INDEMNIFICATION AGREEMENT
Exhibit 10.1
This INDEMNIFICATION AGREEMENT, dated as of , (this “Agreement”), is made by and between Pike Corporation, a North Carolina corporation (the “Company”), and (“Indemnitee”).
RECITALS
WHEREAS, the Company and Indemnitee are each aware of the exposure to litigation of members of the Board of Directors of the Company (the “Board”) when exercising their duties to the Company;
WHEREAS, the Company desires to benefit from the services of highly qualified, experienced and otherwise competent persons such as Indemnitee;
WHEREAS, Article IV of the Company’s Amended and Restated Bylaws (the “Bylaws”) provides for indemnification of directors and that any rights to such indemnification are non-exclusive to any other rights to which the Company’s directors may be entitled under the laws of the State of North Carolina, the Company’s Amended and Restated Articles of Incorporation (the “Articles”) any agreement, vote of shareholders or disinterested directors or otherwise;
WHEREAS, prior to the Company’s reincorporation into North Carolina from Delaware, the Company and Indemnitee entered into that certain Indemnification Agreement dated (the “Prior Agreement”), which provided Indemnitee benefits under Delaware law comparable to those set forth in this Agreement;
WHEREAS, in recognition of the need to provide Indemnitee with substantial protection against personal liability, in order to procure Indemnitee’s service or continued service to the Company and to enhance Indemnitee’s ability to serve the Company in an effective manner, and in order to provide such protection pursuant to express contract rights (intended to be enforceable irrespective of, among other things, any amendment to the Articles or Bylaws, any change in the composition of the Board or any change-in-control or business combination transaction relating to the Company), the Company wishes to provide in this Agreement for indemnification against Indemnifiable Losses and the advancement of Expenses (each as defined below) to Indemnitee as set forth in this Agreement and for the continued coverage of Indemnitee under D&O Insurance (as defined below) maintained by the Company; and
WHEREAS, Indemnitee is a director of the Company, and his or her willingness to serve in such capacity is predicated, in substantial part, upon the Company’s willingness to enter into this Agreement;
NOW, THEREFORE, in consideration of the above premises, the mutual covenants contained herein and of director’s continued service as a member of the Board, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement:
“Change in Control” shall be deemed to have occurred in any of the following circumstances:
(a) any Person is or becomes the Beneficial Owner of securities of the Company representing 20% or more of the Voting Stock without the prior approval of at least a majority of the Incumbent Directors; provided that a “Change in Control” will not be deemed to have occurred if a Person acquires Beneficial Ownership of 20% or more of the Voting Stock as a
result of a reduction in the number of shares of the Company’s Voting Stock unless and until such Person thereafter becomes the Beneficial Owner of any additional shares of Voting Stock representing 1% or more of the then-outstanding Voting Stock, other than in an acquisition directly from the Company that is approved by a majority of the Incumbent Directors or other than as a result of a stock dividend, stock split or similar transaction effected by the Company in which all holders of Voting Stock are treated equally;
(b) a sale of the Company (whether by merger, consolidation, recapitalization, reorganization, sale of securities, sale of assets or otherwise) is consummated, unless immediately following such transaction (i) more than 50% of the members of the governing body of the surviving entity were Incumbent Directors at the time of execution of the initial agreement providing for such transaction, (ii) no Person is the Beneficial Owner of 20% or more of the then-outstanding Voting Stock, and (iii) more than 50% of the then-outstanding Voting Stock is Beneficially Owned by all or substantially all of the individuals and entities who were the Beneficial Owners of the Voting Stock immediately prior to such transaction in substantially the same proportions as their ownership immediately prior to such transaction;
(c) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or an agreement for the sale or disposition by the Company (in one transaction or a series of related transactions) of all or substantially all of the Company’s assets; or
(d) a majority of the directors are not Incumbent Directors.
“Beneficially Own,” “Beneficial Owner” and “Beneficial Ownership” mean having, or a Person who has, direct or indirect ownership within the meaning of Rule 13d-3 promulgated under the Exchange Act.
