Employment Agreement

Amendment to Employment Agreement

 

 

 

EX-10.1 2 c75519exv10w1.htm EXHIBIT 10.1

Exhibit 10.1

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 24th day of September, 2008, by and between PIKE ELECTRIC CORPORATION, a Delaware corporation (“Employer”), and JOSEPH ERIC PIKE, an individual domiciled in the State of North Carolina (“Executive”).

GENERAL

Executive is currently employed by Employer pursuant to an Employment Agreement dated as of July 20, 2005 (the “Predecessor Agreement”). Employer and Executive have agreed to amend and restate the Predecessor Agreement, as set forth herein.

ARTICLE I
EMPLOYMENT

1.1. Position. Subject to the terms and conditions of this Agreement, Employer hereby employs Executive, and Executive hereby accepts employment, as Chief Executive Officer of Employer commencing on the Effective Date and ending upon the termination of the Term. Executive shall perform the duties of his position as determined by the Board of Directors of Employer (the “Board”) in accordance with the policies, practices and bylaws of Employer. Executive shall report directly to the Board.

1.2. Time and Effort. Executive shall serve Employer faithfully, loyally, honestly and to the best of his ability. Executive shall devote all his business time and best efforts to the performance of his duties on behalf of Employer. During his term of employment, Executive shall not at any time or place or to any extent whatsoever, either directly or indirectly, without the express written consent of the Board, engage in any outside employment or in any activity competitive with or adverse to Employer’s business, practice or affairs. This is not intended to prohibit Executive from engaging in nonprofessional activities such as personal investments or conducting to a reasonable extent private business affairs, as long as they do not conflict or interfere with Executive’s responsibilities to Employer, provided that Executive shall not serve on other boards of directors without the prior consent of the Board. Participation to a reasonable extent in civic, social or community activities is encouraged.

1.3. Term. The term (“Term”) of this Agreement shall commence on and as of the July 1, 2008 (the “Effective Date”) and, unless earlier terminated pursuant to Article IV, shall continue for a period of one year (the “Initial Term”). Thereafter, the Term shall be automatically extended for additional one-year periods (each, an “Additional Term”), subject to either party’s right to terminate this Agreement by giving the other party written notice of its intention to do so at least sixty (60) days prior to the expiration of the Initial Term or the Additional Term, as the case may be.

 

 

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ARTICLE II
COMPENSATION

2.1. Base Salary. Employer agrees to pay Executive, and Executive agrees to accept, as compensation for the services and obligations set forth herein, base salary (herein “Base Salary”) in cash equal to the sum of Seven Hundred Eighty Thousand and No/100 ($780,000), which sum shall be paid to Executive by Employer, less any taxes required to be withheld under federal, state and local law, in accordance with Employer’s standard payroll practices for executive personnel, as same may change from time to time. The amount of Base Salary shall be subject to adjustment as provided in Section 2.2 below.

2.2. Adjustments to Base Salary. Upward adjustments to Executive’s Base Salary shall be determined by the compensation committee of the Board (the “Committee”) in its sole discretion. For so long as Executive is employed by Employer there shall be no reductions in Executive’s Base Salary, as adjusted.

2.3. Annual Bonuses. Subject to Section 10.1 below, in addition to the Base Salary described above, Executive shall receive an annual bonus in such amounts and on such terms and conditions as adopted or approved by the Committee from time to time.

2.4. Long-Term Incentive Plan. Subject to Section 10.1 below, Executive shall be entitled to participate in a long-term incentive plan of Employer in such amounts and on such terms and conditions as adopted or approved by the Committee from time to time.

2.5. Additional Compensation. Executive shall further be eligible to participate in any other management incentive plans of Employer to the extent such plans are adopted or continue in effect (as determined in the discretion of the Committee), and to receive such additional compensation as may be provided by such plans from time to time or as otherwise approved by the Committee.

ARTICLE III
EXECUTIVE BENEFITS

3.1. Employer Policy. Executive shall be entitled to all executive benefits currently offered or adopted by Employer during Executive’s employment with Employer.

