposal of any hazardous substance, pollutant or
contaminant at, in, into, onto, upon, by or from any real property owned,
operated, possessed or used by Communications or the environment; and there is
not now and has not been, as a result of Communications' activities (y) any
violation or alleged violation, or noncompliance or alleged noncompliance with,
any of the Environmental Laws, permits, licenses, or other authorizations; or
(z) any environmental contamination of, or the disposal of any hazardous
substance, pollutant or contaminant at, in, into, onto, upon, by or from any
real property owned, operated, possessed or used by Communications or the
environment. Communications has not disposed of, has not arranged for the
disposal of, nor has any knowledge of the disposal of, any hazardous substance
on any real property that is covered by this Agreement.
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ARTICLE V
Representations and Warranties of Dycom and Acquisitions
Dycom and Acquisitions represent and warrant to Communications as
follows:
Section 5.1 Due Incorporation, etc. Dycom and Acquisitions are validly
organized and existing corporations in good standing and in subsistence under
the laws of Florida and Pennsylvania, respectively. Each of Dycom and
Acquisitions has all requisite corporate power to carry on its business as now
conducted, and is qualified to do business in every jurisdiction in which the
character and location of its assets or the nature of the business transacted by
it requires such qualification, except where the failure to be so qualified and
in good standing would not have a material and adverse effect on Dycom or
Acquisitions. The copies of the Articles of Incorporation and by-laws, and all
amendments thereto, of Dycom and Acquisitions, which have heretofore been or
will promptly be delivered to Communications, are complete and accurate.
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Section 5.2 Financial Statements. The consolidated financial statements
of Dycom as of July 31, 1996, consisting of the consolidated balance sheets,
statement of operations, statements of stockholders' equity and statements of
cash flows, for the twelve months ended that date, which Dycom has or will have
delivered to Communications and the Communications Shareholders, have been
audited by Deloitte & Touche L.L.P., independent certified public accountants.
Such statements present fairly the consolidated financial position of Dycom and
subsidiary companies as of July 31, 1996, and the results of their operations
and changes in financial position for the period ended that date, in conformity
with generally accepted accounting principles consistently applied during such
period. As of July 31, 1996, there were no material obligations or liabilities
(whether accrued, absolute, contingent or otherwise) of Dycom and its subsidiary
companies, taken as a whole, not adequately reflected in the aforesaid financial
statements.
Section 5.3 Capitalization. The authorized capital stock of Dycom as of
the date of this Agreement consists of 50,000,000 shares of common stock,
$.33 1/3 par value, of which 8,805,943 shares are issued and outstanding, and
1,000,000 shares of preferred shares, $1.00 par value, of which none are issued
and outstanding. All of the shares of Dycom stock outstanding have
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been validly issued and are fully paid and nonassessable, and Dycom holds no
such shares as treasury stock. The Dycom Shares, when delivered pursuant to this
Agreement, will be validly issued and outstanding and fully paid and
nonassessable. The authorized capital stock of Acquisitions consists entirely of
1,000 shares of common stock, $1.00 par value, 100 of which are issued and
outstanding in the name of Dycom. Acquisitions is a first tier subsidiary of
Dycom.
Section 5.4 Accuracy of Information. All information in writing
concerning Dycom and Acquisitions furnished by Dycom and Acquisitions to
Communications for inclusion in or use in preparation of, any application or
statement made or to be made by Communications or the Communications
Shareholders to any governmental body or private party in connection with the
transactions contemplated by this Agreement, shall when furnished be true and
correct in all material respects without omission of any material fact necessary
to be stated to make the information not misleading.
Section 5.5 Due Authorization of Dycom. The execution and delivery of
this Agreement by Dycom and the performance by Dycom of its obligations under
this Agreement have been authorized by its Board of Directors and no shareholder
action is required. Except for the consent of the Lenders, as defined in that
certain Credit
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Facility Agreement, dated April 28, 1997, by and among Dycom and Dresdner Bank
Lateinamerika Aktiengesellschaft, Miami Agency, Bank Leumi Trust Company of New
York, and Republic National Bank of Miami, N.A., and subject to Section 17.1, no
further consents of other parties are necessary to consummate this transaction,
and Dycom will have all requisite authority to enter into this Agreement and to
perform its obligations under this Agreement. Subject to the foregoing, this
Agreement, when duly executed and delivered, will constitute a valid and binding
agreement of Dycom, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws of general
application affecting the enforcement of creditors' rights generally.
Section 5.6 Due Authorization of Acquisitions. The execution and
delivery of this Agreement by Acquisitions and the performance by Acquisitions
of its obligations under this Agreement have been authorized by its Board of
Directors and its sole shareholder, Dycom. Subject to the foregoing,
Acquisitions will have all requisite authority to enter into this Agreement and
to perform its obligations under this Agreement. Subject to the foregoing, this
Agreement, when duly executed and delivered, will constitute a valid and binding
agreement of Acquisitions, except as the enforceability thereof may be limited
by bankruptcy,
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insolvency, reorganization or other similar laws or general application
affecting the enforcement of creditors' rights generally.
Section 5.7 This Agreement Not a Default. Subject to the accuracy of
the representations of Communications and the Communications Shareholders in
Article IV hereof and compliance with the terms of this Agreement, the
consummation of the transactions contemplated by this Agreement, will not
materially violate or result in a material breach of or constitute a material
default under any statute, ordinance or government regulation, or any provision
of the Articles of Incorporation or by-laws of Dycom or Acquisitions, or any
provision of any indenture, mortgage, lien, lease, agreement, instrument, order,
judgment, decree, or any other restriction of any kind or character to which any
property of Dycom or Acquisitions is subject or by which Dycom or Acquisitions
is bound, except for the consent of the Lenders, as provided in Section 5.5,
which consent shall be received prior to the Effective Time.
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Section 5.8 Broker's or Finder's Fees, etc. Except as described on
Schedule 5.8 hereto, no agent, broker, investment banker, person or firm acting
on behalf of Dycom or any of its subsidiaries or under the authority of any of
them is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly from any of the parties hereto
in connection with any of the transactions contemplated hereby.