“Claim” means, except as stated below, any threatened, pending or completed action, demand, suit or proceeding, whether civil, criminal, administrative, arbitrative, investigative or other and whether formal or informal, including but not limited to any investigation, inquiry, hearing or alternative dispute resolution process as well as any appeal resulting therefrom.
“Constituent Capacity” means serving as a director, officer, partner, member, trustee, administrator, employee or agent of a Constituent Enterprise.
“Constituent Enterprise” means, other than the Company, a foreign or domestic corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise.
“D&O Insurance” means an insurance policy or policies providing directors’ and officers’ liability insurance, whether on a primary or excess basis.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Expenses” means, to the extent actually and reasonably incurred by or on behalf of Indemnitee, attorneys’ and experts’ fees and expenses and all other costs and expenses in connection with investigating, defending, being a witness in or otherwise participating in (including on appeal), or preparing to investigate, defend, be a witness in or otherwise participate in (including on appeal), any Indemnifiable Claim or Standard of Conduct Determination (as defined in Section 5(b)).
“Incumbent Directors” means the individuals who, as of the date hereof, are directors of the Company and any individual becoming a director subsequent to the date hereof whose election,
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nomination for election by the Company’s shareholders or appointment was approved by the then Incumbent Directors in accordance with the Bylaws; provided, that an individual shall not be an Incumbent Director if such individual’s election or appointment to the Board occurs as a result of an actual or threatened election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election or removal of Directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board.
“Indemnifiable Claim” means any Claim in which Indemnitee is or is threatened to be involved as a party, witness or otherwise by reason of the fact that he or she is or was a director of the Company, or is or was serving at the request of the Company in a Constituent Capacity, or by reason of any action alleged to have been taken or omitted in such capacity, including a Claim to enforce any provision of this Agreement.
“Indemnifiable Losses” means any and all Losses relating to, arising out of or resulting from any Indemnifiable Claim.
“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or any subsidiary thereof or Indemnitee in any matter material to either such party, or (ii) any other named (or as to a threatened matter, reasonably likely to be named) party to the Indemnifiable Claim giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
“Losses” means, to the extent actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf and except as provided below, any and all Expenses, damages, losses, liabilities, fines, penalties, judgments and amounts paid in settlement.
“Person” means any “person” or “group” (as such terms are used in Sections 13(d) or 14(d) of the Exchange Act), other than the Company or any employee benefit plan sponsored by the Company or any wholly owned subsidiary thereof.
“Voting Stock” means securities of the Company entitled to vote generally in the election of directors (or similar governing bodies).
2. Indemnification Obligation. Subject to Section 5, the Company shall indemnify Indemnitee against all Indemnifiable Losses to the fullest extent permitted or required by the laws of the State of North Carolina as in effect from time to time. Notwithstanding the foregoing, no indemnification, reimbursement or payment shall be required of the Company hereunder:
(a) with respect to any Claim or any part thereof arising out of acts or omissions for which applicable law prohibits indemnification;
(b) with respect to any Claim or part thereof or Losses where a determination has been made pursuant to Section 5(b) that Indemnitee’s activities in question were at the time taken known or believed by him or her to be clearly in conflict with the best interests of the Company (and/or, if applicable, in conflict with in the best interests of the Constituent Enterprise) or Indemnitee otherwise failed to satisfy the applicable standard of conduct for indemnification under North Carolina law;
(c) with respect to any Claim or part thereof or Losses arising under Section 16(b) of the Exchange Act, or similar provisions of federal, state or local statutory or common law, pursuant to which
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Indemnitee shall be obligated to pay any penalty, fine, settlement or judgment; provided, however, that the Company shall, in accordance with Section 3, advance Expenses in connection with Indemnitee’s defense of any such Claim, which advances shall be repaid to the Company unless it is ultimately determined that Indemnitee is entitled to indemnification;
(d) with respect to any Claim initiated by Indemnitee without the prior written consent or authorization of the Board of Directors of the Company, provided that this exclusion shall not apply with respect to any Claim brought by Indemnitee to enforce any provision of this Agreement, whether by claim, cross claim, or counterclaim in a legal proceeding, arbitration or otherwise where Indemnitee has been successful on the merits or otherwise with respect to such Claim;
(e) in connection with proceedings or claims involving the enforcement of the provisions of any employment, severance or compensation plan or agreement that Indemnitee may be a party to, or beneficiary of, with the Company or any of its subsidiaries; or
(f) for which payment has actually been received by or on behalf of Indemnitee under any applicable D&O Insurance.
