EMPLOYMENT AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (“Agreement”), effective this 8th day of June, 2009 (the “Effective
Date”), is entered into by and between (“Executive”) and Pike Electric
Corporation (the “Employer” and, collectively with its successors, designees and past, present and
future operating companies, divisions, subsidiaries and affiliates, the “Company”).
WHEREAS, Executive has heretofore been employed by Pike Electric, Inc., a subsidiary of the
Employer, in a position of senior management up to and through the Effective Date, pursuant to a
contract of employment dated , 200 (the “Previous Employment Agreement”), and
desires to be employed by the Employer on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Employer desires to retain the services of Employee on the terms and subject to
the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and
agreements set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment. Subject to the terms and conditions of this Agreement, the Employer
agrees to employ Executive, and Executive agrees to be employed by the Employer, as of the
Effective Date pursuant to the terms herein. This Agreement supersedes in its entirety the
Previous Employment Agreement, which shall be null and void as of the Effective Date, and Pike
Electric, Inc. joins in this Agreement for the limited purpose of confirming with the Executive
that the Prior Employment Agreement is null and void as of the Effective Date.
2. Position. During the period of his employment hereunder, Executive agrees to serve
the Company, and the Employer shall employ Executive, as , or in such other
executive capacity or capacities, at the same level of seniority, as may be determined from time to
time by the Chief Executive Officer of the Employer (the “CEO”). If appointed or elected,
Executive also shall serve as an officer, director and/or manager of one or more of the Employer’s
subsidiaries and affiliated companies in such capacity or capacities as may be determined from time
to time by the CEO.
3. At-Will Employment and Duties.
(a) Executive and the Employer agree that Executive’s employment by the Employer hereunder
will be at-will (as defined under applicable law), and may be terminated at any time, for any
reason, at the option of either party, subject to the provisions of this Agreement and with the
consequences herein provided.
(b) Duties. During the period of his employment hereunder and except for illness,
reasonable vacation periods, and reasonable leaves of absence, Executive shall in good faith devote
all of his business time, attention, skill and efforts to the business and affairs of the Company.
Executive’s duties shall be performed under the direction and supervision of the CEO. The
foregoing shall not be construed as prohibiting Executive from serving on corporate, civic or
charitable boards or committees or making personal investments, so long as such activities do not
materially interfere with the performance of Executive’s obligations to the Company as set forth in
this Agreement.
4. Salary; Bonus; Reimbursement of Expenses; Other Benefits.
(a) Salary. In consideration of the services to be rendered by Executive pursuant to
this Agreement, the Company shall pay, or cause to be paid, to Employee a base salary (the “Base
Salary”) as established by or pursuant to authority granted by the Board of Directors of the
Employer (the “Board”). Executive’s initial Base Salary shall be the base salary paid by the
Company immediately prior to the Effective Date. The Base Salary shall be reviewed annually by or
pursuant to authority granted by the Board in connection with its annual review of executive
compensation to determine if such Base Salary should be increased for the following year in
recognition of services to the Company. The Base Salary shall be payable at such intervals in
conformity with the Company’s prevailing practice as such practice shall be established or modified
from time to time.
(b) Bonuses; Additional Compensation. Executive will be eligible to receive bonuses
and awards of equity and non-equity compensation and to participate in annual and long-term
compensation plans of the Company in accordance with any plan or decision that the Board, or any
committee or other person authorized by the Board, may in its sole discretion determine from time
to time.
(c) Reimbursement of Expenses. Executive shall be paid or reimbursed by the Company,
in accordance with and subject to the Company’s general expense reimbursement policies and
practices, for all reasonable travel and other business expenses incurred by Executive in
performing his obligations under this Agreement.
(d) Other Benefits. During the period of employment under this Agreement, Executive
shall be entitled to participate in all other benefits of employment generally available to other
executives of the Company and those benefits for which such persons are or shall become eligible,
when and as he becomes eligible therefore.