Section 5.9 Securities and Exchange Commission Filings, etc. Dycom has
delivered to the Communications Shareholders true copies of Dycom's Annual
Report and Form 10-K for the fiscal year ended July 31, 1996, and the 1996 Proxy
Statement relating to its 1996 annual meeting of stockholders, all as filed with
the Securities and Exchange Commission, and all other reports, registrations and
similar filings filed by Dycom with the Securities and Exchange Commission after
July 31, 1996 and all such mailings or similar communications to its
stockholders. The information provided in said filings is true and correct in
all material respects without omissions of any material fact necessary to be
stated to make the information not misleading. There have been no material
change in its assets, liabilities or products since Dycom's 10-Q for the quarter
ended April 30, 1997, delivered to Communications pursuant to this Agreement.
Section 5.10 Registration If Dycom receives a request
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signed by the Communications Shareholder stating that the Communications
Shareholders propose to sell or distribute publicly in a firm underwriting up to
the greater of (a) 1,000,000 or (b) fifty percent (50)% of the Dycom Shares and
that the Communications Shareholders desire to have such shares registered under
the Securities Act of 1933 (the "Act"), Dycom shall use its best efforts to (a)
file within one hundred and twenty (120) days of such request a registration
statement under the Act covering the proposed sale or distribution referred to
in such notice (the "Registration Statement"), (b) cause such Registration
Statement to become effective under the Act as soon as possible after the filing
thereof, and (c) cause such Registration Statement to remain effective, with a
prospectus at all times meeting the requirements of the Act, for so long as a
prospectus may be required to be delivered pursuant to the Act. Pursuant to
Section 6(a) of the Act, the officers and directors of Dycom shall sign the
Registration Statement.
To the extent permitted without destroying the pooling of interests as
determined by the opinion of Deloitte & Touche L.L.P., Dycom shall be
responsible for all costs and expenses of any such Registration Statement,
including the legal, accounting and printing costs. Dycom shall also qualify
such shares (at Dycom's expense) in such states as Dycom qualifies other shares
included in
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the offering. Dycom's obligations hereunder are expressly conditioned on the
Communications Shareholders furnishing Dycom in writing such information
concerning the Communications Shareholders and the terms of the proposed
offering as Dycom shall reasonably request or require for inclusion in the
Registration Statement.
Section 5.11 Untrue Statements. No representation or warranty by Dycom
or Acquisitions in this Agreement nor any information, statement or certificate
furnished or to be furnished to Communications pursuant hereto or in connection
with the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary to make the statements contained therein not misleading.
Section 5.12 No Material Adverse Change. Since July 31, 1996, there has
not been (i) any material adverse change in the financial condition, business
properties or assets of Dycom and its subsidiaries taken as a whole; (ii) any
loss or damage to any of the properties or assets of Dycom or its subsidiaries
(whether or not covered by insurance) which has materially and adversely
affected Dycom or impaired the ability of Dycom to conduct its business; (iii)
any other event or condition of any character which has materially and adversely
affected the business of Dycom or its subsidiaries; (iv) any mortgage or pledge
of any of the properties
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or assets of Dycom other than those disclosed in materials furnished to
Communications; (v) any purchase, redemption, or other acquisition by Dycom of
any shares of the stock of Dycom; or (vi) any declaration or payment of any
dividend or other distribution in respect of the stock of Dycom. Neither Dycom
nor any subsidiary is in material violation of any law, regulation, governmental
order or judgment necessary to the conduct of its respective business which
violation has a material adverse effect on the financial condition, business,
properties or assets of Dycom and its subsidiaries taken as a whole.
Section 5.13 Litigation. Dycom has furnished or will furnish at the
time of the execution of this Agreement, to the Communications Shareholders a
written description (the "Litigation List") dated the date of this Agreement, of
all material civil or criminal actions, proceedings or investigations pending or
threatened by or before any court, governmental agency, regulatory authority or
arbitrator against Dycom and its subsidiaries or any director or officer of
Dycom, in such capacity, or its subsidiaries, as either plaintiff or defendant.
The Litigation List will be supplemented from time to time as necessary prior to
the Closing Date.
Section 5.14 Tax Returns. Dycom has filed all applicable United States,
state and local tax returns required to be filed,
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and all other material tax returns required to be filed. Dycom has paid or
provided for the payment in full of all taxes due to any governmental entity,
and has not executed, or agreed to execute, any waivers of any statutes of
limitations on the right of any taxing authority to assess additional taxes or
to contest the income or loss reported with respect to any tax period. No issues
have been raised (and are currently pending) as of the date of this Agreement by
the Internal Revenue Service or any other taxing authority in connection with
any of the aforesaid tax returns. There are no material taxes or levies of any
nature due or payable to any local, state or federal government nor shall the
consummation of the transactions contemplated by this Agreement result in any
such taxes or levies being due and payable. The receipts and expenditures
reflected on the U.S. income tax returns (including the supporting schedules
filed therewith and as a part thereof) filed by Dycom for the fiscal years ended
July 31, 1994, 1995, and 1996, copies of which have been supplied (or will be
promptly supplied) to the Communications Shareholders, state accurately the
receipts and expenditures of Dycom and its subsidiaries, as well as the taxable
income and tax deductions for the respective tax years, and the same were
derived from the books and records of Dycom and its subsidiaries.
Section 5.15 Continuity Acquisitions and Dycom's intent,
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upon the consummation of the Merger, is to continue the business of
Communications, as presently conducted.
ARTICLE VI
Conduct of Business of Communications
Prior to Effective Time
Section 6.1 Normal Operation of Business. After the date of this
Agreement and prior to the Effective Time, Communications and the Communications
Shareholders agree that Communications:
(a) will use its reasonable efforts to preserve intact its
business and operate its business only in the usual, regular and
ordinary manner consistent with prior practices and, to the extent
consistent with such operation, will use its reasonable efforts to (i)
preserve its present advantageous relationships with persons and
entities having business dealings with it, and (ii) preserve all of its
licenses, franchises, patents, trademarks, copyrights and other rights;
(b) will maintain its properties in customary repair, order
and condition, reasonable wear and use excepted, and will maintain in
full force and effect insurance substantially comparable in amount and
scope to that which it has as of the date of this Agreement upon all of
its properties and with respect to the conduct of its business;
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(c) will maintain its books, accounts and records in the
usual, regular and ordinary manner, on a basis consistent with prior
years, and will duly comply in all material respects with all laws
applicable to it and to the conduct of its business; and
(d) will advise Dycom of all unusual or extraordinary requests
and opportunities to provide service or expand its business.
