SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Separation Agreement”) is made and entered
into by and between Pike Electric, Inc. (the “Company”), a North Carolina corporation and Xxxx X.
Xxxxxxx, an individual domiciled in the State of North Carolina (the “Executive” and, together with
the Company, the “Parties”), this the 7th day of September, 2007.
Statement of Purpose
Whereas, Executive has been employed by the Company as its Vice President and Chief
Information Officer since December 1, 2006 under an employment agreement reduced to writing between
Executive and the Company dated November 27, 2006 (the “Employment Agreement”); and
Whereas, for sound business reasons affecting, and in the best interest of, both
Executive and the Company, Executive proposes to submit his resignation as September 7, 2007 from
employment and all officer positions with the Company; and
Whereas, the Company and Executive do not anticipate that there will be any disputes
between them or legal claims arising out of Executive’s separation from the Company, but
nevertheless desire to ensure a completely amicable parting and wish to settle fully and finally
any and all differences and claims that might arise out of Executive’s employment with the Company
and the cessation of that employment;
Now, therefore, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
1. Resignation. Executive resigns from his employment with the Company and all
offices and positions held with the Company and all affiliates, including but not limited to his
position as Vice President and Chief Information Officer of the Company, contemporaneously with the
execution of this Separation Agreement, the effective date of such resignations being September 7,
2007 (the “Separation Date”).
2. Continued Pay. The Company agrees to provide Executive with periodic cash salary
payments equal in the aggregate to $325,000, or twelve (12) months of Executive’s annual base
salary under his Employment Agreement as of the Separation Date, payable in twelve (12) equal
monthly installments in accordance with the Company’s ordinary payroll practices. Payments shall
be calculated commencing with the Company pay period beginning Monday, September 7, 2007. Each
monthly installment treated as a separate payment for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”).
All payments by the Company under this Section 2 and all benefits provided by the Company as
set forth in Section 3 are conditioned upon (a) Executive’s providing, agreeing to comply with and
in fact fully complying with the General Release set forth in Section 8 below, (b) such General
Release not being revoked or breached and (c) Executive’s full compliance with the post-employment
restrictions of Sections 5 and 7 below. In the event such General Release in this Separation
Agreement is revoked or breached by Executive or any successor, Executive agrees (a) that the
Company shall have no further obligations to make payments or provide benefits to him or on his
behalf and (b) to reimburse the Company for any and all payments made by the Company to Executive
or on his behalf hereunder; provided that in the event of the death or disability of Executive, the
Company shall make the payments
provided hereunder to Executive’s estate or guardian, as appropriate, so long as the General
Release remains in effect and is not revoked or breached by Executive or such successor persons.
3. Continued Benefits. The Company agrees to provide insurance coverage at the same
benefit level to which Executive was entitled as of the Separation Date from the Separation Date up
to and including September 7, 2008; provided, however, that any group health, life or accident
insurance coverage shall cease should Executive become employed by an organization providing group
health, life or accident insurance during such period.
4. No Other Compensation or Benefits. Executive acknowledges and agrees that
Executive was awarded certain equity compensation pursuant Section 4(b) of the Employment Agreement
(the “Equity Compensation”), under the terms of the Employment Agreement none of the Equity
Compensation has or will have vested as of the Separation Date and, consequently, all of the Equity
Compensation shall be forfeited concurrent with the execution of this Separation Agreement.
Executive further acknowledges and agrees that except as set forth in Sections 2 and 3 above,
Executive is not entitled to any benefits, severance, or other payments as a result of the
termination of his employment with the Company.
5. Confidentiality/Non-Disclosure.
(a) Company’s Interests. Executive acknowledges that the Company has expended
substantial amounts of time, money and effort to develop business strategies, substantial employee,
customer, supplier and vendor relationships, goodwill, business secrets, trade secrets,
confidential information and intellectual property and to build an efficient organization, and that
the Company has a legitimate business interest and right in protecting those assets as well as any
similar assets that the Company may develop or obtain following the date hereof. Executive
acknowledges that the Company is entitled to protect and preserve the value of its business (the
“Business”) and the assets thereof to the extent permitted by law. Executive acknowledges
and agrees that the restrictions imposed upon Executive under this Section 5 and Section 7 are
reasonable and necessary for the protection of the Business and such assets and that compliance
with the restrictions set forth in this Section 5 and Section 7 will not prevent Executive from
earning an adequate and reasonable livelihood.
