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Exhibit 10.1
CONSULTING AGREEMENT
This Agreement is made and entered into as of the 1st day of March,
2000, by and between Piedmont Natural Gas Company, Inc., a North Carolina
corporation ("Piedmont"), and Xxxx X. Xxxxxxx, an individual residing in
Charlotte, North Carolina ("Consultant").
WHEREAS, Piedmont is a local distribution company ("LDC") primarily
engaged in the transportation, distribution and sale of natural gas, propane and
other sources of energy (the "Energy Distribution Business"); and
WHEREAS, Consultant has extensive experience in the Energy Distribution
Business; and
WHEREAS, Piedmont desires to obtain and Consultant desires to provide
the consulting services described herein on the terms and conditions set forth
herein.
NOW, THEREFORE, it is agreed as follows:
1. DESCRIPTION OF SERVICES. During the term of this Agreement,
Consultant will provide advice and assistance to the Chief Executive Officer and
the Board of Directors on various governmental, regulatory and civic matters and
undertake such other duties as may be requested by the Chief Executive Officer
or the Board of Directors. The services described above are hereinafter referred
to as "Consulting Services."
2. TERM OF SERVICES. Subject to the provisions of Paragraph 8 of this
Agreement, Consultant will provide the Consulting Services to Piedmont for a
period of 12 months, beginning March 1, 2000 and ending February 28, 2001;
provided, however, that the term of this Agreement shall automatically extend
for an additional 12 months period if neither party gives notice of termination
on or before January 29, 2001 and shall automatically extend for an additional
12 months period if neither party gives notice of termination on or before
January 29, 2002.
3. CONSULTING FEES. For providing the Consulting Services to Piedmont,
Consultant will receive annual consulting fees of $195,000, payable in 12 equal
monthly payments, payable in advance on the 1st day of each month during the
term of this Agreement.
4. REIMBURSEMENT OF EXPENSES. Piedmont will reimburse Consultant for
reasonable travel and other out-of-pocket expenses incurred and documented by
Consultant in connection with the Consulting Services. Consultant will submit a
documented statement of reimbursable expenses not less than on a monthly basis,
and reimbursement of such expenses shall be due and payable at the next monthly
payment date for consulting fees.
5. OFFICE SPACE AND SECRETARIAL SERVICES. Piedmont will provide
Consultant with office space at Piedmont's general office building; provided,
however, that Piedmont has no obligation to
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provide office space at any specific location within Piedmont's general office
building. In addition, Piedmont will provide Consultant with secretarial
services.
6. CONFIDENTIAL INFORMATION. Piedmont and Consultant acknowledge that
Consultant may have access to confidential and proprietary information belonging
to Piedmont in order for Consultant to perform the Consulting Services.
Consultant agrees to hold in confidence all knowledge or information of a
confidential or proprietary nature ("Confidential Information") with respect to
the business of Piedmont or any parent, subsidiary or affiliated corporation of
Piedmont received by him during the term of this Agreement, and Consultant will
not disclose or make use of such information either during or for a period of
five years after the term of this Agreement without the prior written consent of
Piedmont. For the purpose of this paragraph, "Confidential Information" shall
not include information which is (i) already known by Consultant without an
obligation of confidentiality (it being understood that any information acquired
by Consultant while he was an officer of Piedmont and not excluded by (ii),
(iii) or (iv) below shall be subject to an obligation of confidentiality), (ii)
publicly known or becomes publicly known through no unauthorized act of
Consultant, (iii) approved in writing by Piedmont for disclosure, or (iv)
required to be disclosed pursuant to a requirement of a governmental agency or
law so long as the disclosing party provides the other party with notice of such
requirement prior to any such disclosure. Upon termination of this Agreement,
Consultant will return to Piedmont any and all copies of any written
Confidential Information. Piedmont may specifically enforce any undertaking or
enjoin any action contained in or prohibited by this paragraph in the event of
breach or threatened or anticipated breach of the obligations herein. Such
remedies are in addition to all other remedies that may be available to
Piedmont.
7. NON-DISCLOSURE. Piedmont and Consultant agree that except to the
extent required by applicable governmental regulation or law the existence of or
the terms and conditions of this Agreement will not be disclosed to any person
other than an employee or agent of Piedmont or Consultant who agrees not to
disclose such information except as permitted by this paragraph.