3.2. Business Expenses. Employer will reimburse Executive for all reasonably incurred business expenses, subject to the travel and expense policy established by Employer from time to time, incurred by Executive in the performance of Executive’s duties pursuant to this Agreement, provided that Executive furnishes to Employer adequate records and other documentary evidence required to substantiate such expenditures.

3.3. Personal Use of Employer Aircraft. Employer will provide Executive with personal use of any of Employer’s aircraft for up to 50 flight hours per year, provided such use does not interfere with the normal business use of the aircraft. Executive agrees to schedule his personal use of the aircraft in advance, upon reasonable notice to Employer.

 

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3.4. Excise Tax Gross-Up.

(a) In the event it shall be determined that any payments or distributions by Employer to Executive or for Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 3.4) (“Payments”) are subject to the excise tax imposed by Section 4999 (or any successor provisions) of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalty is incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, the “Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any income taxes and Excise Tax imposed on the Gross-Up Payment (and any interest and penalties imposed with respect thereto)), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon all such Payments; provided, however, that, if no Excise Tax would be imposed on such Payments were the aggregate amount of all such Payments reduced by an amount not to exceed 5% of such aggregate amount, then Executive shall forfeit and Employer shall not be obligated to pay the amount of such Payments (which shall not exceed 5% of such aggregate amount) necessary to avoid imposition of the Excise Tax on such Payments (a “Payment Reduction”), and Executive shall be entitled to designate the particular Payments (and the amounts thereof) to be so reduced.

(b) Subject to the provisions of Section 3.4(c), all determinations required to be made under this Section 3.4, including whether and when such a Gross-Up Payment or Payment Reduction is required, the amount of such Gross-Up Payment or Payment Reduction and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP (or its successor) (the “Accounting Firm”) which shall provide detailed supporting calculations both to Employer and to Executive within thirty (30) business days of the receipt of notice from Executive that there has been a Payment subject to Excise Tax, or such earlier time as is requested by Employer. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change of control of Employer that gives rise to the Excise Tax, Employer shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which shall then be deemed to be the Accounting Firm). All fees and expenses of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment as determined pursuant to this Section 3.4 shall be paid by Employer to Executive within ten (10) business days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon Employer and Executive. As a result of the uncertainty of the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Employer should have been made (“Underpayment”). In the event that Employer exhausts its remedies pursuant to Section 3.4(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, and any such Underpayment shall be promptly paid by Employer to Executive.

 

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(c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service or other taxing authority that, if successful, would require the payment by Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than five (5) days after Executive or his representative is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim or take any other action with respect thereto prior to the expiration of the thirty (30) day period following the date on which Executive gives such notice to Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (a) give Employer any information reasonably requested by Employer relating to such claim, (b) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (c) cooperate with Employer in good faith in order effectively to contest such claim and (d) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing, Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim and may, at its sole option, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; provided, however, that if Employer directs Executive to pay such claim and sue for a refund, Employer shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for Executive’s taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Employer’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

(d) If, after the receipt by Executive of a Gross-Up Payment or an amount advanced by Employer pursuant to Section 3.4(c), Executive becomes entitled to receive any refund with respect to such Gross-Up Payment or claim, Executive shall (subject to Employer’s complying with the requirements of Section 3.4(c), if applicable) promptly pay to Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Employer pursuant to Section 3.4(c), a determination is made that Executive is not entitled to any refund with respect to such claim and Employer does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

(e) Employer shall be entitled to withhold and pay over to the Internal Revenue Service or other applicable taxing authority, for the benefit of Executive, all or any portion of any Gross-Up Payment, and Executive hereby consents to such withholding.

 

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ARTICLE IV
TERMINATION

4.1. For Cause. Employer may terminate Executive’s employment hereunder for “Cause”. For purposes of this Agreement, the term “Cause” shall mean (a) Executive is convicted of a felony involving moral turpitude, or (b) Executive, in carrying out his duties, is guilty of (i) gross neglect or (ii) willful misconduct resulting, in either case, in material harm to Employer unless such act, or failure to act, was believed by Executive in good faith to be in the best interests of Employer; provided that, with respect to (b) above, Executive shall have 30 days after delivery by Employer of a written explanation in reasonable detail of the circumstances that are claimed to constitute Cause hereunder within which to cure and eliminate the existence of such circumstances, unless such circumstances are not capable of being cured in which case no cure period need be provided.

