EXHIBIT 10.9
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is
made as of the 20th day of July, 2005, by and between PIKE ELECTRIC CORPORATION,
a Delaware corporation (hereinafter "Employer"), and XXXXXX XXXX XXXX, an
individual domiciled in the State of North Carolina (hereinafter "Executive").
GENERAL
Executive is currently employed by Employer pursuant to an
Employment Agreement dated as of April 16, 2002 (the "Predecessor Agreement").
In connection with Employer's initial public offering of its common stock (the
"IPO"), Employer and Executive have agreed to amend and restate the Predecessor
Agreement, as set forth herein, as of the closing of the IPO (the date of such
closing, the "Effective Date"). This Agreement shall become effective on the
Effective Date and shall have no force or effect prior to the Effective Date. In
the event that the Effective Date does not occur prior to September 30, 2005,
this Agreement shall be null and void ab initio and the Predecessor Agreement
shall remain in full force and effect.
ARTICLE I
EMPLOYMENT
1.1. Position. Employer hereby hires Executive as President and Chief
Executive Officer of Employer. Executive shall perform the duties of his
position as determined by the Board of Directors of Employer (hereinafter, the
"Board") in accordance with the policies, practices and bylaws of Employer.
Executive shall report directly to the Board.
1.2. Time and Effort. Executive shall serve Employer faithfully, loyally,
honestly and to the best of his ability. Executive shall devote all his business
time and best efforts to the performance of his duties on behalf of Employer.
During his term of employment, Executive shall not at any time or place or to
any extent whatsoever, either directly or indirectly, without the express
written consent of the Board, engage in any outside employment or in any
activity competitive with or adverse to Employer's business, practice or
affairs. This is not intended to prohibit Executive from engaging in
nonprofessional activities such as personal investments or conducting to a
reasonable extent private business affairs, as long as they do not conflict or
interfere with Executive's responsibilities to Employer, provided that Executive
shall not serve on other boards of directors without the prior consent of the
Board. Participation to a reasonable extent in civic, social or community
activities is encouraged.
1.3. Term. The term ("Term") of this Agreement shall commence on and as of
the Effective Date and, unless earlier terminated pursuant to Article IV, shall
continue for a period of three years (hereinafter, the "Initial Term").
Thereafter, the term of this Agreement shall be automatically extended for
additional one-year periods (each, hereinafter, an "Additional Term"), subject
to either party's right to terminate this
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Agreement by giving the other party written notice of its intention to do so at
least sixty (60) days prior to the expiration of the Initial Term or the
Additional Term, as the case may be.
ARTICLE II
COMPENSATION
2.1. Base Salary. Employer agrees to pay Executive, and Executive agrees
to accept, as compensation for the services and obligations set forth herein,
base salary (herein "Base Salary") in cash equal to the sum of Seven Hundred
Fifty Thousand and no/100 dollars ($750,000.00) per year, which sum shall be
paid to Executive by Employer, less any taxes required to be withheld under
federal, state and local law, in accordance with Employer's standard payroll
practices for executive personnel, as same may change from time to time. The
amount of Base Salary shall be subject to adjustment as provided in Section 2.2
below.
2.2. Adjustments to Base Salary. Upward adjustments to Executive's Base
Salary shall be determined by the compensation committee of the Board (the
"Committee") in its sole discretion. For so long as Executive is employed by
Employer there shall be no reductions in Executive's Base Salary.