5. Termination of Employment.
(a) Termination by the Employer for Cause. The Employer may terminate Executive’s
employment under this Agreement at any time for “Cause” (as hereinafter defined) whereupon the
Employer shall have no further obligation hereunder to Executive, except for payment of amounts of
Base Salary accrued through the termination date. For purposes of this agreement, “Cause” shall
mean: (i) the continued willful failure by Executive to substantially perform his duties with the
Company, (ii) the willful engaging by Executive in gross misconduct
materially and demonstrably injurious to the Company or (iii) Executive’s material breach of
Sections 3, 6 or 7 of this Agreement; provided, that with respect to any breach that is curable by
Executive, as determined by the Board in good faith, the Employer has provided Executive written
notice of the material breach and Executive has not cured such breach, as determined by the Board
in good faith, within fifteen (15) days following the date the Employer provides such notice.
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(b) Termination as a Result of Executive’s Death or Disability. Executive’s
employment hereunder shall terminate automatically upon Executive’s Death and may be terminated by
the Employer upon Executive’s “Disability” (as hereinafter defined). If Executive’s employment
hereunder is terminated by reason of Executive’s death or Disability, Executive’s (or Executive’s
estate’s) right to benefits under this Agreement will terminate as of the date of such termination
and all of the Employer’s obligations hereunder shall immediately cease and terminate, except that
Executive or Executive’s estate, as the case may be, will be entitled to receive accrued Base
Salary and benefits through the date of termination. As used herein, Executive’s Disability shall
have the meaning set forth in any long-term disability plan in which Executive participates, and in
the absence thereof shall mean the determination in good faith by the Board that, due to physical
or mental illness, Executive shall have failed to perform his duties on a full-time basis hereunder
for one hundred eighty (180) consecutive days and shall not have returned to the performance of his
duties hereunder on a full-time basis before the end of such period. If Disability has occurred,
termination of Executive’s employment hereunder shall occur within thirty (30) days after written
notice of such termination is given (which notice may be given before the end of the one hundred
eighty (180) day period described above so as to cause termination of employment to occur as early
as the last day of such period).
(c) Termination by Executive for Good Reason or by the Employer other than as a Result of
Executive’s Death or Disability or for Cause.
(i) Executive may terminate Executive’s employment hereunder for “Good Reason” (as
hereinafter defined), if Good Reason exists, upon at least five (5) days prior written
notice to the Employer, and the Employer may terminate Executive’s employment hereunder for
any reason or for no reason, other than as a result of Executive’s death or Disability or
for Cause, upon at least five (5) days prior written notice to Executive, in each case with
the consequences set forth in this Section 5(c).
(ii) If Executive’s employment hereunder is terminated by Executive for Good Reason or
by the Employer other than by reason of Executive’s death or Disability and other than for
Cause, then, subject to Executive abiding by the covenants set forth in Section 6, Executive
shall be entitled to the following benefits:
1) Cash severance payments equal in the aggregate to twelve (12) months of
Executive’s annual Base Salary at the time of termination, payable in twelve (12)
equal monthly installments beginning at the end of the first full month following
termination of employment.
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2) Continuation of Executive’s medical and health insurance benefits for a
period equal to the lesser of (i) twelve (12) months, or (ii) the period ending on
the date Executive first becomes entitled to medical and health insurance benefits
under any plan maintained by any person for whom Executive provides services as an
employee or otherwise, except that (A) in the case of the group health plan, if
Executive is no longer eligible to participate in the plan, the Employer may instead
pay or reimburse Executive for the cost of COBRA coverage (and upon request
Executive agrees to elect such coverage), and (B) if in the judgment of the Employer
it is impracticable or unduly burdensome to provide any other particular benefit to
Executive because of the termination of Executive’s employment, or because Executive
is no longer eligible, or because the Company has decided not to continue such
benefit for its employees generally, the Employer may instead substitute a
comparable benefit at no greater cost to the Company, or may instead pay Executive
an amount in cash in lieu of such benefit that is equal to the cost to the Company
of providing such benefit to Executive immediately prior to such termination.