(b) Consideration to Executive. Executive acknowledges that the Company would not
have agreed to enter into this Separation Agreement and to make the payments hereunder without
Executive’s agreeing to enter into and to honor all the provisions and covenants of this Section 5
and Section 7. Therefore, Executive agrees that, in consideration of (a) the Company’s entering
into this Separation Agreement and the Company’s obligations hereunder and (b) other good and
valuable consideration, the receipt of which is hereby acknowledged by Executive, Executive shall
be bound by, and agrees to honor and comply with, the provisions and covenants contained in this
Separation Agreement including but not limited to those contained in this Section 5 and Section 7
following the date hereof.
(c) Non-Disclosure of Confidential Information. Executive acknowledges that, in the
performance of his duties as an employee of the Company, Executive has received and been given
access to Confidential Information (as defined below). Executive agrees that all Confidential
Information has been, is and shall be the sole property of the Company and that Executive has no
right, title or interest therein. Except as otherwise specifically provided in Section 5 (e),
Executive shall not disclose or cause to be disclosed to any person or entity whatsoever, or
utilize or cause to be utilized by any person or entity whatsoever, any Confidential Information
acquired pursuant to Executive’s employment with the Company (whether acquired prior to or
subsequent to the execution of this Separation Agreement) or otherwise.
2
(d) For purposes of this Separation Agreement, “Confidential Information” means trade
secrets and confidential or proprietary information, knowledge or data that is or will be used,
developed, obtained or owned by Employer of the Business relating to the business, operations,
products or services of the Company or the business, operations, products or services of any
customer thereof, including products, services, fees, pricing, designs, marketing plans,
strategies, analyses, forecasts, formulas, drawings, photographs, reports, records, computer
software (whether or not owned by, or designed for the Company), operating systems, applications,
program listings, flow charts, manuals, documentation, data, databases, specifications, technology,
inventions, developments, methods, improvements, techniques, devices, products, know-how,
processes, financial data, customer, supplier and vendor lists, contact persons, cost information,
executive information, regulatory matters, personnel matters, employee information, employee
compensation, accounting and business methods, trade secrets, copyrightable works and information
with respect to any supplier, vendor, customer, employee or independent contractor of the Company,
in each case, whether or not reduced to writing or other tangible medium of expression and whether
or not reduced to practice, and all similar and related information in whatever form, and all such
items of any supplier, vendor, customer, employee or independent contractor of the Company or any
other person with which the Company has a business relationship or owes a duty of confidentiality;
provided, however, that Confidential Information shall not include information that
is generally known to the public other than as a result of disclosure by Executive in breach of
this Separation Agreement or in breach of any similar covenant made by Executive prior to entering
into this Separation Agreement or any other duty of confidentiality.
(e) Permitted Disclosure. Executive may utilize and disclose Confidential Information
as required in the discharge of Executive’s duties as an employee of the Company, subject to any
specific restriction, limitation or condition placed on such use or disclosure by the Company, and
disclose Confidential Information to the extent required by applicable law or as ordered by a court
of competent jurisdiction; provided that in such event, or if Executive receives a request
from a court or other governmental authority to disclose Confidential Information, Executive shall
give prompt written notice to the Company and consult with and provide reasonable assistance to the
Company in seeking a protective order or request for other appropriate remedy. In the event that
such protective order or remedy is not obtained, or if the Company waives the seeking of such
protective order or other remedy, Executive shall disclose only that portion of the Confidential
Information that, in the opinion of Executive’s legal counsel, is legally required to be disclosed
(and Executive shall be entitled to rely on the advice of such counsel) and if requested in writing
by the Company to do so, which writing contains an undertaking to reimburse Executive for any
expenses incurred by him, then Executive shall exercise his reasonable best efforts to ensure that
confidential treatment shall be accorded such Confidential Information by the receiving person or
entity. The Company shall be given an opportunity to review such Confidential Information prior to
disclosure thereof.
6. Non-Disparagement. Without limitation as to time, Executive agrees that he shall
not make any negative or disparaging statement or communication about the Company or its
affiliates, or their past and present investors, shareholders, directors, officers, employees or
agents. Notwithstanding the foregoing, nothing in this paragraph 6 shall prevent Executive from
making truthful statements when required by law or regulation or by order of a court or other body
with apparent jurisdiction.