Section 6.2 Restricted Acts. Without the prior written consent of
Acquisitions and Dycom, Communications and the Communications Shareholders agree
that, prior to the Effective Time, Communications will not:
(a) cause or permit its Articles of Incorporation or its
by-laws to be amended;
(b) purchase, redeem or retire any shares of its capital
stock;
(c) merge or consolidate with, or sell any of its assets to
(other than in the ordinary course of business), or purchase or
otherwise acquire all or a major part of the stock or assets of, any
other corporation or partnership, or in any way change the character of
its business;
(d) encumber or mortgage any of its property or assets or
enter into any transaction or make or enter into any contract
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or commitment which is not in the ordinary course of business, or,
other than in the ordinary course of its business, incur any obligation
(contingent or otherwise) or transfer or convey any material assets or
property;
(e) enter into any arrangement, agreement or undertaking for,
or pay or promise to pay or grant any stock option, bonus, special
compensation, or general or uniform increase in rates or pay, salary or
other benefits to employees or enter into any employment agreements
with officers or management personnel other than as specifically
contemplated by this Agreement;
(f) declare or pay any dividend or make any other distribution
or payment on or in respect of its stock;
(g) other than in the ordinary course of business, waive any
claims having value or release any rights under contracts, leases or
license agreements;
(h) without notifying Acquisitions and Dycom and discussing
the matter with it, and other than in the ordinary course of business,
bring suit, or file a complaint or be named as a party plaintiff in any
suit, action or proceeding, by or before any court, governmental agency
or regulatory authority or before an arbitrator; or
(i) organize or cause to be organized any subsidiary.
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Section 6.3 No Stock Issued. No increase will be made in the number of
shares of the capital stock of Communications issued and outstanding, and no
warrant or any other right to purchase or convert any obligation or security
into shares of capital stock of Communications will be granted or issued.
Section 6.4 Supplements to Lists. Until the Closing Date,
Communications shall from time to time prepare and furnish to Dycom lists of
schedules (individually, a "Supplemental List" or "Supplemental Schedule,"
respectively) which shall supplement, as the case may be, the Document List,
Asset List, Litigation List, Employee List, or any other lists or schedules
which Communications shall have delivered hereunder, as necessary to keep such
list or schedule current and accurate. Each Supplemental List and each
Supplemental Schedule shall not be deemed to change in any respect the
representations and warranties given as of the date of this Agreement, provided,
however, that Dycom and Acquisition's sole remedy, in the event any such
Supplemental List or lists individually or collectively materially changes the
original list or lists, shall be to terminate this Agreement. At the request of
Dycom, Communications shall deliver to Dycom copies of any documents pertaining
to the matters listed or described in any such lists or schedules.
ARTICLE VII
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Covenants of Communications and the
Communications Shareholders.
Communications and the Communications Shareholders covenant as follows:
Section 7.1 Right of Access and Furnishing Information. Communications
will furnish to Dycom or its duly appointed representatives such access to all
of the properties, books, contracts, commitments and records of Communications,
and will furnish to Dycom all such documents and copies of documents and records
and information with respect to the affairs of Communications and will make its
officers and employees available to Dycom or such representatives for such
consultation, at reasonable times, as Dycom shall from time to time reasonably
request. Communications will furnish Dycom all the information concerning
Communications required for inclusion in any application or statement or notice
made or to be made by Dycom to any governmental body, stock exchange or
essential private party in connection with the transactions contemplated by this
Agreement.
Section 7.2 Confidentiality. Communications, the Communications
Shareholders and their representatives will hold in confidence the existence and
substance of this Agreement and any data and information obtained with respect
to Dycom or Acquisitions or their businesses from any representative, officer,
director or
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employee of Dycom or Acquisitions, or from any books or records of either of
them in connection with this Agreement, and shall not use such data or
information or disclose the same to others, except to the extent such data or
information is published or is a matter of public knowledge or is required by
any applicable law or regulation to be disclosed, or until the transactions
contemplated hereunder shall have been consummated. If this Agreement is
terminated for any reason, all written data and information obtained from Dycom
or Acquisitions in connection with the Agreement shall be returned to Dycom or
Acquisitions, and Communications and the Communications Shareholders will use
all reasonable efforts to keep confidential any information obtained by them
from Dycom or Acquisitions in connection with the Agreement unless and until
such information is ascertainable from public or published information or trade
sources or is otherwise a matter of public knowledge.
Section 7.3 Consents. Communications shall obtain the necessary
consents and approvals to the extent the same are so required, of other persons
and governmental authorities to the transactions contemplated by this Agreement,
to the performance by Communications of its obligations under this Agreement and
to the right of the Surviving Corporation by the Merger to succeed to the rights
of Communications. In the event that Communications, through its reasonable
efforts, is unable to secure the necessary
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consents and approvals, this Agreement may be terminated.
Section 7.4 Tax Liabilities In the event a review or audit of
Communications' tax returns for any year prior to the Closing Date results in an
assessment for additional taxes due from Communications, based upon a
determination by the assessing tax authority that such additional taxes are due
because of (a) a finding of fraud and/or (b) the disallowance of any deduction
taken by Communications and determined to be a personal expense of either of the
Communications Shareholders, the Communications Shareholders shall indemnify the
Surviving Corporation for any and all taxes, including interest and penalties,
if any, assessed against the Surviving Corporation.
ARTICLE VIII
Covenants of Dycom and Acquisitions
Dycom and Acquisitions covenant as follows:
Section 8.1 Furnishing of Information. Dycom and Acquisitions shall
furnish Communications and the Communications Shareholders all information
concerning Dycom and Acquisitions required for inclusion in any application,
statement or notice made by Communications or the Communications Shareholders
to, or filed by Communications or the Communications Shareholders with, any
governmental body in connection with the matters contemplated by this Agreement.