(iii) For purposes of this Agreement, “Good Reason” shall mean: (a) a material
reduction (without Executive’s express written consent) in Executive’s title or
responsibilities; (b) the requirement that Executive relocate to an employment location that
is more than 50 miles from his employment location on the Effective Date; or (c) the
Employer’s material breach (without Executive’s express written consent) of Sections 2 or 4
of this Agreement; provided, that Executive has provided the Employer written notice of the
material breach and the Employer has not cured such breach within fifteen (15) days
following the date Executive provides such notice. If the Employer thereafter intentionally
repeats the breach it previously cured, such breach shall no longer be deemed curable.
(d) Termination by Executive other than for Good Reason. Executive may terminate his
employment with the Employer other than for Good Reason upon thirty (30) days prior written notice
to the Employer, after which the Employer shall have no further obligation hereunder to Executive,
except for payment of amounts of Base Salary and other benefits accrued through the termination
date. If Executive so notifies the Employer of such termination, the Employer shall have the right
to accelerate the effective date of such termination to any date after the Employer’s receipt of
such notice, but such acceleration will not be deemed to constitute a termination of Executive’s
employment by the Employer without Cause, and the consequences of such termination will continue to
be governed by this subsection (d).
(e) Waiver and Release. In consideration for and as a condition to the payments and
benefits provided and to be provided under this Agreement other than those provided under Section 9
(indemnification), Executive agrees that Executive will, within 30 days after the termination of
Executive’s employment hereunder, deliver to the Employer a fully executed release agreement
substantially in a form then used by and agreeable to the Employer and which shall fully and
irrevocably release and discharge the Company, its directors, officers, and employees from any and
all claims, charges, complaints, liabilities of any kind, known or unknown, owed to Executive,
other than any rights Executive may have under the terms of this
Agreement that survive such termination of employment and other than any vested rights of
Executive under any Company’s employee benefit plans or programs that, by their terms, survive or
are unaffected by such termination of employment.
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6. Certain Covenants by Executive.
(a) Confidential Information. Executive acknowledges that in his employment hereunder
he will occupy a position of trust and confidence. Executive shall not, except in the course of
the good faith performance of his duties hereunder or as required by applicable law, without
limitation in time or until such information shall have become public other than by Executive’s
unauthorized disclosure, disclose to others or use, whether directly or indirectly, any
Confidential Information regarding the Company, its subsidiaries and affiliates. “Confidential
Information” shall mean information about the Company or its clients or customers that was learned
by Executive in the course of his employment by the Employer or its subsidiaries, including
(without limitation) any proprietary knowledge, trade secrets, data, formulae, information and
client and customer lists and all papers, resumes, and records (including computer records) of the
documents containing such Confidential Information, but excludes information (i) which is in the
public domain through no unauthorized act or omission of Executive; or (ii) which becomes available
to Executive on a non-confidential basis from a source other than the Company or its affiliates
without breach of such source’s confidentiality or non-disclosure obligations to the Company or any
affiliate. Executive agrees to deliver or return to the Company, at the Company’s request at any
time or upon termination or expiration of his employment or as soon thereafter as possible, (i) all
documents, computer tapes and disks, records, lists, data, drawings, prints, notes and written
information (and all copies thereof) furnished by the Company or prepared by Executive during the
term of his employment by the Employer or its subsidiaries and (ii) all notebooks and other data
relating to research or experiments or other work conducted by Executive in the scope of
employment. Upon the Termination Date, Executive shall, as soon as possible but no later than two
(2) days from the Termination Date, surrender to the Employer all Confidential Information in
Executive’s possession and return to the Employer all Company property in Executive’s possession or
control, including but not limited to, all paper records and documents, computer disks and access
cards and keys to any Company facilities.