7. Non-Solicitation and Non-Competition.
(a) For the “Restricted Period” as hereinafter defined, Executive shall not, and shall cause
each of Executive’s representatives, agents and affiliates not to, directly or indirectly:
3
| (i) | (A) engage in any activity or business, or establish any new
business, within the United States of America that is in competition, in whole
or in part, with the Company (“Competitive Activities”), including (1)
selling goods or performing services of the type sold or performed by the
Company either (x) at any time prior to the date hereof or (y) prior to the
time Executive ceases to be an employee of Employer or (2) assisting any person
or entity in any way to do, or attempt to do, anything prohibited herein, or
(B) perform any action or activity or engage in any course of conduct that is
detrimental to the business reputation of the Company or any business of the
Company conducted at any time prior to the time Executive ceases to be an
employee of the Company; |
||
| (ii) | (A) solicit any person or entity that is a customer (or
prospective customer) of the Company or any of its affiliates to purchase any
goods or services sold or performed by the Company or any of its affiliates
from any person other than the Company or any of its affiliates or to reduce or
refrain from doing any business with the Company or any of its affiliates, (B)
solicit, recruit or hire any employee of the Company or any of its affiliates
or any person who has worked for the Company or any of its affiliates, (C)
solicit or encourage any employee of the Company or any of its affiliates to
leave the employment of the Company or any of its affiliates or recommend to
any person that such person employ or engage any employee of the Company or any
of its affiliates, (D) intentionally interfere with or damage (or attempt to
interfere with or damage) any relationship between the Company or any of its
affiliates, on one hand, and any of their respective employees, customers or
suppliers, on the other hand (or any person or entity that the Company or any
of its affiliates has approached or has made significant plans to approach as a
prospective employee, customer or supplier) or any governmental authority or
any agent or representative thereof or (E) assist any person or entity in any
way to do, attempt to do, anything prohibited by this clause (ii); |
||
| (iii) | serve as a director, officer, affiliate, employee, broker,
independent contractor, consultant, agent, representative or advisor for any
Competitor (as defined below) and in such capacity engage in, or directly or
indirectly manage or supervise personnel engaged in, any activity (A) which is
substantially similar or substantially related to any activity in which
Executive was engaged, in whole or in part, at the Company in any capacity, (B)
for which Executive had managerial or supervisory responsibility at the Company
or (C) which utilizes the same or substantially similar specialized knowledge
or skills as those utilized by Executive in his activities with the Company, in
each case at any time prior to Executive’s termination of employment with the
Company; or |
||
| (iv) | form, or acquire any equity ownership, voting or profit
participation interest in, any Competitor, other than an interest of less than
5% in a Competitor that is publicly traded. |
(b) For purposes of this Separation Agreement, the term “Restricted Period” shall mean
a period commencing on the date hereof and terminating twelve (12) months from the Separation Date.
The Restricted Period shall be tolled during (and shall be deemed automatically extended by) any
period in which Executive is in violation of this Section 7.
4
(c) For purposes of this Separation Agreement, the term “Competitor” shall mean any
business, person or entity that engages in any activity or owns or controls a significant interest
in any business, person or entity that engages in any activity, that, in either case, competes in
the United States of America with any activity in which the Company is engaged.
(d) For purposes of this Separation Agreement, the term “solicit” shall mean the
initiation of any communication of any kind whatsoever for the purpose of inviting, encouraging or
requesting the taking (or refraining from taking) of any action.
