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 Mark P.
Thomson, an individual domiciled in the State of North Carolina
(the “Executive” and, together with the Company, the
“Parties”), this the 7 th 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
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