(b) Non-Competition. During the period of Executive’s employment hereunder and for a
period of twelve (12) months after the date of termination of his employment or for the period of
one additional year thereafter if so elected by the Employer pursuant to Section 6(d) below,
Executive shall not, directly or indirectly, in the “Restricted Territory” (as hereinafter
defined), without the prior written consent of the Employer, provide consultative services or
otherwise provide services to (whether as an employee or a consultant, with or without pay) or,
own, manage, operate, join, control, participate in, or be connected with (as a stockholder,
partner, or otherwise), any business, individual, partner, firm, corporation, or other entity that
is then a competitor of the Company (each such competitor a “Competitor of the Company”);
provided, however, that the “beneficial ownership” by Executive, either
individually or as a member of a “group,” as such terms are used in Rule 13d of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of not
more than five percent (5%) of the voting stock of any publicly held corporation
shall not alone constitute a violation of this Agreement. For purposes of this Agreement,
“Restricted Territory” shall mean: (i) the State of North Carolina, (ii) the other contiguous
states of the United States of America, and (iii) any other jurisdiction in which the Company is
doing or does business during Executive’s employment by any Company. Executive and the Employer
acknowledge and agree that the business of the Company extends throughout the contiguous states of
the United States of America.
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(c) Non-Solicitation of Customer and Suppliers. During the period of Executive’s
employment hereunder and for a period of twelve (12) months after the date of termination of
Executive’s employment hereunder, or for the period of one additional year thereafter if so elected
by the Employer pursuant to Section 6(d) below, Executive shall not, directly or indirectly,
influence or attempt to influence customers or suppliers of the Company to divert any of their
business to any Competitor of the Company.
(d) Extension of Periods of Non-Competition and Non-Solicitation. At the sole
election of the Employer, it may extend the periods of non-competition and non-solicitation as set
forth in Paragraphs (b) and (d) of this Section for an additional twelve (12) months (to two years
in total) for the following consideration to the Executive: in the case of termination under
Section 5 (a) and (d) by providing severance benefits as set forth in Section 5(c)(i), and in the
case of termination under Section 5(c) by providing severance benefits as set forth therein for an
additional twelve (12) month period.
(e) Non-Solicitation of Employees. Executive recognizes that he possesses and will
posses Confidential Information about other employees of the Company relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal relationships with
customers of the Company. Executive recognizes that the information he possesses and will possess
about these other employees is not generally known, is of substantial value to the Company in
developing its business and in securing and retaining customers, and has been and will be acquired
by him because of his business position with the Company. Executive agrees that, during the period
of Executive’s employment hereunder and for a period of one (1) year thereafter, he will not,
directly or indirectly, solicit, recruit, induce or encourage or attempt to solicit, recruit,
induce, or encourage any employee of the Company (i) for the purpose of being employed by him or by
any Competitor of the Company on whose behalf he is acting as an agent, representative or employee
or (ii) to terminate his or her employment or any other relationship with the Company. Executive
also agrees that Executive will not convey any Confidential Information or trade secrets about
other employees of the Company to any other person.
(f) Post-Termination Covenants by Executive.
(i) Upon the termination of Executive’s employment hereunder, regardless of (A) the
date, cause, or manner of the Termination of Employment, (B) whether the Termination of
Employment is with or without Cause or is a result of Executive’s resignation, or
(C) whether the Company provides severance benefits to Executive under this Agreement (the
“Termination of Employment”), Executive shall resign and does resign from all positions as
an officer of the Company and from any other
positions with the Company, with such resignations to be effective upon the date of the
Termination of Employment.
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(ii) From and after the Termination of Employment, Executive agrees not to make any
statements to the Company’s employees, customers, vendors, or suppliers or to any public or
media source, whether written or oral, regarding Executive’s employment hereunder or
termination from the Employer’s employment, except as may be approved in writing by an
executive officer of the Employer in advance. Executive further agrees not to make any
statement (including to any media source, or to the Company’s suppliers, customers or
employees) or take any action that would disrupt, impair, embarrass, harm or affect
adversely the Company or any of the employees, officers, directors, or customers of the
Company or place the Company or such individuals in any negative light.