3. Advancement of Expenses. Prior to the final disposition of any Indemnifiable Claim and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement and without regard to whether a Standard of Conduct Determination (as hereinafter defined) has been made as to such Indemnifiable Claim or part thereof, the Company will advance to or reimburse Indemnitee for any and all Expenses relating to, arising out of or resulting from such Indemnifiable Claim paid or incurred by Indemnitee; provided, that the Company shall have no obligation to advance Expenses incurred by Indemnitee with respect to any Claim initiated by Indemnitee (other than a Claim brought by Indemnitee to enforce any provision of this Agreement); and provided further, that Indemnitee shall execute and deliver to the Company an unsecured undertaking by or on behalf of Indemnitee to repay any amounts paid, advanced or reimbursed by the Company hereunder unless it shall ultimately be determined that Indemnitee is entitled to indemnification. Indemnitee shall promptly repay, without interest, any amounts actually advanced to Indemnitee that, at the final disposition of the Indemnifiable Claim to which the advance related, were in excess of amounts paid or payable by Indemnitee in respect of Expenses relating to, arising out of or resulting from such Indemnifiable Claim. The Company shall advance, pay or reimburse Expenses pursuant to this Section 3 within thirty (30) calendar days of its receipt of a written request from Indemnitee accompanied by reasonable documentation evidencing the amount or nature of the Expenses, subject to the Company’s prior receipt of a written request pursuant to Section 4 and the undertaking referenced in this Section 3.
4. Procedure for Indemnification. To obtain indemnification or advancement of expenses under this Agreement, Indemnitee shall submit to the Company a written request therefor, including a brief description (based upon information then available to Indemnitee) of such Indemnifiable Claim or Indemnifiable Loss.
5. Determination That Indemnification Is Proper.
(a) To the extent that Indemnitee has been wholly successful, on the merits or otherwise, in the defense of any Indemnifiable Claim, Indemnitee shall be indemnified against all Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 5(b)) shall be required.
(b) To the extent that the provisions of Section 5(a) are inapplicable to an Indemnifiable Claim or part thereof that shall have been finally disposed of, or if any Indemnifiable Claim is concluded without a final adjudication on the issue of liability, the Company shall, subject to the provisions of
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Sections 2(a)–2(e), nevertheless indemnify Indemnitee for Indemnifiable Losses unless a determination is made that indemnification of Indemnitee is not proper in the circumstances because his or her actions in question were, at the time taken, known or believed by him or her to be clearly in conflict with the best interests of the Company (and/or, if applicable, in conflict with in the best interests of the Constituent Enterprise) or otherwise failed to satisfy the applicable standard of conduct for indemnification under North Carolina law (a determination of whether or not such actions were so known or believed or otherwise failed to satisfy the foregoing standard shall be a “Standard of Conduct Determination”). In making the Standard of Conduct Determination, the knowledge and/or actions, or failure to act, of any other director, officer, partner, member, trustee, employee or agent of the Company or any entity or other enterprise of which Indemnitee, at the request of the Company, is or was serving or agreed to serve as a director officer, partner, member, trustee, employee or agent shall not be imputed to Indemnitee for purposes of determining his or her right to indemnification under this Agreement. Any Standard of Conduct Determination shall be made in accordance with this paragraph. If a Change in Control shall not have occurred, or if a Change in Control shall have occurred but Indemnitee shall have requested that the Standard of Conduct Determination be made pursuant to this sentence, the Standard of Conduct Determination shall be made either (1) by the Board of Directors of the Company by majority vote of a quorum consisting of directors not at the time parties to the Indemnifiable Claim; (2) if a quorum cannot be obtained under subdivision (1), by a majority vote of a committee designated by the Board of Directors of the Company (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the Indemnifiable Claim; or (3) by Independent Counsel selected by the Board of Directors of the Company or its committee in the manner prescribed by subdivision (1) or (2), or if a quorum cannot be obtained under subdivision (1) or a committee cannot be designated under subdivision (2), by a majority vote of the full Board of Directors (in which selection directors who are parties may participate). If a Change in Control shall have occurred and Indemnitee shall not have requested that the Standard of Conduct Determination be made pursuant to the prior sentence, the Standard of Conduct Determination shall be made by Independent Counsel selected by Indemnitee. Any Standard of Conduct Determination made by Independent Counsel shall be delivered in a written opinion addressed to the applicable Board of Directors, a copy of which shall be provided to Indemnitee.