2.3. Annual Bonuses. Subject to Section 10.1 below, in addition to the
Base Salary described above, Executive shall receive an annual bonus as soon as
practicable after the last business day of each fiscal year of Employer during
the term of Executive's employment hereunder, beginning with Employer's fiscal
year ending June 30, 2006. Each such annual bonus shall consist of (a) a number
of shares of Employer's common stock ("Common Stock") equal to the applicable
Share Number (as defined below), which shall not be subject to transfer
restrictions or forfeiture, and (b) a number of fully vested and exercisable
non-qualified options to purchase a number of shares of Common Stock equal to
the applicable Option Number (as defined below) at a purchase price per share
equal to the applicable Grant Date Price, except that such options shall not be
payable if Employer has failed to satisfy the budget targets established for
such fiscal year. All such shares and options shall have the other terms and be
subject to the other conditions set forth in the equity compensation plan of
Employer under which such shares and options are granted. For purposes of this
Agreement, (i) "Share Number" shall mean the quotient of $250,000 divided by the
applicable Grant Date Price, (ii) "Option Number" shall mean the quotient of
$250,000 divided by one half of the applicable Grant Date Price and (iii) "Grant
Date Price" shall mean the fair market value per share of Common Stock on the
date the Common Stock or options, as applicable, are granted to Executive, as
determined in accordance with the equity compensation plan of Employer under
which such grant is made. Employer shall have no obligation to pay any amount to
Executive under this Section 2.3 with respect to any fiscal year if Executive's
employment terminates on or prior to the last day of such fiscal year; provided
that if such termination is by Employer without Cause (as defined in Section 4.1
below), as soon as practicable following such termination, Employer shall
transfer to Executive a number of shares of Common Stock equal to the applicable
Share Number, which shall not be subject to transfer restrictions or forfeiture.
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2.4. Additional Compensation. Executive shall further be eligible to
participate in the existing management incentive plans of Employer to the extent
such plans continue in effect (as determined in the discretion of the
Committee), and to receive such additional compensation as may be provided by
such plans from time to time or as otherwise approved by the Committee.
ARTICLE III
EXECUTIVE BENEFITS
3.1. Employer Policy. Executive shall be entitled to all executive
benefits currently offered or adopted by Employer during Executive's employment
with Employer.
3.2. Business Expenses. Employer will reimburse Executive for all
reasonably incurred business expenses, subject to the travel and expense policy
established by Employer from time to time, incurred by Executive in the
performance of Executive's duties pursuant to this Agreement, provided that
Executive furnishes to Employer adequate records and other documentary evidence
required to substantiate such expenditures.
3.3. Personal Use of Employer Aircraft. Employer will provide Executive
with personal use of any of Employer's aircraft for up to 50 flight hours per
year, provided such use does not interfere with the normal business use of the
aircraft. Executive agrees to schedule his personal use of the aircraft in
advance, upon reasonable notice to Employer.
3.4. Excise Tax Gross-Up. (a) In the event it shall be determined that any
payments or distributions by Employer to Executive or for Executive's benefit
(whether paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 3.4) ("Payments") are subject to the excise
tax imposed by Section 4999 (or any successor provisions) of the Internal
Revenue Code of 1986, as amended (the "Code"), or any interest or penalty is
incurred by Executive with respect to such excise tax (such excise tax, together
with any such interest and penalties, the "Excise Tax"), then Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that, after payment by Executive of all taxes (including any income taxes
and Excise Tax imposed on the Gross-Up Payment (and any interest and penalties
imposed with respect thereto)), Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon all such Payments; provided,
however, that, if no Excise Tax would be imposed on such Payments were the
aggregate amount of all such Payments reduced by an amount not to exceed 5% of
such aggregate amount, then Executive shall forfeit and Employer shall not be
obligated to pay the amount of such Payments (which shall not exceed 5% of such
aggregate amount) necessary to avoid imposition of the Excise Tax on such
Payments (a "Payment Reduction"), and Executive shall be entitled to designate
the particular Payments (and the amounts thereof) to be so reduced.