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Section 8.2 Confidentiality. Dycom, Acquisitions and their
representatives will hold in confidence the existence and substance of this
Agreement and any data and information obtained with respect to Communications
or the business of Communications or any of the Communications Shareholders from
any representative, officer, director or employee of Communications, or from any
books or records of Communications in connection with this Agreement, and shall
not use such data or information or disclose the same to others, except to the
extent such data or information is published or is required by any applicable
law, rule or regulation including, without limitation, the Securities Exchange
Act of 1934 and the rules of any stock exchange, to be disclosed, or until the
transaction contemplated hereunder shall have been consummated. If this
Agreement is terminated for any reason, all written data and information
obtained by Dycom or Acquisitions from Communications in connection with this
Agreement shall be returned to Communications, and Dycom and Acquisitions will
use all reasonable efforts to keep confidential any information obtained by them
unless and until such information is ascertainable from public or published
information or trade sources or is otherwise a matter of public knowledge. Dycom
and Acquisitions shall notify and discuss beforehand with the Communications
Shareholders disclosure with respect to this Agreement that Dycom or
Acquisitions makes to the news media.
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Section 8.3 Personal Guaranties. Dycom agrees to use its best efforts
to remove and replace the Communications Shareholders as personal guarantors of
lines of credit of Communications. Communications Shareholders warrant that
there are no amounts in excess of $____________________ due under such lines of
credit as of the date hereof. If Dycom is unsuccessful in removing and replacing
the Communications Shareholders as guarantors, Dycom agrees to indemnify
Communications Shareholders for any claims made on such guaranty agreements.
Section 8.4 Loans to Communications Shareholders. Dycom shall satisfy
or cause Communications to satisfy all loans or amounts payable by
Communications to the Communications Shareholders, if any, within eight (8)
months after the Closing Date. Communications Shareholders warrant that the
total of the debts due Communications Shareholders as of the date hereof does
not exceed $670,000.
Section 8.5 Securities and Exchange Commission Filings, etc. Until the
Closing Date, Dycom shall furnish to Communications and the Communications
Shareholders promptly after such filings or communications are made, copies of
any reports, statement or other filings filed by it with the Securities and
Exchange Commission and the New York Stock Exchange and all mailings or similar
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communications to its stockholders.
Section 8.6 Stock Transfer Taxes. Dycom shall pay any and all
documentary stamp taxes, transfer taxes or other stock issued taxes of any kind
due upon any issue, exchange or transfer of the Dycom Shares in connection with
this Agreement.
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ARTICLE IX
Transferability of Dycom Shares
Section 9.1 Share Certificate Legend. Each certificate evidencing the
Dycom Shares shall bear a legend to disclose the limitations upon its
transferability by virtue of the requirements of the Securities Act of 1933, as
amended. The aforesaid legend shall read as follows:
THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE "ACT") IN RELIANCE UPON THE EXEMPTION FROM
REGISTRATION PROVIDED IN SECTION 4(2) OF THE ACT, NOR WITH ANY
STATE SECURITIES REGULATORY AUTHORITY IN RELIANCE UPON
PARTICULAR STATUTORY TRANSACTIONAL EXEMPTIONS. IT IS UNLAWFUL
TO CONSUMMATE A SALE OR OTHER TRANSFER OF THESE SECURITIES
WITHOUT PRIOR REGISTRATION UNDER THE ACT AND APPLICABLE STATE
STATUES OR RECEIPT OF AN OPINION OF COUNSEL FOR THE ISSUER TO
THE EFFECT THAT SUCH PROPOSED SALE OR OTHER TRANSFER DOES NOT
AFFECT THE EXEMPT STATUS OF THE ORIGINAL ISSUANCE AND SALE OF
THIS SECURITY AND IS IN
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COMPLIANCE WITH ALL APPLICABLE FEDERAL AND STATE SECURITIES
LAWS.
Dycom shall make a notation in its records of the foregoing limitations
on transferability, and shall so advise its transfer agent. The foregoing legend
shall be removed from a certificate representing shares covered by an effective
registration statement under the Securities Act of 1933 or shares as to which,
in the opinion of Chopin, Miller & Yudenfreund, or other counsel satisfactory to
Dycom, such registration is not required, and any stop transfer instructions
with the transfer agent will be revoked promptly.
Section 9.2 Subsequent Sale of Securities. The Communications
Shareholders acknowledge that the Dycom Shares to be delivered at the Closing
will not have been registered under the Securities Act of 1933, as amended, or
under any state securities act, in reliance upon the applicable federal or state
exemption for private offerings, and the Communications Shareholders agree and
covenant that the shares to be received by them at the Closing are being
acquired solely for their own account, for investment and not with a view to the
sale or distribution thereof.
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ARTICLE X
Conditions Precedent to Obligations of
Dycom and Acquisitions
All obligations of Dycom and Acquisitions hereunder are subject to the
fulfillment (unless specifically waived in writing by Dycom and Acquisitions
subsequent to the execution of this Agreement) of each of the following
conditions at or before the Closing Date:
Section 10.1 Warranties True. All representations and warranties of
Communications and the Communications Shareholders contained in this Agreement
shall in all material respects be true on, and with the same force and effect as
though made on, the Closing Date, except for changes permitted by this
Agreement.
Section 10.2 No Loss or Calamity. Communications shall not have
suffered, at or prior to the Closing Date, on account of any cause whatsoever,
any loss which materially and adversely affects the value of its assets or
business (whether or not such loss shall have been insured).
Section 10.3 Communications' and the Communications Shareholders'
Performance. Communications and the Communications Shareholders shall have
performed in all material respects all obligations and agreements required of
them and complied with all covenants applicable to them as contained in this
Agreement, to be
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performed and complied with by them on or prior to the Closing Date.