(c) The Company shall use its reasonable best efforts to cause any Standard of Conduct Determination required under Section 5(b) to be made as promptly as practicable. If (i) the person or persons empowered or selected under this Section 5 to make the Standard of Conduct Determination shall not have made a determination within sixty (60) days after the later of (A) receipt by the Company of written notice from Indemnitee advising the Company of the final disposition or other conclusion without final adjudication on the issue of liability of the applicable Indemnifiable Claim and (B) the selection of an Independent Counsel, if such determination is to be made by Independent Counsel, that is permitted under the provisions of Section 5(d) to make such determination and (ii) Indemnitee shall have fulfilled his or her obligations set forth in Section 5(e), then Indemnitee shall be deemed to have satisfied the applicable standard of conduct; provided, that such sixty-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person or persons making such determination in good faith require such additional time to obtain or evaluate documentation or other information relating thereto.
(d) If a Standard of Conduct Determination is to be made by Independent Counsel pursuant to Section 5(b), the party who selected such Independent Counsel shall give notice to the other party advising such party of the identity of the Independent Counsel selected. In either case, the Company or Indemnitee, as applicable, may, within five business days after receiving written notice of selection from the other, deliver to the other a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of “Independent Counsel” in Section 1, and the objection shall set forth with
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particularity the factual basis of such assertion. Absent a proper and timely objection, the person or firm so selected shall act as Independent Counsel. If such written objection is timely made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit and (ii) the non-objecting party may, at its option, select an alternative Independent Counsel and give written notice to the other party advising such party of the selection, in which case the provisions of the two immediately preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel shall have been selected within 30 days after the party who makes the selection sends the initial notice of selection, the party who did not make the selection may petition the courts of the State of North Carolina for resolution of any objection which shall have been made by such party to the other party’s selection and/or for the appointment as Independent Counsel of a person or firm selected by the Court or by such other person as the Court shall designate. In all events, the Company shall pay all of the reasonable fees and expenses of the Independent Counsel incurred in connection with making a Standard of Conduct Determination pursuant to this Agreement.
(e) Indemnitee shall cooperate with the person or persons making a Standard of Conduct Determination pursuant to Section 5(b), including providing to such person or persons, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and which the person or persons making such determination reasonably request. Provided that the person or persons making such Standard of Conduct Determination determine that Indemnitee is entitled to indemnification hereunder, the Company shall further indemnify Indemnitee against any and all Expenses actually and reasonably incurred by Indemnitee in so cooperating with the person or persons making such Standard of Conduct Determination.
(f) The Company and Indemnitee acknowledge that, in certain instances, applicable law or public policy may prohibit, or otherwise limit, the Company’s obligation to indemnify their directors under this Agreement or otherwise.
(g) In the event that (i) a determination is made pursuant to Section 5(b) that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 3, (iii) payment of indemnification is not made pursuant to Section 5(a) within thirty (30) days after receipt by the Company of a written request therefor, or (iv) payment of indemnification pursuant to Section 5(b) is not made within thirty (30) days after a Standard of Conduct Determination in which there is not a determination that indemnification is not proper under the circumstances, Indemnitee shall be entitled to seek a judicial determination as to his or her entitlement to such indemnification or advancement of Expenses.
6. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute the amount of Indemnifiable Losses incurred by Indemnitee or on his or her behalf, in such proportion as is deemed fair and reasonable in light of all the circumstances of the Indemnifiable Claim, in order to reflect (a) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving rise to such Indemnifiable Claim and/or (b) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s). The determination of the proportion to be contributed by the Company to Indemnitee shall be made in the same manner as a Standard of Conduct Determination pursuant to Section 5 hereof.