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(b) Subject to the provisions of Section 3.4(c), all determinations
required to be made under this Section 3.4, including whether and when such a
Gross-Up Payment or Payment Reduction is required, the amount of such Gross-Up
Payment or Payment Reduction and the assumptions to be utilized in arriving at
such determination, shall be made by Ernst & Young LLP (or its successor) (the
"Accounting Firm") which shall provide detailed supporting calculations both to
Employer and to Executive within thirty (30) business days of the receipt of
notice from Executive that there has been a Payment subject to Excise Tax, or
such earlier time as is requested by Employer. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the change of control of Employer that gives rise to the Excise Tax,
Employer shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which shall then be deemed to be the
Accounting Firm). All fees and expenses of the Accounting Firm shall be borne
solely by Employer. Any Gross-Up Payment as determined pursuant to this Section
3.4 shall be paid by Employer to Executive within ten (10) business days of the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion that failure to report the Excise Tax on
Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon Employer and Executive. As a result of the
uncertainty of the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by Employer should have been
made ("Underpayment"). In the event that Employer exhausts its remedies pursuant
to Section 3.4(c) and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred, and any such Underpayment shall be promptly paid by Employer
to Executive.
(c) Executive shall notify Employer in writing of any claim by the
Internal Revenue Service or other taxing authority that, if successful, would
require the payment by Employer of the Gross-Up Payment. Such notification shall
be given as soon as practicable but no later than five (5) days after Executive
or his representative is informed in writing of such claim and shall apprise
Employer of the nature of such claim and the date on which such claim is
requested to be paid. Executive shall not pay such claim or take any other
action with respect thereto prior to the expiration of the thirty (30) day
period following the date on which Executive gives such notice to Employer (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If Employer notifies Executive in writing prior to the
expiration of such period that it desires to contest such claim, Executive shall
(a) give Employer any information reasonably requested by Employer relating to
such claim, (b) take such action in connection with contesting such claim as
Employer shall reasonably request in writing from time to time, including
accepting legal representation with respect to such claim by an attorney
reasonably selected by Employer, (c) cooperate with Employer in good faith in
order effectively to contest such claim and (d) permit Employer to participate
in any proceedings relating to such claim; provided, however, that Employer
shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an
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after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing, Employer shall
control all proceedings taken in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of any such claim
and may, at its sole option, either direct Executive to pay the tax claimed and
xxx for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as Employer shall determine; provided, however, that if Employer directs
Executive to pay such claim and xxx for a refund, Employer shall advance the
amount of such payment to Executive, on an interest-free basis, and shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and provided, further, that any extension of the statute of
limitations relating to payment of taxes for Executive's taxable year with
respect to which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, Employer's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder, and Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by Executive of a Gross-Up Payment or an amount
advanced by Employer pursuant to Section 3.4(c), Executive becomes entitled to
receive any refund with respect to such Gross-Up Payment or claim, Executive
shall (subject to Employer's complying with the requirements of Section 3.4(c),
if applicable) promptly pay to Employer the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by Executive of an amount advanced by Employer pursuant to Section
3.4(c), a determination is made that Executive is not entitled to any refund
with respect to such claim and Employer does not notify Executive in writing of
its intent to contest such denial of refund prior to the expiration of thirty
(30) days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
(e) Employer shall be entitled to withhold and pay over to the Internal
Revenue Service or other applicable taxing authority, for the benefit of
Executive, all or any portion of any Gross-Up Payment, and Executive hereby
consents to such withholding.
ARTICLE IV
TERMINATION
4.1. For Cause. Employer may terminate Executive's employment hereunder
for "cause". For purposes of this Agreement, the term "cause" shall mean (a)
Executive is convicted of a felony involving moral turpitude, or (b) Executive,
in carrying out his duties, is guilty of (i) gross neglect or (ii) willful
misconduct resulting, in either case, in
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harm to Employer unless such act, or failure to act, was believed by Executive
in good faith to be in the best interests of Employer.