(iii) From and after the Termination of Employment, Executive agrees to cooperate with
and provide assistance to the Company and its legal counsel in connection with any
litigation (including arbitration or administrative hearings) or investigation affecting the
Company, in which, in the reasonable judgment of the Company’s counsel, Executive’s
assistance or cooperation is needed. Executive shall, when requested by the Company,
provide testimony or other assistance and shall travel at the Company’s request in order to
fulfill this obligation. In connection with such litigation or investigation, the Company
shall attempt to accommodate Executive’s schedule, shall reimburse Executive (unless
prohibited by law) for any actual loss of wages in connection therewith, shall provide
Executive with reasonable notice in advance of the times in which Executive’s cooperation or
assistance is needed, and shall reimburse Executive for any reasonable expenses incurred in
connection with such matters.
(iv) Upon the Termination of Employment, Executive shall promptly return to the
Company, at the Employer’s principal office or such other locations as the Employer may
specify, all property of the Company in Executive’s possession or control.
(g) Injunctive Relief. It is expressly agreed that the Company will or would suffer
irreparable injury, for which a remedy in damages would be inadequate, if Executive were to violate
any of the provisions of this Section 6 and that the Company would by reason of such violation be
entitled to injunctive relief in a court of appropriate jurisdiction, and Executive further
consents and stipulates to the entry of such injunctive relief in such a court prohibiting
Executive from so violating Section 6 of this Agreement, in addition to any and all damages or
other remedies to which the Employer would be entitled at law or in equity.
(h) Executive Acknowledgement. Executive acknowledges and agrees that (i) the
restrictive covenants in this Section 6 are reasonable in time, territory and scope, and in all
other respects and (ii) should any part or provision of any covenant be held invalid, void or
unenforceable in any court of competent jurisdiction, such invalidity, voidness, or
unenforceability shall not render invalid, void or unenforceable any other part or provision of
this Agreement. The restrictive covenants contained herein shall be construed as agreements
independent of any other provision in this Agreement and the existence of any claim or cause
of action of Executive against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of this restrictive covenant.
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(i) Survival of Provisions. The obligations contained in this Section 6 shall survive
the termination or expiration of Executive’s employment hereunder and shall be fully enforceable
thereafter.
7. No Conflict. Executive represents and warrants that Executive is not subject to
any agreement, instrument, order, judgment or decree of any kind, or any other restrictive
agreement of any character, which would prevent Executive from entering into this Agreement or
would conflict with the performance of Executive’s duties pursuant to this Agreement. Executive
represents and warrants that Executive will not engage in any activity, which would conflict with
the performance of Executive’s duties pursuant to this Agreement.
8. Notices. Any notice, requests, demands and other communications to be given to a
party in connection with this Agreement shall be in writing addressed to such party at such party’s
“Notice Address,” which shall initially be as set forth below:
| If to the Company: | Pike Electric Corporation | |||||
| X.X. Xxx 000 | ||||||
| 000 Xxxx Xxx | ||||||
| Xxxxx Xxxx, XX 00000 | ||||||
| Attn: Chief Legal Officer | ||||||
| If to Executive: | ||||||
A party’s Notice Address may be changed or supplemented from time to time by such party by
notice thereof to the other party as herein provided. Any such notice shall be deemed effectively
given to and received by a party on the first to occur of (a) the date on which such notice is
actually delivered (whether by mail, courier, hand delivery, electronic or facsimile transmission
or otherwise) to such party’s Notice Address and addressed to such party, if such delivery occurs
on a business day, or if such delivery occurs on a day which is not a business day, then on the
next business day after the date of such delivery, or (b) the date on which such notice is actually
received by such party (or, in the case of a party that is not an individual, actually received by
the individual designated in the Notice Address of such party). For purposes of the preceding
sentence, a “business day” is any day other than a Saturday, Sunday or U.S. federal public legal
holiday.
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9. Indemnification.
