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
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