Section 10.4 Good Standing. There shall have been delivered to Dycom
and Acquisitions evidence, whether in the form of telegrams, certificates or
otherwise, satisfactory to Dycom and Acquisitions to establish that
Communications is in subsistence (i) in the state of its incorporation; and (ii)
in every jurisdiction, in which the character and location of its assets or the
nature of the business transacted by it requires that it be qualified to do
business.
Section 10.5 Opinion of Counsel for Communications and the
Communications Shareholders. Dycom and Acquisitions shall have been furnished
with an opinion, dated the Closing Date, of Kelley and Murphy, counsel for
Communications and the Communications Shareholders, to the effect that:
(i) Communications is a validly organized and existing
corporation in subsistence under the laws of the Commonwealth of
Pennsylvania. Communications is duly qualified and in good standing as
a foreign corporation authorized to do business in each jurisdiction
where, because of the nature of its business or properties, such
qualification is required, except where the failure to be so qualified
and in good standing would not have a material or adverse affect on the
financial condition,
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business properties or assets of Communications. Communications has all
requisite corporate power under its statutes and articles to carry on
its business as then being conducted;
(ii) The authorized capital stock of Communications consists
of 1000 shares of common stock, $1.00 par value, of which 140 shares
are issued and outstanding and 2000 shares of preferred stock, $25.00
par value, all of which are issued and outstanding. All such
outstanding shares have been duly and validly authorized and issued and
are fully paid and nonassessable;
(iii) The execution, delivery and performance of this
Agreement by Communications have been duly and validly authorized by
its Board of Directors and approved by all of its shareholders in
compliance with Pennsylvania law and its Articles of Incorporation and
by-laws, and this Agreement constitutes the valid and binding
obligation of Communications and the Communications Shareholders,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application
affecting the enforcement of creditors' rights generally;
(iv) All consents or approvals (including authorizations
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or orders of any private person, entity or governmental body) required
for Communications or the Communications Shareholders to enter into and
perform this Agreement and the transactions contemplated hereby, and
all supplements thereto, have been obtained;
(v) All other actions and proceedings required by law to be
taken by Communications and the Communicating Shareholders at or prior
to the Closing Date in connection with this Agreement and the
transactions provided for herein have been duly and validly taken;
(vi) Except as may be specified by such counsel, they do not
know after inquiry of Communications and the Communications
Shareholders, of any material litigation, proceeding or governmental
investigation pending or threatened against or relating to
Communications, or any properties or business, or any litigation,
proceeding or governmental investigations, pending or threatened,
relating to the transactions contemplated by this Agreement;
(vii) The execution, delivery and performance of this
Agreement by Communications and the Communications Shareholders will
not materially violate or result in a material breach of or constitute
a material default under any provision of Communications' Articles of
Incorporation or by-
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laws, or any indenture, mortgage, lien, lease agreement, instrument,
order, judgment decree, or any other restriction of any kind or
character to which any property of Communications is subject or bound;
and
(viii) The Articles of Merger referred to in Section 1.2 has
been duly executed by Communications in accordance with Pennsylvania
law. To the best of counsel's knowledge, upon the filing of the
Articles of Merger with the Department of State of the Commonwealth of
Pennsylvania, the Merger will become effective as provided in the
Articles of Merger. Each share of Communications capital stock issued
and outstanding immediately prior to the Effective Time will, at the
effective time stated in the Articles of Merger with the Department of
State of the Commonwealth of Pennsylvania, automatically and without
any action on the part of the holder thereof, be converted into the
Dycom Shares as provided in Article II hereof.
In rendering such opinions, such counsel may rely, as to factual
matters, upon certificates required by Section 10.4 hereof as well as any other
certificates such counsel may request to be furnished by officers, directors, or
shareholders of Communications and upon such other documents and data as such
counsel deem appropriate as a basis for its opinion. Such counsel may state
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that they are admitted to practice only in the Commonwealth of Pennsylvania,
that they are not admitted to the Bar in any other state and are not expert in
the law of any other state, and that to the extent their opinion concerns the
laws of any other state, such counsel has relied upon the opinion of counsel
reasonably satisfactory to such counsel who are admitted to practice in such
state.
Section 10.6 Communications Shares. The Communications Shares shall be
free and clear of all claims and encumbrances whatsoever.
Section 10.7 Absence of Litigation. There shall not be any actual or
threatened action, proceeding or investigation which is directed towards
challenging, restraining, prohibiting or invalidating the Merger or which, in
the reasonable judgment of Dycom or Acquisitions, could affect the right of the
Surviving Corporation to own, operate or control after the Effective Time any
material part of the property or business of Acquisitions or Communications.
Section 10.8 Employment Agreement. Communications and the
Communications Shareholders shall have terminated by mutual agreement any
existing employment agreement(s) between them, and the Communications
Shareholders shall have entered into employment agreements with Communications
in the form and substance attached
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hereto as Exhibits "B.1" and "B.2" for each such shareholder, respectively.
Section 10.9 Environmental Indemnity etc. Communications and
Communications Shareholders shall have furnished to Dycom and Acquisitions
copies of any and all presently existing environmental, audits, reports or
studies within their possession or control regarding any real estate owned,
operated, possessed, or used by Communications on or before the Effective Time
and, thereafter, also provide Dycom and Acquisitions copies of any such audits,
reports or studies. Communications Shareholders shall have executed an indemnity
in favor of Dycom whereby the Communications Shareholders, jointly and
severally, indemnify and hold Dycom and the Surviving Corporation harmless from
and against any losses, claims, damages, liabilities, and necessary costs and
expenses, including, without limitation, reasonable legal, consulting,
engineering and other expenses and any fines or penalties, arising out of or in
connection with any Environmental Conditions which existed as of and/or prior to
the Closing Date and which are the result of Communications' activities and not
those of its predecessors in title or interests or other third parties. Losses
shall include losses, claims, damages, liabilities, and necessary costs and
expenses, including, without limitation, reasonable legal, consulting,
engineering and other expenses which may be
53
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incurred by Dycom or the Surviving Corporation resulting from claims for damages
for bodily injury or property damages which arose out of or in connection with
any Environmental Conditions which existed as of and/or prior to the Closing
Date and which were the result of Communications' activities. Losses shall also
include all costs incurred to remedy to the satisfaction of any governmental
authority, any Environmental Conditions which existed as of and/or prior to the
Closing Date and which were the result of Communications' activities.