(a) General. Subject to the limitations set forth in this Section 9, the Employer
shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, Executive if Executive was or is made or is
threatened to be made a party to or is otherwise involved in any pending, threatened or
completed action, suit, arbitration, alternative dispute resolution proceeding, investigation,
administrative hearing, or other proceeding, whether by or in the right of the Employer, any other
Company, or any other person or entity, whether civil, criminal, administrative or investigative (a
“Proceeding”) by reason of the fact that Executive is or was a director, officer, employee or agent
of Employer or is or was serving at the request of the Employer as a director, officer, member,
employee or agent of any other Company or other enterprise, including service with respect to
employee benefit plans, against all cost, expense, liability and loss (including without
limitation, attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by Executive or on Executive’s behalf in
connection with any Proceeding and any appeal therefrom. Executive’s rights under this Section 9
shall continue after Executive has ceased acting as a director, officer, member, employee or agent
of a Company and shall inure to the benefit of the heirs, executors and administrators of
Executive. The Employer’s obligation to provide the indemnification set forth in this Section 9(a)
shall be subject to Executive having acted in good faith and in a manner Executive reasonably
believed to be in or not opposed to the best interests of any Company, and, with respect to any
criminal action or proceeding, having had no reasonable cause to believe Executive’s conduct was
unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
Executive did not act in good faith and in a manner which Executive reasonably believed to be in or
not opposed to the best interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that Executive’s conduct was unlawful.
(b) Advancement of Expenses. Subject to the limitations set forth in this Section 9,
the Employer shall pay the reasonable expenses (including reasonable attorneys’ fees) incurred by
Executive in defending any Proceeding in advance of its final disposition; provided, however, that
such advancement of expenses shall be made only upon receipt of an undertaking by Executive, in a
form approved by the Employer, to repay all amounts advanced if it shall ultimately be determined
that Executive is not entitled to be indemnified therefor. Executive agrees to reimburse the
Employer for all expenses advanced under this Section 9 in the event and only to the extent it
shall ultimately be determined by a final adjudication that Executive is not entitled to be
indemnified by the Employer for such expenses.
(c) Claims for Indemnification or Advancement; Determination of Eligibility.
(i) Any claim by Executive for indemnification or advancement of expenses under this
Agreement shall be made in a writing delivered to the Employer, setting forth in reasonable
detail the basis for such indemnification or advancement and the amount requested, and
accompanied by appropriate documentation to support the amount so requested (or, in the case
of advancement of expenses to be incurred, the basis on which such amount is to be
determined). A claim for advancement may include future expenses reasonably expected to be
incurred, provided they are generally described in the claim, and provided that the Employer
shall not be required to advance particular expenses covered by the claim until it has
received appropriate substantiation that those expenses have been incurred and are
appropriately included within the advances approved by the Employer pursuant to this Section
9(c).
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(ii) Promptly upon its receipt of a written claim for advancement of expenses to which
Executive is entitled hereunder, and within sixty days after its receipt of a written claim
for indemnity to which Executive is entitled hereunder, the Employer shall pay such
advancement (and any future related submissions for advancement of expenses as they are
incurred) or such claim for indemnity in full to or as directed by Executive. If and to the
extent it is required by law that the Employer make any particular determination as to
Executive’s eligibility to receive such advancements or indemnity, or whether Executive has
met the standards set forth in Section 9(a) hereof, the Employer shall make such
determination as promptly as practicable in good faith and in accordance with such
requirements of law, and in any event within sixty days after its receipt of the claim from
Executive. In the event that the Employer fails to make such determination as to
Executive’s eligibility, or makes a determination that Executive is ineligible for
indemnification or advancement of expenses hereunder, within such sixty day period, then
Executive may seek such determination from a court of competent jurisdiction. In any such
proceeding, the Employer shall have the burden of proving that Executive was not entitled to
the requested indemnification or advancement of expenses, and any prior determination by the
Employer to the contrary shall be to no effect and shall not be given any weight by the
court, it being the intention of the parties that any determination by the court as to
Executive’s eligibility for and entitlement to indemnification or advancement of expenses
hereunder shall be made de novo based upon the terms of this Agreement and the evidence
presented to such court.