4.2. Termination by Executive. Executive may terminate this Agreement and
his employment for "Good Reason" by giving written notice to Employer within
sixty (60) days, or such longer period as may be mutually agreed to in writing
by Executive and Employer, of Executive's receipt of notice of the occurrence of
any event constituting "Good Reason," as described below:
Executive shall have "Good Reason" to terminate this Agreement and his
employment upon occurrence of any of the following events: (a) Executive is
assigned any duties or responsibilities that are inconsistent, in any material
respect, with the scope of duties and responsibilities associated with his
position and office as described in Section 1.1 above; (b) Executive suffers a
reduction in, or a material interference with, the authorities, duties or
responsibilities associated with his position and office as described in Section
1.1 above; (c) the duties of the position described in Section 1.1 change
materially from those at the date of execution of this Agreement; or (d)
Executive is required to relocate to an employment location that is more than 50
miles from his employment location on the Effective Date; provided, however,
that in the case of clauses (a) through (c) above, the event or circumstance
which is alleged to constitute Good Reason does not, directly or indirectly,
result from or relate to the consummation of the IPO. If Executive terminates
this Agreement and his employment under this Agreement for "Good Reason",
Executive shall be entitled to receive Severance Benefits pursuant to Article V.
4.3. Other Termination. This Agreement shall terminate, at the election of
Employer, upon the death, disability or legal incapacity of Executive.
ARTICLE V
SEVERANCE BENEFITS
5.1. Triggering Events. If this Agreement is terminated by Employer
without Cause, or if Executive elects to terminate this Agreement for "Good
Reason" pursuant to Section 4.2 above (each, hereinafter, a "Termination
Event"), Executive shall receive the "Severance Benefits" provided by this
Article V and all stock options and restricted stock awards then held by
Executive, pursuant to the Stock Option Plan A and the Stock Option Plan B or
otherwise, shall automatically become vested and exercisable, subject to the
other terms and conditions of the equity compensation plan of Employer under
which they were granted.
5.2. Severance Benefits. Subject to Section 10.1 below, the Severance
Benefits shall begin immediately following the date Executive incurs a
Termination Event and will continue to be payable for 24 consecutive months
after the Termination Event, in accordance with Employer's normal payroll
practices. Executive's "Severance Benefits" shall consist of the continuation of
Executive's Base Salary determined in accordance with Sections 2.1 and 2.2
above, and the continuation of any health, life, disability or other benefits
that Executive was receiving as of his last day of active employment with
Employer.
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5.3. Termination of Severance Benefits. Severance Benefits shall
immediately cease if Executive commits a violation of any of the terms of this
Agreement relating to confidentiality, non-disclosure, non-solicitation and
non-competition.
ARTICLE VI
CONFIDENTIAL INFORMATION
6.1. Confidential Information. Executive hereby acknowledges that in order
to perform his duties as an executive of Employer, he has received, and will in
the future be given access to, certain confidential, secret and proprietary
information in the form of records, data, specifications, formulas, technology,
inventions, devices, products, methods, know-how, processes, financial data,
customer and/or vendor information and practices, customer lists, cost
information, executive information and trade secrets (hereinafter, collectively,
"Confidential Information") developed and owned by Employer concerning the
business, products and/or services of Employer.
6.2. Non-Disclosure. Except as otherwise specifically provided herein,
Executive will not, directly or indirectly, disclose or utilize, or cause or
permit to be disclosed or utilized, to any person or to any entity whatsoever
any Confidential Information acquired pursuant to his employment with Employer
(whether acquired prior to or subsequent to the execution of this Agreement)
under this Agreement or otherwise.
6.3. Permitted Disclosure. Executive may utilize the Confidential
Information only to the extent reasonably necessary and required in the
discharge of his duties as an executive of Employer.
6.4. Return of Information. Executive will immediately, upon the request
of Employer, return to Employer all originals, copies or other embodiments of
any Confidential Information received under this Agreement or otherwise.
Executive will not retain, or cause or permit to be retained, any copies or
other embodiments of the materials so returned.
6.5. Non-Competition and Non-Solicitation. Executive understands and
agrees that Employer shall be entitled to protect and preserve the going concern
value of the business of Employer and its affiliates to the extent permitted by
law and that Employer would not have entered into this Agreement absent the
provisions of this Section 6.5, and Executive therefore agrees to the following:
(a) Non-Solicitation. For 24 months after termination of his employment,
Executive shall not (and shall not attempt to) (i) solicit, recruit or hire any
current or former employee of Employer or its affiliates or otherwise interfere
with or damage the relationship between Employer and its affiliates and any such
employee, (ii) solicit, interfere with or damage any relationship between
Employer or its affiliates and its customers or suppliers (or any person that
Employer has approached or has made significant plans to approach as a
prospective customer or supplier) or any governmental authority or any agent or
representative thereof or (iii) assist any person in any way to do, or attempt
to do, any of the foregoing.