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7. Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the laws of the State of North Carolina, the Articles, the Bylaws, any other agreement, a vote of shareholders or disinterested directors or otherwise.
8. Successful Defense. To the extent that Indemnitee has been successful on the merits or otherwise in defense of an Indemnifiable Claim or in defense of any claim, issue or matter therein, he or she shall be indemnified by the Company against any and all Expenses in connection therewith. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Claim by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
9. Presumptions and Burdens of Proof. Indemnitee shall be entitled, in any Standard of Conduct Determination or judicial proceeding, to a presumption that he or she is entitled to indemnification, advancement of Expenses or both under this Agreement if he or she has provided a written request for indemnification pursuant to Section 4. The Company shall bear the burden of proving, by a preponderance of the evidence, that Indemnitee is not entitled to indemnification or advancement. For purposes of this Agreement, including when making the Standard of Conduct Determination, the termination of any Indemnifiable Claim by judgment, order, settlement, conviction or upon a plea of no contest or its equivalent, shall not, of itself, create a presumption that Indemnitee did not (a) conduct himself or herself in good faith, (b) reasonably believe (i) in the case of conduct in his or her official capacity with the Company, that his or her conduct was in the Company’s best interests and (ii) in all other cases, that his or her conduct was at least not opposed to its best interests, and (c) in the case of any Indemnifiable Claim that is a criminal Claim, had no reasonable cause to believe that his or her conduct was unlawful.
10. Insurance.
(a) The Company shall obtain and maintain D&O Insurance with reputable insurance companies on terms with respect to coverage and amount (including with respect to the payment of Expenses) no less favorable than those of the D&O Insurance for the directors of the Company in effect on the date hereof, except for any changes approved by the Board prior to a Change in Control, provided that such coverage is available on commercially reasonable terms. Indemnitee shall be covered by such D&O Insurance, in accordance with its terms, to the maximum extent of the coverage available for any director of the Company unless the Company determines in good faith that such insurance is not available, or the premium costs (or increases in premium costs of other directors or officers of the Company as a result of such coverage) for such insurance is materially disproportionate to the amount of coverage provided.
(b) Subject to the limitations set forth in Section 12(a) and except as provided in any D&O Insurance maintained by the Company, the obligation of a the Company to indemnify Indemnitee under this Agreement shall be secondary to any applicable D&O Insurance, and all such D&O Insurance shall be primary to the Company’s obligations hereunder, subject to any applicable deductible. Except as provided in any D&O Insurance maintained by the Company, in no event shall this Agreement provide (by operation or law or otherwise) any insurance company any right to subrogation to Indemnitee’s rights hereunder. Except as provided in any D&O Insurance maintained by the Company, in no event shall any insurance company acquire (by subrogation, assignment or otherwise) any right to pursue Indemnitee’s rights hereunder.
(c) Upon request by Indemnitee, the Company shall provide Indemnitee copies of any applicable D&O Insurance maintained by the Company. The Company shall promptly notify Indemnitee of any material change in such D&O Insurance coverage.
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11. Additional Capacities. To the extent that Indemnitee, at the request of the Company, is or was serving or has agreed to serve in a Constituent Capacity, the indemnification provided hereunder will be secondary to any liability insurance and/or indemnification obligations provided by each Constituent Enterprise, as applicable, and those obligations will be primary to the Company’s obligations hereunder; provided, however, that so long as Indemnitee has taken reasonable steps to exercise his or her rights and remedies against such Constituent Enterprise prior to seeking indemnification or advance hereunder, Indemnitee will not be required to exhaust all rights and remedies against such entity prior to enforcing any provision of this Agreement.
12. Duplication of Payments; Subrogation.
(a) The Company shall not be liable under this Agreement to make any payment in connection with any Indemnifiable Claim to the extent that Indemnitee has otherwise received payment of the amounts otherwise payable as indemnity hereunder (including, without limitation, pursuant to any D&O Insurance maintained by the Company.
(b) In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the related rights of recovery of Indemnitee against any other persons or entities. Indemnitee, as a condition of receiving indemnification from the Company, shall execute all documents and do all things that the Company may deem necessary or desirable to perfect such right of recovery, including the execution of such documents necessary to enable the Company effectively to enforce any such recovery.
