AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 24th day of
September, 2008, by and between PIKE ELECTRIC CORPORATION, a Delaware corporation (“Employer”), and
XXXXXX XXXX XXXX, an individual domiciled in the State of North Carolina (“Executive”).
GENERAL
Executive is currently employed by Employer pursuant to an Employment Agreement dated as of
July 20, 2005 (the “Predecessor Agreement”). Employer and Executive have agreed to amend and
restate the Predecessor Agreement, as set forth herein.
ARTICLE I
EMPLOYMENT
EMPLOYMENT
1.1. Position. Subject to the terms and conditions of this Agreement, Employer hereby
employs Executive, and Executive hereby accepts employment, as Chief Executive Officer of Employer
commencing on the Effective Date and ending upon the termination of the Term. Executive shall
perform the duties of his position as determined by the Board of Directors of Employer (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 July
1, 2008 (the “Effective Date”) and, unless earlier terminated pursuant to Article IV, shall
continue for a period of one year (the “Initial Term”). Thereafter, the Term shall be
automatically extended for additional one-year periods (each, an “Additional Term”), subject to
either party’s right to terminate this 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
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 Eighty Thousand and No/100 ($780,000),
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, as adjusted.
2.3. Annual Bonuses. Subject to Section 10.1 below, in addition to the Base Salary
described above, Executive shall receive an annual bonus in such amounts and on such terms and
conditions as adopted or approved by the Committee from time to time.
2.4. Long-Term Incentive Plan. Subject to Section 10.1 below, Executive shall be
entitled to participate in a long-term incentive plan of Employer in such amounts and on such terms
and conditions as adopted or approved by the Committee from time to time.
2.5. Additional Compensation. Executive shall further be eligible to participate in
any other management incentive plans of Employer to the extent such plans are adopted or 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
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.
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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.
(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.
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(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 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.
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ARTICLE IV
TERMINATION
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 material 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; provided that, with respect to (b) above, Executive shall have 30 days after delivery by
Employer of a written explanation in reasonable detail of the circumstances that are claimed to
constitute Cause hereunder within which to cure and eliminate the existence of such circumstances,
unless such circumstances are not capable of being cured in which case no cure period need be
provided.
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 but not to exceed
ninety (90) days, 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, adverse 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, adverse 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 in a materially adverse manner 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 that Employer shall have 30 days after delivery by Executive of a written explanation in
reasonable detail of the circumstances that are claimed to constitute Good Reason within which to
cure and eliminate the existence of such circumstances, unless such circumstances are not capable
of being cured in which case no cure period need be provided. 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 (as defined in Article VIII) or legal incapacity of Executive. In such
event Executive or Executive’s heirs shall receive all benefits to which Executive is then
entitled. All equity compensation awards then held by Executive pursuant to Employer’s
compensation plans 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.
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ARTICLE V
SEVERANCE BENEFITS
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, a “Termination Event”), Executive shall receive the “Severance Benefits” provided by this
Article V and all unvested equity compensation awards then held by Executive, pursuant to
Employer’s compensation plans, shall automatically become vested and exercisable, subject to the
other terms and conditions of the equity compensation plans 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, to the
extent permitted under the applicable plans, continued participation in the health, life,
disability and other benefits that Executive was receiving as of his last day of active employment
with Employer. If Executive’s continued participation in the health plan at active employee rates
for this 24-month period would be discriminatory under Code Section 105(h), then Executive shall be
entitled to participate in the health plan for this 24-month period only if he pays the full cost
of coverage each month, and Employer shall pay Executive each month for 24 months the difference
between the full cost of the health coverage Executive had in place as of the date of the
Termination Event and the cost Executive was paying as of the date of the Termination Event.
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
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 (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.
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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.
(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, “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.
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ARTICLE VII
PROPRIETARY INTEREST
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
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 has a Disability, then Employer may terminate Executive’s employment hereunder.
For purposes of this Agreement, the term “Disability” shall mean 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. 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 hundred percent (100%) of his Base Salary as
specified in Article II, and all benefits as specified in Article III.
ARTICLE IX
NOTICE
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:
If to Executive:
J. Xxxx Xxxx
[•]
[•]
[•]
[•]
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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
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.
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.
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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
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 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.
[Signature page(s) follow on next page]
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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:
| By: | /s/ Xxxxx X. Xxx | |||
| Name: | Xxxxx X. Xxx | |||
| Title: | General Counsel & Vice President of Risk Management | |||
EXECUTIVE:
| By: | /s/ J. Xxxx Xxxx | |||
| Name: | J. Xxxx Xxxx | |||