For purposes of this Section 10.9, "Environmental Conditions" shall
mean any conditions that requires remedial action and/or may result in claims,
demands and liabilities to the Communications Shareholders or the Surviving
Corporation with respect to the alleged generation, emission, storage, disposal,
discharge or release or threatened release of Hazardous Substances into soil,
surface waters, ground waters, streams, ponds, basins or lagoons, wherever
located. For these purposes, "Hazardous Substances" shall mean any pollutants or
contaminants, toxic substances, hazardous wastes, or hazardous substances (as
defined in or pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., as amended, and the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., as amended),
and petroleum products.
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ARTICLE XI
Conditions Precedent to Obligations
of Communications and the
Communications Shareholders
All obligations of Communications and the Communications
Shareholders hereunder are subject to the fulfillment (unless specifically
waived in writing by Communications and the Communications Shareholders
subsequent to the execution of this Agreement) of each of the following
conditions at or before the Closing Date.
Section 11.1 Warranties True. All representations and warranties of
Dycom and Acquisitions contained in this Agreement shall in all material
respects be true on, and with the same force and effect as though made on, the
Closing Date except for changes permitted by this Agreement.
Section 11.2 No Loss or Calamity. Neither Dycom nor Acquisitions shall
have suffered, at or prior to the Closing Date, on account of any cause
whatsoever, any loss which materially and adversely affects the value of its
assets or business (whether or not such loss shall have been insured).
Section 11.3 Performance by Dycom and Acquisitions. Dycom and
Acquisitions shall have performed in all material respects all obligations and
agreements and complied with all covenants
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contained in this Agreement, to be performed and complied with by it at or prior
to the Closing Date.
Section 11.4 Certificate of Officer. Dycom and Acquisitions shall
deliver to Communications a certificate of their President certifying to the
matters contained in Sections 11.1, 11.2 and 11.3.
Section 11.5 Opinion of Counsel for Dycom and Acquisitions.
Communications and the Communications Shareholders shall have been furnished
with an opinion, dated the Closing Date, of Chopin, Miller & Yudenfreund,
counsel for Dycom and Acquisitions, to the effect that:
(i) Dycom and Acquisitions are validly organized and existing
corporations in good standing under the laws of the Florida and
Pennsylvania, respectively. Each has all requisite corporate power to
carry on its respective business as then conducted and is qualified to
do business in every jurisdiction in which the character and location
of its assets or the nature of the business transacted by it requires
such qualification except where the failure to be so qualified and in
good standing would not have a material and adverse effect on the
financial condition, business, properties or assets of Dycom, its
subsidiaries and Acquisitions taken as a whole. Dycom and Acquisitions
each has all requisite power under its
56
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Articles of Incorporation to carry on its business as then being
conducted.
(ii) The authorized stock of Dycom consists of 50,000,000
shares of common stock, $.33 1/3 par value, of which 8,805,943 shares
are issued and outstanding, and 1,000,000 shares of preferred stock,
$1.00 par value, of which none are issued and outstanding. The
authorized stock of Acquisitions consists of 1,000 shares of common
stock, $1.00 par value, of which 100 shares are issued and outstanding
and held by Dycom. All of the issued common stock of Dycom and
Acquisitions has been duly and validly authorized and issued and is
fully paid and nonassessable.
(iii) The execution, delivery and performance of this
Agreement by Dycom and the issuance by Dycom of the Dycom Shares as
contemplated by this Agreement, have been duly and validly authorized
and approved by its Board of Directors, as required by any applicable
laws, regulation, or articles of incorporation, by-laws or agreement,
and no further proceedings of each of Dycom and Acquisitions are
required therefor; and this Agreement constitutes a valid and binding
obligation of Dycom and Acquisitions except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws of general
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application affecting the enforcement of creditors' rights generally.
(iv) The Dycom Shares to be delivered to the Communications
Shareholders pursuant to this Agreement, when delivered, will be duly
authorized and validly issued and outstanding and fully paid and
nonassessable.
(v) All consents and approvals required for Dycom or
Acquisitions to enter into and perform this Agreement and the
transactions contemplated hereby have been obtained.
(vi) All other actions and proceedings required by law to be
taken by each of Dycom and Acquisitions at or prior to the Closing Date
in connection with this Agreement and the transactions provided for
herein have been duly and validly taken.
(vii) Neither the execution, delivery and performance of this
Agreement by either Dycom or Acquisitions, nor the issuance of the
Dycom Shares pursuant hereto, will materially violate or result in a
material breach of or constitute a material default under any provision
of each of Dycom's or Acquisitions's Articles of Incorporation or
by-laws, or, to the best knowledge of such counsel after due
investigation, any indenture, mortgage, lien, lease, agreement,
instrument, order, judgment, decree or any other restriction of any
kind
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or character to which any property of each of Dycom and Acquisitions is
subject or by which each of Dycom and Acquisitions is bound.
(viii) Except as may be specified by such counsel, they do not
know after inquiry of each of Dycom and Acquisitions of any material
litigation, proceeding or governmental investigation pending or
threatened against or relating to each of Dycom and Acquisitions, its
properties or business, or any litigation, proceeding or governmental
investigation, pending or threatened, relating to the transactions
contemplated by this Agreement.
(ix) The Articles of Merger referred to in Section 1.2 has
been duly executed by Acquisitions in accordance with Pennsylvania law.
To the best of counsel's knowledge, upon the filing of the Articles of
Merger with the Secretary of the Commonwealth of Pennsylvania, the
Merger will be effective as provided in the Articles of Merger. Each
share of Communications capital stock issued and outstanding
immediately prior to the Effective Time will, at the effective time
stated in the Articles of Merger, automatically and without any action
on the part of the holders thereof, be converted into the Dycom Shares
as provided in Article II hereof.
