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
.
(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 hereunde
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