(d) Limitations on Claims. In addition to the limitations on indemnification set
forth in Section 9(a) above, the Employer shall not be obligated pursuant to this Agreement:
(i) To indemnify or advance expenses to Executive with respect to a Proceeding
initiated by Executive, except (i) for Proceedings authorized or consented to by the Board;
or (ii) in the event a claim for indemnification or payment of expenses (including
attorneys’ fees) made under this Agreement is not paid in full within sixty days after a
written claim therefor has been received by the Employer, Executive may file suit to recover
the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to
be paid the expense of prosecuting such claim, including attorneys’ fees. In any such
action, the Employer shall have the burden of proving that Executive was not entitled to the
requested indemnification or payment of expenses under applicable law or this Agreement.
(ii) To indemnify Executive for any expenses incurred by Executive with respect to any
Proceeding instituted by Executive to enforce or interpret this Agreement, unless Executive
is successful in establishing Executive’s right to indemnification in such Proceeding, in
whole or in part; provided, however, that nothing in this Section 9(d)(ii) is intended to
limit the Employer’s obligation with respect to the advancement of expenses to Executive in
connection with any Proceeding instituted by Executive to enforce or interpret this
Agreement, as provided in Section 9(c) above.
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(iii) To indemnify Executive in connection with proceedings or claims involving the
enforcement of the provisions of this Agreement (other than as otherwise specifically
provided for in this Section 9) or any other employment, severance or compensation plan or
agreement that Executive may be a party to, or beneficiary of, with the Employer or any
other Company.
(iv) To indemnify Executive on account of any proceeding with respect to which final
judgment is rendered against Executive for payment or an accounting of profits arising from
the purchase or sale by Executive of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, any similar successor statute, or similar
provisions of state statutory law or common law.
(e) Non-Exclusivity of Rights. The right conferred on Executive by this Section 9
shall not be exclusive of any other rights which Executive may have or hereafter acquire under any
statute, provision of the Employer’s certificate of incorporation or bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, or under any insurance maintained by the
Employer; but such rights in the aggregate shall not entitle Executive to duplicative multiple
recoveries. No amendment or alteration of the Employer’s Certificate of Incorporation or Bylaws or
any other agreement shall adversely affect the rights provided to Executive under this Section 9.
(f) Savings Clause. If any provision or provisions of this Agreement shall be
invalidated on any ground by any court of competent jurisdiction, then the Employer shall
nevertheless indemnify Executive as to costs, charges and expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by or in the right of
the Employer, to the full extent permitted by any applicable portion of this Agreement that shall
not have been invalidated and to the full extent permitted by applicable law.
10. Dispute Resolution.
(a) Any dispute between Executive and the Company arising out of this Agreement or the
performance or nonperformance hereof (except with respect to Section 9), shall, upon the demand of
either Executive or the Employer, be settled by binding arbitration in accordance with the National
Rules for the Resolution of Employment Disputes of the American Arbitration Association as in
effect at the time the arbitration is commenced and the provisions of this subsection:
(i) The arbitration shall be conducted in Winston-Salem, North Carolina by a panel of
three impartial arbitrators selected in accordance with such rules, unless the parties shall
hereafter mutually agree in writing to have the arbitration conducted by a single
arbitrator.
(ii) In conducting the arbitration and rendering their award, the arbitrators shall
give effect to the terms of this Agreement, including the choice of applicable law, shall
give effect to any other agreement of the parties relating to the conduct of the
arbitration, and shall give effect to applicable statutes of limitations.
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(iii) The costs of the arbitration, including the fees and expenses of the arbitrators
and of the American Arbitration Association, shall be allocated to such parties as, and in
such proportions as, the arbitrators shall determine to be just and equitable, which
determination shall be set forth in the award.
(iv) Judgment upon the award of the arbitrators may be entered by any court of
competent jurisdiction.
(b) Nothing in this Section 10 shall preclude any party from applying to a court of competent
jurisdiction for, and obtaining if warranted, preliminary or ancillary relief pending the conduct
of such arbitration, or an order to compel the arbitration provided for herein.
(c) Any claim arising out of Section 9, including a claim by Executive for indemnification or
advancement of expenses thereunder, shall be brought before the Court of Chancery of the State of
Delaware, which shall have exclusive jurisdiction with respect thereto, and Executive hereby
submits to the personal jurisdiction of and venue in such court in connection with any claim or
dispute arising out of Section 9.