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In rendering such opinions, such counsel may rely on the certificates
delivered under Section 11.4 and as to factual matters upon certificates
furnished by officers or directors of Dycom or Acquisitions or by government
officials, and upon such other documents and data as such counsel deem
appropriate as a basis for their opinion. Such counsel may state that they are
admitted to practice only in the States of Florida, Louisiana, Georgia and
Connecticut, that they are not admitted to the Bar in any other state and are
not experts in the law of any other state, and that to the extent their opinions
concern the laws of any other state such counsel has relied upon the opinion of
counsel reasonably satisfactory to such counsel who are admitted to practice in
such state.
Section 11.6 Absence of Litigation. There shall not be any actual or
threatened action, proceeding or investigation which is directed towards,
restraining, prohibiting or invalidating this Merger.
Section 11.7 Employment Agreement. Communications shall have entered
into a separate employment agreement with the Communications Shareholders,
respectively, in the form and substance attached hereto as Exhibits "B.1" and
"B.2."
Section 11.8 Release. Communications and the Communications
Shareholders shall execute a release in the form attached hereto as Exhibit "C."
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Section 11.9 Consents. The consents of the Board of Directors of Dycom,
the Board of Directors of Acquisitions, and the Lenders, as provided in Section
5.5 hereof, shall be delivered to the Communications Shareholders.
Section 11.10 PNC and Comcast Cable Communications, Inc. shall have
consented to the Merger on or before the Closing Date.
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ARTICLE XII
EXPENSES
Section 12.1 Parties to Pay Own Expenses. Dycom, Communications,
Acquisitions and the Communications Shareholders will pay their respective
expenses, if any, incurred in connection with the transactions contemplated by
this Agreement.
ARTICLE XIII
TERMINATION AND AMENDMENT
Section 13.1 Termination. This Agreement may be terminated without
liability, at any time prior to the Closing, only on the following conditions or
occurrences:
(a) by the joint agreement of Dycom, Acquisitions,
Communications and the Communications Shareholders;
(b) by Dycom and Acquisitions, if they have not received an
opinion by Deloitte & Touche L.L.P. that the Merger will qualify as a
pooling of interests;
(c) by Dycom and Acquisitions or Communications and the
Communications Shareholders, if the Closing shall not have been
consummated on or before July 31, 1997, unless adjourned to a later
date by mutual consent in writing; or
(d) by Dycom and Acquisitions, if any matters come to their
attention relating to the business of Communications which could
materially and adversely affect the financial
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condition, business, properties or assets of Communications; provided,
however, that an adverse change or effect which results only from a
general decline in economic or industry conditions not related
specifically to Communications will not be deemed to be an event
included in or contemplated by this paragraph.
(e) by Communications or the Communications Shareholders, if
any matters come to their attention relating to the business of Dycom
which could materially and adversely affect the financial condition,
business, properties or assets of Dycom; provided, however, that an
adverse change or effect which results only from a general decline in
economic or industry conditions not related specifically to Dycom will
not be deemed to be an event included in or contemplated by this
paragraph.
Section 13.2 Amendment. Dycom, Acquisitions, Communications and the
Communications Shareholder may, in a writing signed and duly authorized by all
of them, amend, modify or supplement this Agreement at any time.
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ARTICLE XIV
Binding Agreement
Section 14.1 Succession. All terms, covenants, representations,
warranties and conditions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
Section 14.2 Assignment. Dycom shall not be permitted to assign its
interest in this Agreement.
ARTICLE XV
Survival of Warranties
Section 15.1 Except as otherwise provided in the Agreement, all
representations, warranties and covenants of the parties made herein or in
connection herewith shall survive the Closing for a period of one year. Those
contained in Sections 9.1, 9.2 and 18.8 shall not be limited in term, those
contained in Section 8.1 shall survive for five years, and those made by
Communications and the Communications Shareholders which (a) relate to tax or
environmental matters or (b) are contained in Section 4.22 shall survive for the
greater of, in each case, five years or the expiration of all statutes of
limitations applicable with respect thereto.
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ARTICLE XVI
Dycom Directorship
Section 16.1 Subject to the provisions hereof, George Tamasi shall have
the right to nominate a person, including himself, to be a member of Dycom's
Board of Directors. Any such nominee shall by subject to approval by Dycom and,
in the event required by Dycom's Articles of Incorporation and/or by-laws, to
the approval of Dycom shareholders. The right to propose a nominee for Dycom's
Board of Directors, as provided in this Article, shall be exercisable only (a)
after the expiration of six (6) months following the Closing Date, (b) during
the initial term of George Tamasi's employment agreement, and (c) while George
Tamasi remains record owner of 250,000 Dycom shares acquired by him as a result
of the Merger or otherwise.
ARTICLE XVII
HART-SCOTT-RODINO ACT FILING
Section 17.1 The parties will file all required notification and report
forms pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the
"Hart-Scott-Rodino Act") and they will promptly respond to all requests for
additional information made by either the Federal Trade Commission ("FTC") or
the Department of Justice. Each party will notify the other party and their
counsel promptly of any requests for additional information, comments or
questions by the FTC or the Antitrust Division of the
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U.S. Department of Justice ("Antitrust Division") as to such filings and will
promptly keep the other informed with respect to filings and communications
between a party or its representatives, on the one hand, and the FTC or the
Antitrust Division, on the other hand, with respect to this Agreement or the
transactions contemplated hereby.
ARTICLE XVIII
Notices and Provisions of General Application
Section 18.1 Limitations for Breach or Pursuant to Indemnity.
Notwithstanding anything contained herein to the contrary, the Communications
Shareholders' liability for any breach of warranty or covenant or pursuant to
any indemnity given under this Agreement shall be limited to the extent that
such liabilities exceed $375,000.00, and in no event shall Communications
Shareholders' liability exceed $2,800,000.00. The limitation of liability set
forth in this section shall be applicable to any and all causes of action.
Section 18.2 Notices. All notices, requests, waivers and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given if delivered
personally, given by prepaid telegram or mailed registered or certified
first-class mail, postage prepaid, as follows:
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If to Communications or Communications Shareholders:
Mr. George Tamasi
Mr. Thomas Polis
c/o Communications Construction Group, Inc.