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(b) Non-Competition. For five years after termination of his employment,
Executive shall not (and shall not attempt to) (i) engage in any activity or
business (whether as a stockholder, partner, member investor, lender, director,
officer, employee, agent, consultant, contractor or otherwise), or establish any
new business, within North America that is in competition, in whole or in
material part, with Employer or its affiliates, including selling goods or
services of the type sold by Employer or its affiliates during the Term (the
foregoing activities and businesses, hereinafter, "Competitive Activities") or
(ii) assist any person in any way to do, or attempt to do, any Competitive
Activities. This Section 6.5(b) shall be deemed not breached as a result of the
ownership by Executive of: (A) less than an aggregate of 5% of any class of
stock of a person engaged, directly or indirectly, in Competitive Activities,
(B) less than 10% in value of any instrument of indebtedness of a person
engaged, directly or indirectly, in Competitive Activities or (C) a person that
engages, directly or indirectly, in Competitive Activities if such Competitive
Activities account for less than 10% of such person's consolidated annual
revenues.
(c) Notwithstanding any other provision of this Agreement, it is
understood and agreed that remedies at law would be inadequate in the case of
any breach of the covenants contained in this Section. Employer shall be
entitled to equitable relief, including the remedy of specific performance, with
respect to any breach or attempted breach of such covenants.
ARTICLE VII
PROPRIETARY INTEREST
All books, records and other documents relating to the business and
customer accounts of Employer, whether prepared by Executive or otherwise coming
into his possession, shall be and remain the exclusive property of Employer and
Executive shall not, during the Term or thereafter, directly or indirectly,
assert any interest or property rights therein. Upon termination of this
Agreement, all books, records and other documents shall immediately be returned
to Employer.
ARTICLE VIII
DISABILITY
If, based upon independent medical advice by a competent medical authority
mutually and reasonably agreed upon by the parties hereto, the Board determines
that due to physical or mental illness Executive is unable to perform his
customary duties hereunder for a period in excess of (a) one hundred twenty
(120) consecutive business days, and if, within five (5) days of written notice
of the expiration of such one hundred twenty (120) day period, Executive shall
not have returned to the performance of his duties on a full-time basis, or (b)
one hundred thirty (130) business days in any consecutive twelve (12) month
period, then Employer may terminate Executive's employment hereunder. During
such one hundred twenty (120) day and one hundred thirty (130) day periods, as
the case may be, Executive shall continue to receive one
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hundred percent (100%) of his Base Salary as specified in Article II, and all
benefits as specified in Article III.
ARTICLE IX
NOTICE
All notices, requests, demands and other communications required or
permitted to be given under the terms of this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or mailed first class, postage prepaid or by registered or
certified mail as follows:
If to Employer: Pike Electric Corporation
000 Xxxx Xxx
Xx. Xxxx, XX 00000
If to Executive: J. Xxxx Xxxx
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
The parties may change the address to which notices under this Agreement shall
be sent by providing written notice to the other in the manner specified above.
ARTICLE X
MISCELLANEOUS
10.1. Code Section 409A. In light of the uncertainty surrounding the
proper application of Section 409A of the Code, Executive and Employer agree to
cooperate to make necessary amendments to this Agreement (including, without
limitation to the timing of any Severance Benefits payable pursuant to Article
V) to avoid imposition of penalties and additional taxes under Code Section
409A. It is intended that the provisions of this Agreement comply with Code
Section 409A, and all provisions of this Agreement shall be construed and
interpreted in a manner consistent with Code Section 409A. In particular, if
necessary to avoid imposition of penalties and additional taxes under Code
Section 409A, (a) the timing of Severance Benefits shall be subject to a
six-month deferral in a manner consistent with Section 409A(a)(2)(B)(i) and (b)
any annual bonuses payable to Executive shall be paid not later than the
expiration of two and one-half months from the last business day of the fiscal
year of Employer with respect to which the bonus is payable.