13. Cooperation in Defense and Settlement. Indemnitee shall not make any admission or effect any settlement with respect to any Indemnifiable Claim without the Company’s written consent unless Indemnitee shall have determined to undertake his or her own defense in such matter and has waived any rights to indemnification by or advancement from the Company (arising under this Agreement or otherwise, except to the extent that indemnification may be required by law). The Company shall have the authority to settle any Indemnifiable Claim to which Indemnitee is a party so long as the Company either (i) obtains Indemnitee’s written consent to such settlement or (ii) such settlement solely involves the payment of money, would not impose (directly or indirectly) any Expense on Indemnitee and includes a complete and unconditional release of Indemnitee from all liability on any claims that are the subject matter of such Indemnifiable Claim. Neither Indemnitee nor the Company shall unreasonably withhold consent to a proposed settlement. Indemnitee acknowledges and agrees that if it is ultimately determined that Indemnitee unreasonably withheld consent to the proposed settlement of an Indemnifiable Claim, his or her unreasonable failure to so consent shall constitute a waiver of all of his or her rights to indemnification and advancement hereunder with respect to such Indemnifiable Claim. Indemnitee and the Company shall cooperate to the extent reasonably possible with each other and with the Company’s insurers in attempts to defend and/or settle Indemnifiable Claims.
14. Assumption of Defense.
(a) Except as otherwise provided in Section 14(b) below, the Company, jointly with any other indemnifying party similarly notified, may assume Indemnitee’s defense in any Indemnifiable Claim, with counsel reasonably satisfactory to Indemnitee and the Company. After notice from the Company to Indemnitee of the Company’s election to assume such defense, the Company will not be liable to Indemnitee under this Agreement or otherwise for Expenses subsequently incurred by Indemnitee in connection with the defense thereof, other than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the right to employ counsel in such Indemnifiable Claim, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at Indemnitee’s own expense unless:
| (i) | The employment of counsel by Indemnitee has been authorized by the Company; or |
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| (ii) | Indemnitee shall have reasonably concluded that (A) counsel employed by the Company initially is unacceptable or later becomes unacceptable to Indemnitee and the Company has failed to employ reasonably acceptable counsel in a reasonably timely manner; (B) there may be a conflict of interest between Indemnitee and the Company (or another party being represented jointly with the Company) in the conduct of the defense of such Indemnifiable Claim; or (C) the Company shall not have employed counsel to assume the defense of such Indemnifiable Claim within a reasonable time following receipt of a written request. |
(b) The Company shall not be entitled to assume the defense of Indemnitee with respect to any Indemnifiable Claim as to which Indemnitee shall have made either of the conclusions provided for in Section 14(a)(ii)(A) or Section 14(a)(ii)(B).
(c) In the event that Indemnitee notifies the Company that he or she has made any of the conclusions set forth in Section 14(a)(ii), the Company shall be required to indemnify Indemnitee against and advance or reimburse to Indemnitee all Expenses incurred (whether incurred by Indemnitee before or after the delivery of such notice) with respect to such Indemnifiable Claim while any of the conditions set forth in Section 14(a)(ii) are present to the fullest extent provided hereunder (including Expenses incurred by Indemnitee with respect to the preparation and delivery of such notice).
(d) If the Company disagrees with Indemnitee’s conclusion under Section 14(a)(ii), the Company shall, within 30 days after the receipt of notice from Indemnitee, appoint Independent Counsel consistent with the procedures specified in Section 5(b) to resolve the dispute. If the Independent Counsel determines that Indemnitee’s conclusion under Section 14(a)(ii) was reasonable, the Company shall further indemnify Indemnitee against any and all Expenses actually and reasonably incurred by Indemnitee in so cooperating with such Independent Counsel.
(e) For the avoidance of doubt, regardless of whether the Company has assumed or is entitled to assume Indemnitee’s defense, the Company shall be entitled to participate in any Indemnifiable Claim at its own expense.
15. Successors and Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance reasonably satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken place. This Agreement shall be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any person acquiring directly or indirectly all or substantially all of the business or assets of the Company, whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the “Company” for purposes of this Agreement).