11. Assignment; Successors. This Agreement is personal in its nature and neither of
the parties hereto shall, without the consent of the other, assign or transfer this Agreement or
any rights or obligations hereunder; provided that, this Agreement shall be binding upon and,
subject to the provisions hereof, inure to the benefit of any successor of the Employer and such
successor shall be deemed substituted for Employer under the terms of this Agreement; but any such
substitution shall not relieve Employer of any of its obligations under this Agreement. As used in
this Agreement, the term “successor” shall include any person, firm, corporation, or like business
entity which at any time, whether by merger, purchase or otherwise, acquires all or a controlling
interest in the assets or business of Employer.
12. Governing Law. This Agreement and the legal relations thus created between the
parties hereto shall be governed by and construed under and in accordance with the laws of the
State of North Carolina without regard to its choice of law or conflict of law principles;
provided, that all matters with respect to Section 9 shall be governed by and construed
under and in accordance with the laws of the State of Delaware.
13. Withholding. The Company shall make such deductions and withhold such amounts
from each payment made to Executive hereunder as may be required from time to time by law,
governmental regulation or order.
14. Headings. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose.
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15. Waiver; Modification. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance
with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times. This Agreement shall not be modified in any
respect except by a writing executed by each party hereto.
16. Severability. The parties have entered into this Agreement for the purposes
herein expressed, with the intention that this Agreement be given full effect to carry out such
purposes. Therefore, consistent with the effectuation of the purposes hereof, the invalidity or
unenforceability of any provision hereof or part thereof shall not affect the validity or
enforceability of any other provision hereof or any other part of such provision.
17. Entire Agreement; Effect on Certain Prior Agreements. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter hereof and supersedes
any prior agreements between them with respect to the subject matter hereof, including all prior
employment, retention, severance or related agreements between Executive and any Company including
without limitation the Previous Employment Agreement. Without limiting the generality of the
foregoing, the obligations under this Agreement with respect to any termination of employment of
Executive, for whatever reason, supersede any severance or related obligations of the Company in
any policy, plan or practice of the Company or any agreement between Executive and the Company.
18. Counterparts. This Agreement may be executed by the parties hereto in multiple
counterparts and shall be effective as of the Effective Date when each party shall have executed
and delivered a counterpart hereof, whether or not the same counterpart is executed and delivered
by each party. When so executed and delivered, each such counterpart shall be deemed an original
and all such counterparts shall be deemed one and the same document. Transmission of images of
signed signature pages by facsimile, e-mail or other electronic means shall have the same effect as
the delivery in person of manually signed documents.
19. Compliance with Section 409A. This Agreement is intended to comply with
Section 409A of Internal Revenue Code of 1986, as amended (“Section 409A”), to the extent
applicable. Notwithstanding any provision herein to the contrary, this Agreement shall be
interpreted, operated and administered consistent with this intent. Each separate installment
under this Agreement shall be treated as a separate payment for purposes of determining whether
such payment is subject to or exempt from compliance with the requirements of Section 409A. In
addition, in the event that Executive is a “specified employee” within the meaning of Section 409A
(as determined in accordance with the methodology established by the Employer as in effect on the
date of termination of Executive’s employment hereunder), any payment or benefits hereunder that
are nonqualified deferred compensation subject to the requirements of Section 409A shall be
provided to Executive no earlier than six (6) months after the date of Executive’s “separation from
service” within the meaning of Section 409A.
[signatures follow on next page]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer, and Executive has hereunto signed this Agreement, as of the date first above
written.
| “Company”: | ||||||||
| PIKE ELECTRIC CORPORATION | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| “Executive”: | ||||||||
| Name: | ||||||||
| The undersigned joins in this Agreement for the limited purpose of confirming with the Executive that the Prior Employment Agreement is no longer in effect, as set forth in Section 1. | ||||||||
| PIKE ELECTRIC, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