8. INDEPENDENT CONTRACTOR. Consultant is an independent contractor.
This Agreement does not make Consultant an employee or agent of Piedmont, and
does not create a partnership or joint venture. Consultant shall not have the
power to obligate or bind Piedmont in any manner whatsoever. Consultant may
accept other engagement provided that such other engagement is not by a
competitor of Piedmont and does not interfere with his performance of the
Consulting Services. For the purpose of this paragraph "competitor" means any
entity who receives 5% or more of its revenues from the sale of natural gas,
electricity, propane or other energy products or services competing with
Piedmont.
9. TERMINATION.
(a) Unless sooner terminated as provided herein, this Agreement shall
terminate at 12:00 midnight on February 28, 2003.
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(b) This Agreement shall terminate upon the death of Consultant during
the term of this Agreement, in which event Consultant's estate shall be entitled
to receive all fees and expense reimbursement due Consultant through the date of
death.
(c) This Agreement shall terminate upon the total permanent disability
of Consultant during the term of this Agreement, in which event Consultant shall
receive all fees and expense reimbursement due Consultant through the date of
determination of such disability. For purposes of this Section, Consultant shall
be deemed to have suffered permanent disability upon the determination of such
status by the United States Social Security Administration or a certification to
such effect by Consultant's regular physician.
(d) This Agreement may be terminated at any time by the Consultant upon
60 days' written notice to Piedmont. Upon such termination, the Consultant shall
be entitled to receive all fees and expense reimbursement through the effective
date of such termination.
(e) This Agreement may be terminated by Piedmont at any time, but any
termination by Piedmont, other than termination for cause, shall entitle
Consultant to receive the monthly retainer fee provided in paragraph 3 of this
Agreement on the first day of each month from the date of termination through
February, 2003 . The Consultant shall have no right to receive fees and expense
reimbursement for any period after termination for "cause." Termination for
cause shall mean termination because of Consultant's personal dishonesty
(whether occurring prior to or during the term of this Agreement), incompetence,
willful material misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform the Consulting Services, willful material
violation of an law, rule or regulation (other than traffic or traffic-related
violations or similar offenses) or final cease-and-desist order, or material
breach of any provisions of this Agreement.
10. FORCE MAJEURE. In the event that either Consultant or Piedmont is
rendered unable, wholly or in part, by force majeure to carry out his or its
obligations under this Agreement, it is agreed that the obligations of both
parties, so far as they are affected by such force majeure, shall be suspended
during such period of force majeure, but for no longer period, and such cause
shall so far as practicable be remedied with all reasonable dispatch. As used
herein, the term force majeure means acts of God, strikes, lockouts or other
industrial disturbances, acts of the public enemy, wars, blockades,
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
floods, arrests, the order of any court or governmental authority having
jurisdiction while the same is in force and effect, civil disturbances, or any
other cause whether of the kind herein enumerated or otherwise, not reasonably
within the control of the party claiming suspension and which by exercise of due
diligence such party is unable to prevent or overcome. By way of example, but
not limitation, an injunction which prevents Consultant from performing the
Consulting Services or which prevents Piedmont for accepting the Consulting
Services is an event of force majeure that would excuse Consultant from
performing any Consulting Services and Piedmont from making any payments for any
Consulting Services not performed as a result of the event of force majeure.
Neither party shall be liable in damages to the other party for any act,
omission or circumstance occasioned by, or in consequence of, force majeure as
herein defined.
11. ASSIGNMENT.
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(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of Piedmont which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the voting securities or assets of Piedmont.
(b) Since Piedmont is contracting for the unique and personal skills of
Consultant, Consultant shall be precluded from assigning or delegating his
rights or duties hereunder.
12. ARBITRATION. All disputes between Piedmont and Consultant arising
out of this Agreement, including disputes as to arbitrability, shall be
submitted to binding arbitration in Charlotte, North Carolina under the rules of
the American Arbitration Association. Any decision of the arbitrators shall be
final, binding and nonappealable. Any amounts determined to be due by one party
to another shall be paid within thirty days of such determination.
13. MODIFICATION; WAIVER; AMENDMENTS. No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing, signed by Consultant and Piedmont. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time. No amendments or
additions to this Agreement shall be binding unless in writing and signed by
both parties, except as herein otherwise provided.
14. APPLICABLE LAW. This Agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of North Carolina.
15. SEVERABILITY. The provision of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first hereinabove written.
Piedmont Natural Gas Company, Inc.
By: /s/ Xxxx X. Xxxxxxxx
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/s/ Xxxx X. Xxxxxxx
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Consultant
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