(b) The indemnification and advancement of Expenses provided by this Agreement shall continue as to a person who has ceased to be a director or officer or who is deceased and shall inure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators, heirs, distributees, legatees and other successors of such person.
(c) This Agreement is personal in nature and neither of the parties hereto may, without the written consent of the other, assign or delegate this Agreement or any rights or obligations hereunder
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except as provided in Section 15(a) and Section15(b). Without limiting the generality or effect of the foregoing, Indemnitee’s right to receive payments hereunder shall not be assignable, whether by pledge, creation of a security interest or otherwise, other than by a transfer by Indemnitee’s will or by the laws of descent and distribution, and, in the event of any attempted assignment or transfer contrary thereto, the Company shall have no liability to pay any amount so attempted to be assigned or transferred.
16. Miscellaneous.
(a) Notice of Claim; Notices. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Claim or matter which may be subject to indemnification or advancement hereunder. Any failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally against written receipt or by facsimile transmission or mailed by prepaid first class mail, return receipt requested, or sent by overnight courier prepaid to the parties at the following addresses or facsimile numbers:
If to the Company, to:
Pike Corporation
000 Xxxx Xxx, XX 000
Xxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
If to Indemnitee, to:
[Indemnitee]
[Address]
(b) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of North Carolina, without giving effect to its principles of conflict of laws. The Company and Indemnitee each hereby irrevocably consent that both parties are subject to the jurisdiction of the state courts of the State of North Carolina for all purposes in connection with any action or proceeding that arises out of or relates to this Agreement, and further agree that the sole and exclusive venue for any such dispute shall be the General Court of Justice, Superior Court Division, in Mecklenburg County, North Carolina. The parties stipulate and agree that any such dispute shall be designated by agreement of the parties as a “mandatory complex business case” pursuant to N.C.G.S. § 7A-45.4 (as such statute may be amended from time to time) or, in the alternative, as a discretionary “complex business” case under Rule 2.1 of the North Carolina General Rules of Practice for the Superior and District Courts (as such rule
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may be amended from time to time), and both parties hereby irrevocably waive any objection to such dispute being so designated. In the event the parties are unable to secure designation of the dispute as a complex business case, or if such designation is revoked at any time, the parties agree that they shall request that the dispute be designated as an “exceptional” case pursuant to Rule 2.1 of the North Carolina General Rules of Practice for the Superior and District Courts (as such rule may be amended from time to time) and agree to cooperate in good faith to secure such designation.
(c) Validity. If any provision of this Agreement or the application of any provision hereof to any person or circumstance is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstance shall not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent, and only to the extent, necessary to make it enforceable, valid or legal. In the event that any court or other adjudicative body shall decline to reform any provision of this Agreement held to be invalid, unenforceable or otherwise illegal as contemplated by the immediately preceding sentence, the parties hereto shall take all such action as may be necessary or appropriate to replace the provision so held to be invalid, unenforceable or otherwise illegal with one or more alternative provisions that effectuate the purpose and intent of the original provisions of this Agreement as fully as possible without being invalid, unenforceable or otherwise illegal.
(d) Amendment; Waiver. This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of Indemnitee and the Company. The observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party against which such waiver is to be asserted, and no waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
(e) Entire Agreement. This Agreement constitutes the entire agreement between the Company and Indemnitee with respect to the subject matter hereof and supersedes any prior agreements between them with respect to the subject matter hereof, including without limitation the Prior Agreement.
(f) Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
(g) Certain Interpretive Matters. Unless the context of this Agreement otherwise requires, (i) “it” or “its” or words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the term “Section” refers to the specified Section of this Agreement; (v) the terms “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation” (whether or not so expressed); and (vi) the word “or” is disjunctive but not exclusive. No provision of this Agreement will be interpreted in favor of, or against, either of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof.
(h) Counterparts. This Agreement may be executed in one or more counterparts, and delivered by facsimile or other means of electronic transmission, each of which shall be deemed to be an original but all of which together shall constitute one and the same agreement.
[Signature Page(s) to Follow]
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IN WITNESS WHEREOF, Indemnitee has executed and the Company has caused its duly authorized representative to execute this Agreement effective as of the date first above written.
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