4.2. Termination by Executive. Executive may terminate this Agreement and his employment for “Good Reason” by giving written notice to Employer within sixty (60) days, or such longer period as may be mutually agreed to in writing by Executive and Employer but not to exceed ninety (90) days, of the occurrence of any event constituting “Good Reason,” as described below:

Executive shall have “Good Reason” to terminate this Agreement and his employment upon occurrence of any of the following events: (a) Executive is assigned any duties or responsibilities that are inconsistent, in any material, adverse respect, with the scope of duties and responsibilities associated with his position and office as described in Section 1.1 above; (b) Executive suffers a reduction in, or a material, adverse interference with, the authorities, duties or responsibilities associated with his position and office as described in Section 1.1 above; (c) the duties of the position described in Section 1.1 change in a materially adverse manner from those at the date of execution of this Agreement; or (d) Executive is required to relocate to an employment location that is more than 50 miles from his employment location on the Effective Date; provided that Employer shall have 30 days after delivery by Executive of a written explanation in reasonable detail of the circumstances that are claimed to constitute Good Reason within which to cure and eliminate the existence of such circumstances, unless such circumstances are not capable of being cured in which case no cure period need be provided. If Executive terminates this Agreement and his employment under this Agreement for “Good Reason”, Executive shall be entitled to receive Severance Benefits pursuant to Article V.

4.3. Other Termination. This Agreement shall terminate, at the election of Employer, upon the death, Disability (as defined in Article VIII) or legal incapacity of Executive. In such event Executive or Executive’s heirs shall receive all benefits to which Executive is then entitled. All equity compensation awards then held by Executive pursuant to Employer’s compensation plans shall automatically become vested and exercisable, subject to the other terms and conditions of the equity compensation plan of Employer under which they were granted.

 

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ARTICLE V
SEVERANCE BENEFITS

5.1. Triggering Events. If this Agreement is terminated by Employer without Cause, or if Executive elects to terminate this Agreement for “Good Reason” pursuant to Section 4.2 above (each, a “Termination Event”), Executive shall receive the “Severance Benefits” provided by this Article V and all unvested equity compensation awards then held by Executive, pursuant to Employer’s compensation plans, shall automatically become vested and exercisable, subject to the other terms and conditions of the equity compensation plans of Employer under which they were granted.

5.2. Severance Benefits. Subject to Section 10.1 below, the Severance Benefits shall begin immediately following the date Executive incurs a Termination Event and will continue to be payable for 24 consecutive months after the Termination Event, in accordance with Employer’s normal payroll practices. Executive’s “Severance Benefits” shall consist of the continuation of Executive’s Base Salary determined in accordance with Sections 2.1 and 2.2 above, and, to the extent permitted under the applicable plans, continued participation in the health, life, disability and other benefits that Executive was receiving as of his last day of active employment with Employer. If Executive’s continued participation in the health plan at active employee rates for this 24-month period would be discriminatory under Code Section 105(h), then Executive shall be entitled to participate in the health plan for this 24-month period only if he pays the full cost of coverage each month, and Employer shall pay Executive each month for 24 months the difference between the full cost of the health coverage Executive had in place as of the date of the Termination Event and the cost Executive was paying as of the date of the Termination Event.

5.3. Termination of Severance Benefits. Severance Benefits shall immediately cease if Executive commits a violation of any of the terms of this Agreement relating to confidentiality, non-disclosure, non-solicitation and non-competition.

ARTICLE VI
CONFIDENTIAL INFORMATION

6.1. Confidential Information. Executive hereby acknowledges that in order to perform his duties as an executive of Employer, he has received, and will in the future be given access to, certain confidential, secret and proprietary information in the form of records, data, specifications, formulas, technology, inventions, devices, products, methods, know-how, processes, financial data, customer and/or vendor information and practices, customer lists, cost information, executive information and trade secrets (collectively, “Confidential Information”) developed and owned by Employer concerning the business, products and/or services of Employer.