10.2. Delegation of Duties. Executive may not assign or delegate the
services and obligations he is required to perform under this Agreement. The
parties agree that any attempt by Executive to delegate his duties hereunder
shall be null and void.
10.3. Amendment. This Agreement may be modified or amended only by and to
the extent of the written agreement of Employer and Executive.
10.4. Successors. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of Employer.
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10.5. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto and supersedes any prior written or oral agreement between
them relating to the subject matter contained herein.
10.6. Survival. The terms of Article VI, Article VII, Article X and
Article XI shall survive the expiration or termination of this Agreement for any
reason.
10.7. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10.8. Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions hereof shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
10.9. Indemnity. Executive shall be indemnified in his position to the
fullest extent permitted or required by the laws of the State of Delaware.
10.10. Certain Definitions. For purposes of this Agreement:
(a) The term "person" means any individual, partnership, company,
corporation or other entity of any kind.
(b) The term "affiliate", with respect to any person, means any other
person that, directly or indirectly, controls, is controlled by or is under
common control with such person.
ARTICLE XI
DISPUTE RESOLUTION
11.1. Mediation. Any and all disputes arising under, pertaining to or
touching upon this Agreement or the statutory rights or obligations of either
party hereto, shall, if not settled by negotiation, be subject to non-binding
mediation under the National Rules for the Resolution of Employment Disputes of
the American Arbitration Association ("AAA") in effect on the date of the first
notice of demand for mediation, before an independent mediator selected by the
parties pursuant to Section 11.4. Notwithstanding the foregoing, both Executive
and Employer may seek preliminary judicial relief if such action is necessary to
avoid irreparable damage during the pendency of the proceedings described in
this Article XI. Any demand for mediation shall be made in writing and served
upon the other party to the dispute, by certified mail, return receipt
requested, at the business address of Employer, or at the last known residence
address of Executive, respectively. The demand shall set forth with reasonable
specificity the basis of the dispute and the relief sought. The mediation
hearing will occur at a time and place convenient to the parties in Forsyth
County, North Carolina, within thirty (30) days of the date of selection or
appointment of the mediator.
11.2. Arbitration. In the event that the dispute is not settled through
mediation, the parties shall then proceed to binding arbitration before a single
independent arbitrator selected pursuant to Section 11.4. The mediator shall not
serve as arbitrator. The
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arbitration hearing shall occur at a time and place convenient to the parties in
Forsyth County, North Carolina, within thirty (30) days of the date of selection
or appointment of the arbitrator. The arbitration shall be governed by the rules
of the AAA in effect on the date of the first notice of demand for arbitration.
The arbitrator shall issue written findings of fact and conclusions of law, and
an award, within fifteen (15) days of the date of the hearing unless the parties
otherwise agree.
11.3. Damages. In cases of breach of contract or policy, damages shall be
limited to contract damages. The arbitrator may award fees to the prevailing
party and assess costs of the arbitration to the non-prevailing party.
11.4. Selection of Mediators or Arbitrators. The parties shall select the
mediator or arbitrator from a panel list made available by the AAA. If the
parties are unable to agree to a mediator or arbitrator within ten (10) days of
receipt of a demand for mediation or arbitration, the mediator or arbitrator
will be chosen by alternatively striking from a list of five (5) mediators or
arbitrators obtained by Employer from AAA. Executive shall have the first
strike.
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IN WITNESS WHEREOF, the parties have executed this Agreement, in one or
more counterparts which, taken together, shall constitute one agreement.
EMPLOYER:
PIKE ELECTRIC CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxxx
-------------------------
EXECUTIVE:
/s/ J. Xxxx Xxxx
------------------------------
Xxxxxx Xxxx Xxxx