8. Release of Claims. In consideration for the benefits and other promises contained
herein, and as a material inducement to the Company to enter into this Separation Agreement,
Executive hereby knowingly, voluntarily, and irrevocably and unconditionally releases and forever
discharges the Company and all present and former directors, officers, agents, owners,
shareholders, employees, representatives, attorneys, parent companies, divisions, subsidiaries,
affiliates, assigns and successors (and all present and former agents, directors, officers, owners,
shareholders, employees, representatives and attorneys of such parent companies, divisions,
subsidiaries and affiliates) and all persons acting by, through, under or in concert with any of
them (the “Released Parties”) from any and all claims, controversies, actions, causes of action,
cross-claims, counter-claims, demands, debts, compensatory damages, liquidated damages, punitive or
exemplary damages, other damages, claims for costs, expenses and attorneys’ fees, or liabilities of
any nature whatsoever in law and in equity, both past and present (through the date of this
Separation Agreement) and whether known or unknown, suspected, or claimed against the Company or
any of the Released Parties which Executive, or any of Executive’s heirs, executors, administrators
or assigns, may have, which arise out of or are connected with Executive’s employment with, or
Executive’s separation from, the Company. This Release expressly covers, without limitation, any
and all any claims, allegations, or violations that Executive might raise under Title VII of the
Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age Discrimination in
Employment Act of 1967, as amended (including the Older Workers Benefit Protection Act); the Equal
Pay Act of 1963, as amended; the Americans with Disabilities Act of 1990; the Family and Medical
Leave Act of 1993; the Civil Rights Act of 1866, as amended; the Worker Adjustment Retraining and
Notification Act; the Employee Retirement Income Security Act of 1974; any applicable Executive
Order Programs; the Fair Labor Standards Act; or their state or local counterparts; or under any
other federal, state or local civil or human rights law, or under any other local, state, or
federal law, regulation or ordinance; or under any public policy, contract or tort, or under common
law; or arising under any policies, practices or procedures of the Company; or any claim for
wrongful discharge, breach of contract, infliction of emotional distress, defamation; or any claim
for costs, fees, or other expenses, including attorneys’ fees incurred in these matters) (all of
the foregoing collectively referred to herein as the “Claims”).
Executive represents that Executive has made no assignment or transfer of any Claim, cause of
action, or other matter covered by Section 8 above.
Executive agrees that this General Release does not waive or release any rights or claims that
Executive may have under the Age Discrimination in Employment Act of 1967 which arise after the
date Executive executes this Separation Agreement.
In signing this General Release, Executive acknowledges and intends that it shall be effective
as a bar to each and every one of the Claims hereinabove mentioned or implied. Executive further
agrees that in the event Executive should bring a Claim seeking damages against the Company, or in
the event Executive should seek to recover against the Company in any Claim brought by a
governmental agency on Executive’s behalf, this General Release shall serve as a complete defense
to such Claims. Executive agrees that if Executive violates this General Release by suing the
Company or the other Released Parties, Executive will pay all costs and expenses of defending
against the suit incurred by the Released Parties,
5
including reasonable attorneys’ fees, and return all payments received by Executive pursuant
to the Agreement.
9. ADEA Release. Executive represents to the Company that Executive is aware,
understands and agrees that:
(a) Executive is voluntarily entering into and signing this Agreement;
(b) the claims waived, released and discharged in Section 8 of this Agreement include any and
all claims Executive has or may have arising out of or related to Executive’s employment with the
Company or termination of that employment, including any and all claims under the Age
Discrimination in Employment Act (the “ADEA”);
(c) those claims waived, released and discharged in that Section 8 do not include, and
Executive is not waiving, releasing or discharging, any claims that may arise after the Date of
this Agreement;
(d) payment by the Company of continued salary pursuant to Section 2 above provides
consideration that Executive was not entitled to receive before signing this Agreement;
(e) Executive was given twenty-one (21) days within which to consider this Agreement, but
Executive has been informed that Executive may waive this twenty-one day consideration period and
elect to execute this document prior to the expiration of the twenty-one day consideration period,
in order to expedite the execution of this Agreement and the payment of the Severance Benefit;
Executive may waive this twenty-one day consideration period by signing a separate waiver, entitled
ELECTION TO EXECUTE PRIOR TO EXPIRATION OF TWENTY-ONE DAY CONSIDERATION PERIOD, made available to
Executive with this Agreement;
(f) Executive had and has the right to consult with an attorney regarding this Agreement
before signing this Agreement, and acknowledges that Executive has obtained such legal counsel as
Executive deems necessary, such that Executive is entering into this Agreement freely, knowingly
and voluntarily;
(g) Executive may revoke this Agreement at any time within seven (7) days after the day
Executive signs this Agreement and this document will not become effective or enforceable as to any
claims under the ADEA and no payments under this Agreement will be payable until the eighth day
after the day Executive signs this Agreement on which day (the “Agreement’s Effective Date”), this
Agreement will automatically become effective and enforceable unless previously revoked within that
seven-day period); and
(h) Executive HAS CAREFULLY READ THIS DOCUMENT, AND FULLY UNDERSTANDS EACH AND EVERY TERM.
10. No Admission of Wrongdoing. This Separation Agreement shall not in any way be
construed as an admission by the Releasees of any acts of wrongdoing whatsoever against Executive
or any other person.