6.2. Non-Disclosure. Except as otherwise specifically provided herein, Executive will not, directly or indirectly, disclose or utilize, or cause or permit to be disclosed or utilized, to any person or to any entity whatsoever any Confidential Information acquired pursuant to his employment with Employer (whether acquired prior to or subsequent to the execution of this Agreement) under this Agreement or otherwise.

 

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6.3. Permitted Disclosure. Executive may utilize the Confidential Information only to the extent reasonably necessary and required in the discharge of his duties as an executive of Employer.

6.4. Return of Information. Executive will immediately, upon the request of Employer, return to Employer all originals, copies or other embodiments of any Confidential Information received under this Agreement or otherwise. Executive will not retain, or cause or permit to be retained, any copies or other embodiments of the materials so returned.

6.5. Non-Competition and Non-Solicitation. Executive understands and agrees that Employer shall be entitled to protect and preserve the going concern value of the business of Employer and its affiliates to the extent permitted by law and that Employer would not have entered into this Agreement absent the provisions of this Section 6.5, and Executive therefore agrees to the following:

(a) Non-Solicitation. For 24 months after termination of his employment, Executive shall not (and shall not attempt to) (i) solicit, recruit or hire any current or former employee of Employer or its affiliates or otherwise interfere with or damage the relationship between Employer and its affiliates and any such employee, (ii) solicit, interfere with or damage any relationship between Employer or its affiliates and its customers or suppliers (or any person that Employer has approached or has made significant plans to approach as a prospective customer or supplier) or any governmental authority or any agent or representative thereof or (iii) assist any person in any way to do, or attempt to do, any of the foregoing.

(b) Non-Competition. For five years after termination of his employment, Executive shall not (and shall not attempt to) (i) engage in any activity or business (whether as a stockholder, partner, member, investor, lender, director, officer, employee, agent, consultant, contractor or otherwise), or establish any new business, within North America that is in competition, in whole or in material part, with Employer or its affiliates, including selling goods or services of the type sold by Employer or its affiliates during the Term (the foregoing activities and businesses, “Competitive Activities”) or (ii) assist any person in any way to do, or attempt to do, any Competitive Activities. This Section 6.5(b) shall be deemed not breached as a result of the ownership by Executive of: (A) less than an aggregate of 5% of any class of stock of a person engaged, directly or indirectly, in Competitive Activities, (B) less than 10% in value of any instrument of indebtedness of a person engaged, directly or indirectly, in Competitive Activities or (C) a person that engages, directly or indirectly, in Competitive Activities if such Competitive Activities account for less than 10% of such person’s consolidated annual revenues.

(c) Notwithstanding any other provision of this Agreement, it is understood and agreed that remedies at law would be inadequate in the case of any breach of the covenants contained in this Section. Employer shall be entitled to equitable relief, including the remedy of specific performance, with respect to any breach or attempted breach of such covenants.

 

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ARTICLE VII
PROPRIETARY INTEREST

All books, records and other documents relating to the business and customer accounts of Employer, whether prepared by Executive or otherwise coming into his possession, shall be and remain the exclusive property of Employer and Executive shall not, during the Term or thereafter, directly or indirectly, assert any interest or property rights therein. Upon termination of this Agreement, all books, records and other documents shall immediately be returned to Employer.

ARTICLE VIII
DISABILITY

If, based upon independent medical advice by a competent medical authority mutually and reasonably agreed upon by the parties hereto, the Board determines that due to physical or mental illness Executive has a Disability, then Employer may terminate Executive’s employment hereunder. For purposes of this Agreement, the term “Disability” shall mean Executive is unable to perform his customary duties hereunder for a period in excess of (a) one hundred twenty (120) consecutive business days, and if, within five (5) days of written notice of the expiration of such one hundred twenty (120) day period, Executive shall not have returned to the performance of his duties on a full-time basis, or (b) one hundred thirty (130) business days in any consecutive twelve (12) month period. During such one hundred twenty (120) day and one hundred thirty (130) day periods, as the case may be, Executive shall continue to receive one hundred percent (100%) of his Base Salary as specified in Article II, and all benefits as specified in Article III.