235 East Gay Street
P.O. Box 561
West Chester, PA 19380
with copies to:
Joseph T. Kelley, Jr., Esquire
Kelley and Murphy
Union Meeting Corporate Center V
925 Harvest Drive, Suite 160
Blue Bell, PA 19422
If to Dycom and/or Acquisitions:
Mr. Thomas R. Pledger
Dycom Industries, Inc.
First Union Center
4440 PGA Boulevard, Suite 600
Palm Beach Gardens, FL 33410
with copies to:
L. Frank Chopin, Esquire
Chopin, Miller & Yudenfreund
440 Royal Palm Way, Suite 200
Palm Beach, Florida 33480
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Section 18.3 Place of Closing, Closing Date. The Closing shall take
place at the Palm Beach, Florida offices of Chopin, Miller & Yudenfreund on July
31, 1997, or at such other place, and at such time, as the parties may mutually
agree. The date of Closing is herein called the "Closing Date." At Closing, the
parties to this Agreement will exchange certificates, opinions and other
documents in order to determine whether the terms and conditions of this
Agreement required to be satisfied at or prior thereto have been satisfied. If
the terms and conditions required to be satisfied have been so satisfied, the
surrender and exchange of certificates representing the Communications Shares
and Dycom common stock shall occur as provided in Section 2.2 hereof and the
Articles of Merger, theretofore duly executed, shall be filed with the
Department of State of the Commonwealth of Pennsylvania, pursuant to
Pennsylvania law, in order to consummate the Merger.
Section 18.4 Entire Understanding. This Agreement constitutes the
entire agreement and supersedes all prior agreements, both written and oral,
among the parties hereto with respect to the subject matter hereof.
Section 18.5 Waivers. The failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect its right
at a later time to enforce the same. No waiver by any party of any condition or
of any breach of any term,
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covenant, representation or warranty contained in this Agreement shall be
effective unless in writing, and no waiver in any one or more instances shall be
deemed to be a further or continuing waiver of any such condition or breach in
other instances or a waiver of any other condition or breach of any other term,
covenant, representation or warranty.
Section 18.6 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 18.7 Headings. The headings preceding the text of Sections of
this Agreement are for convenience only and shall not be deemed part of this
Agreement.
Section 18.8 Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida.
Section 18.9 Attorney's Fees. In the event any party shall be required
to file suit or otherwise retain counsel to enforce or assist in the enforcement
of any of the terms of this Agreement or to recover damages for the breach of
this Agreement, the prevailing party shall be entitled to recover attorney's
fees and costs incurred at all levels of proceedings. This provision shall
survive the Closing.
IN WITNESS WHEREOF, the parties hereto have duly executed
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this Agreement as of the date first above written.
ATTEST: COMMUNICATIONS CONSTRUCTION
GROUP, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
COMMUNICATIONS SHAREHOLDERS
/s/
-----------------------------------
GEORGE TAMASI, Individually
/s/
-----------------------------------
THOMAS POLIS, Individually
ATTEST: DYCOM INDUSTRIES, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
ATTEST: DYCOM ACQUISITIONS, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
<PAGE>
EXHIBIT B
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This Amendment to that certain Agreement and Plan of Merger dated July
7, 1997 ("Agreement") is entered into as of the 29th day of July, 1997 by and
among Communications, Dycom, Acquisitions, and George Tamasi and Thomas Polis,
the owners of record of all of the issued and outstanding stock of
Communications. Except as otherwise specified herein, capitalized terms used
herein which are defined in the Agreement shall have the respective meanings
ascribed thereto herein.
W I T N E S S E T H
WHEREAS, the parties to this Amendment have signed the Agreement which
provides that Acquisitions shall be merged into Communications, with
Communications being the Surviving Corporation; and
WHEREAS, the parties are desirous of modifying certain provisions of
the Agreement by this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree to
amend the Agreement in the following respects:
A. Section 1.2 of the Agreement shall be amended by striking the
language "12:00 midnight on July 31, 1997 (the "Effective Time"), unless the
Articles of Merger are filed subsequent to July
<PAGE>
31, 1997, in which event the merger shall be effective at", and inserting
"("Effective Time")" after the first reference to Pennsylvania.
B. Section 8.4 of the Agreement shall be deleted in its entirety and
inserted in lieu thereof shall be the following:
At Closing, Dycom shall issue an additional 21,538 shares of
Dycom common stock to each of the Communications Shareholders
in satisfaction of the $600,000 shareholder loan (including
any interest or other charges due in connection with the same)
reported in Communications' financial statements for the
fiscal year ended May 31, 1997. Each such additional share
shall bear the legend provided in Section 9.1 of the
Agreement. The Communications Shareholders' acknowledgment
provided in Section 9.2 of the Agreement shall also apply with
respect to such additional shares. Any and all
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representations, warranties and covenants made in the
Agreement with respect to the Dycom Shares shall also apply
with respect to such additional shares. The original of the
notes and other evidence of such shareholder loans shall be
appropriately marked to indicate payment and the same shall be
delivered to Dycom on the Closing Date.
C. Sections 10.8 and 11.7 of the Agreement shall be amended by striking
the language "attached hereto as Exhibits 'B.1' and 'B.2'" and inserting in lieu
thereof "attached to the Amendment as Exhibits 'B.1A' and 'B.2A'."
D. Section 11.8 of the Agreement shall be amended by striking the
language "attached hereto as Exhibit 'C'" and inserting in lieu thereof
"attached to the Amendment as Exhibit C-1."
E. Section 15.1 of the Agreement shall be amended by striking the
language "or environmental" from the second sentence.
F. Except as modified by this Amendment, the Agreement shall remain in
full force and effect.
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<PAGE>
G. This Amendment may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the date first above written.
ATTEST: COMMUNICATIONS CONSTRUCTION
GROUP, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
COMMUNICATIONS SHAREHOLDERS
/s/
----------------------------------
GEORGE TAMASI, Individually
/s/
----------------------------------
THOMAS POLIS, Individually
ATTEST: DYCOM INDUSTRIES, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
ATTEST: DYCOM ACQUISITIONS, INC.
/s/ By: /s/
- --------------------------------- --------------------------------
(Corporate Seal) Its:
-------------------------------
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