11. Code Section 409A. It is intended that the provisions of this Separation
Agreement comply with Section 409A of the Code, and all provisions of this Agreement shall be
construed and interpreted in a manner consistent with Section 409A of the Code to avoid the
imposition of penalties and additional taxes under Section 409A of the Code.
6
12. Miscellaneous.
(a) Entire Agreement; Conflicts. This Separation Agreement sets forth the entire
agreement between the Parties and fully supersedes any and all prior agreements or understandings
between the Parties pertaining to the subject matter hereof. It is intended that there should be
no conflict between the provisions of this Separation Agreement and the Employment Agreement
between the Company and Executive, but should any such conflict exist, the Parties intend that this
Separation Agreement shall control.
(b) Governing Law. This Separation 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 Delaware.
(c) Dispute Resolution. Any and all disputes arising under this Separation Agreement,
other than with respect to Sections 5 and 7, shall, if not settled by direct negotiation between
the Parties, be subject to non-binding mediation before an independent mediator under the National
Rules for the Resolution of Employment Disputes of the American Arbitration Association (the “AAA
Rules”) in effect on the date of the first notice of demand for mediation. In the event the
dispute is not settled through mediation, the Parties shall proceed to binding arbitration before a
single independent arbitrator selected under the AAA Rules. The law to be applied in this
arbitration shall be that of the State of North Carolina.
(d) 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.
(e) Headings. Section headings in this Separation Agreement are included herein for
convenience of reference only and shall not constitute a part of this Separation Agreement for any
other purpose.
(f) 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 Separation Agreement shall not be modified in
any respect except by a writing executed by each party hereto.
(g) Severability. If for any reason any term or provision containing a restriction set
forth herein is held to be for a length of time which is unreasonable or in other way is construed
to be too broad or to any extent invalid, such term or provision shall not be determined to be
null, void and of no effect, but to the extent the same is or would be valid or enforceable under
applicable law, any court shall construe and reform this Separation Agreement to provide for a
restriction having the maximum time period and other provisions as shall be valid and enforceable
under applicable law. If, notwithstanding the previous sentence, any term or provision of this
Separation Agreement is held to be invalid or unenforceable, all other valid terms and provisions
hereof shall remain in full force and effect, and all of the terms and provisions of this
Separation Agreement shall be deemed to be severable in nature.
(h) Counterparts. This Separation Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will constitute one and
the same instrument.
7
(i) Further Acknowledgement. Executive has read and carefully considered this
Separation Agreement and the general release it contains, has had an opportunity to ask questions
about it and has had any questions answered to his satisfaction. Further the Company has indicated
that Executive is free to discuss this Separation Agreement with his family and his attorney.
Executive is signing this Separation Agreement knowledgably, voluntarily and without coercion of
any kind.
[Signature page(s) follow]
8
IN WITNESS WHEREOF, the Company has caused this Separation Agreement to be executed by its
duly authorized officer, and Executive has hereunto signed this Separation Agreement, as of the
date first above written.
Executive:
|
Company: | |||
| Pike Electric, Inc., | ||||
/s/ Xxxx X. Xxxxxxx
|
North Carolina Corporation | |||
| By: | /s/ Xxxxx X. Xxx | |||
| Name: Xxxxx X. Xxx Title: Vice President and General Counsel |
9
ELECTION TO EXECUTE PRIOR TO EXPIRATION OF
TWENTY-ONE DAY CONSIDERATION PERIOD
TWENTY-ONE DAY CONSIDERATION PERIOD
The undersigned (the “Executive” referenced in that certain Separation Agreement and
General Release, heretofore provided to me by Pike Electric Inc.), acknowledges that on
September 7, 2007, he was provided with the attached Separation Agreement and General Release (the
“Separation Agreement”). The undersigned further acknowledges that he has been advised to consult
with an attorney before entering into the attached Separation Agreement and that he has been given
a period of twenty-one (21) days to consider whether to accept or reject the proposed Separation
Agreement. To the extent that he has signed the attached Separation Agreement in less than
twenty-one days, the undersigned knowingly and voluntarily elected to execute the Separation
Agreement before the twenty-one (21) day period has expired and waives any right he has in
that regard. The undersigned acknowledges that he has received and read this Acknowledgement and
understands its meaning.
/s/ Xxxx X. Xxxxxxx
|
/s/ Xxxxx X. Xxx | |
Witness
|
Witness | |
09/21/07
|
September 27, 2007 | |
Date
|
Date |
10
