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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
("Agreement"), effective this 20 th day of November, 2006
("Effective Date"), is entered into by and between Audie Simmons
("Executive") and Pike Electric, Inc., a North Carolina corporation
(the "Company") and, solely with respect to Section 4(b), Pike
Electric Corporation, a Delaware corporation.
WHEREAS, Executive desires to provide the Company and certain of
its subsidiaries with his services, and the Company desires to
employ Executive on the terms and subject to the conditions set
forth herein;
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:
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1.
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Employment. Subject to the terms and
conditions of this Agreement, the Company agrees to employ
Executive, and Executive agrees to be employed by the Company in
the position of Senior Vice-President Operations commencing
November 20, 2006.
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2.
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Position. During the period of his
employment hereunder, Executive agrees to serve the Company, and
the Company shall employ Executive, as Senior Vice-President
Operations, or in such other executive capacity or capacities, at
the same level of seniority, as may be determined from time to time
by the CEO of Pike Electric, Inc.
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3.
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At-Will Employment and Duties .
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(a)
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Executive and the Company agree that
Executive’s employment 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
Section 5 below.
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(b)
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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 (i) devote all of his business time, attention, skill
and efforts to the business and affairs of the Company and its
affiliated companies and (ii) report to the Chief Executive
Officer of Pike Electric, Inc. (the "CEO").
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4.
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Salary; Incentive Bonus; Reimbursement of
Expenses; Other Benefits .
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(a)
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Salary. During the period of employment
under this Agreement, Executive shall be paid a salary at the rate
of $410,852 annually ("Base Salary") commencing November 20,
2006. The Base Salary shall be reviewed annually and may be
adjusted as determined by the Board of
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Directors of Pike Electric, Inc. (the "Board")
(or any authorized committee thereof) in consultation with the
CEO.
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(b)
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Stock Options . Executive will be
eligible for future grants of stock options and/or restricted stock
in accordance with any future Pike Incentive Plan and form of stock
option agreement as the Board of Directors of Pike Electric
Corporation, or any authorized committee thereof in its sole
discretion may determine from time to time in consultation with the
CEO.
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(c)
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Reimbursement of Expenses . The Company
shall pay or reimburse Executive, in accordance with its normal
policies and practices, for all reasonable travel and other
expenses incurred by Executive in performing his obligations under
this Agreement.
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(d)
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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 (including but not limited to any deferred
compensation plan and 401(k) plan).
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5.
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Termination of Employment .
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(a)
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Termination by the Company for Cause.
The Company may terminate Executive’s employment under this
Agreement for "Cause" (as hereinafter defined) or otherwise at will
at any time immediately upon written notice, or where applicable,
upon Executive’s failure to cure the breach as provided
below, whereupon the Company 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 Company 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 Company provides such notice.
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(b)
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Termination as a Result of Executive’s
Death or Disability . If Executive’s employment
hereunder is terminated by reason of Executive’s Disability
(as hereinafter defined) or death, 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 Company’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
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meaning set forth in any long-term disability
plan in which Executive participates, and in the absence thereof
shall mean 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, and if Disability
has occurred termination shall occur within thirty (30) days
after written notice of 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).
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(c)
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Termination by Executive for Good Reason or by
the Company other than as a Result of Executive’s Death or
Disability or other than for Cause .
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(i)
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If Executive’s employment is terminated by
Executive for "Good Reason" (as hereinafter defined) or by the
Company for any reason other than Executive’s death or
Disability or other than for Cause, subject to Executive entering
into and not revoking a release of claims in favor of the Company
and abiding by the covenants of non-competition, non-solicitation
and confidentiality set forth in Section 6, Executive shall be
entitled to the following benefits:
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1)
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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)
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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.
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(ii)
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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
Company’s material breach (without Executive’s express
written consent) of Sections 2 or 4 of this Agreement;
provided, that Executive has provided the Company written notice of
the material breach and the Company has not cured such breach
within fifteen (15) days
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following the date Executive provides such
notice. If the Company thereafter intentionally repeats the breach
it previously cured, such breach shall no longer be deemed
curable.
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(d)
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Termination by Executive other than for Good
Reason . Executive may terminate his employment with the
Company other than for Good Reason upon thirty (30) days written
notice to the Company, after which the Company shall have no
further obligation hereunder to Executive, except for payment of
amounts of Base Salary and other benefits accrued through the
termination date,
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6.
Confidential Information, Non Competition; Non-Solicitation
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(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 ti
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