ARTICLE IX
NOTICE

All notices, requests, demands and other communications required or permitted to be given under the terms of this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, given by prepaid telegram or mailed first class, postage prepaid or by registered or certified mail as follows:

If to Employer:

Pike Electric Corporation
Attn: Chief Legal Officer
100 Pike Way
Mt. Airy, NC 27030

If to Executive:

J. Eric Pike
[]
[]

 

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The parties may change the address to which notices under this Agreement shall be sent by providing written notice to the other in the manner specified above.

ARTICLE X
MISCELLANEOUS

10.1. Code Section 409A. In light of the uncertainty surrounding the proper application of Section 409A of the Code, Executive and Employer agree to cooperate to make necessary amendments to this Agreement (including, without limitation to the timing of any Severance Benefits payable pursuant to Article V) to avoid imposition of penalties and additional taxes under Code Section 409A. It is intended that the provisions of this Agreement comply with Code Section 409A, and all provisions of this Agreement shall be construed and interpreted in a manner consistent with Code Section 409A. In particular, if necessary to avoid imposition of penalties and additional taxes under Code Section 409A, (a) the timing of Severance Benefits shall be subject to a six-month deferral in a manner consistent with Section 409A(a)(2)(B)(i) and (b) any annual bonuses payable to Executive shall be paid not later than the expiration of two and one-half months from the last business day of the fiscal year of Employer with respect to which the bonus is payable.

10.2. Delegation of Duties. Executive may not assign or delegate the services and obligations he is required to perform under this Agreement. The parties agree that any attempt by Executive to delegate his duties hereunder shall be null and void.

10.3. Amendment. This Agreement may be modified or amended only by and to the extent of the written agreement of Employer and Executive.

10.4. Successors. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of Employer.

10.5. Entire Agreement. This Agreement contains the entire agreement of the parties hereto and supersedes any prior written or oral agreement between them relating to the subject matter contained herein.

10.6. Survival. The terms of Article VI, Article VII, Article X and Article XI shall survive the expiration or termination of this Agreement for any reason.

10.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware.

10.8. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

10.9. Indemnity. Executive shall be indemnified in his position to the fullest extent permitted or required by the laws of the State of Delaware.

 

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10.10. Certain Definitions. For purposes of this Agreement:

(a) The term “person” means any individual, partnership, company, corporation or other entity of any kind.

(b) The term “affiliate”, with respect to any person, means any other person that, directly or indirectly, controls, is controlled by or is under common control with such person.

ARTICLE XI
DISPUTE RESOLUTION

11.1. Mediation. Any and all disputes arising under, pertaining to or touching upon this Agreement or the statutory rights or obligations of either party hereto, shall, if not settled by negotiation, be subject to non-binding mediation under the National Rules for the Resolution of Employment Disputes of the American Arbitration Association (“AAA”) in effect on the date of the first notice of demand for mediation, before an independent mediator selected by the parties pursuant to Section 11.4. Notwithstanding the foregoing, both Executive and Employer may seek preliminary judicial relief if such action is necessary to avoid irreparable damage during the pendency of the proceedings described in this Article XI. Any demand for mediation shall be made in writing and served upon the other party to the dispute, by certified mail, return receipt requested, at the business address of Employer, or at the last known residence address of Executive, respectively. The demand shall set forth with reasonable specificity the basis of the dispute and the relief sought. The mediation hearing will occur at a time and place convenient to the parties in Forsyth County, North Carolina, within thirty (30) days of the date of selection or appointment of the mediator.

11.2. Arbitration. In the event that the dispute is not settled through mediation, the parties shall then proceed to binding arbitration before a single independent arbitrator selected pursuant to Section 11.4. The mediator shall not serve as arbitrator. The arbitration hearing shall occur at a time and place convenient to the parties in Forsyth County, North Carolina, within thirty (30) days of the date of selection or appointment of the arbitrator. The arbitration shall be governed by the rules of the AAA in effect on the date of the first notice of demand for arbitration. The arbitrator shall issue written findings of fact and conclusions of law, and an award, within fifteen (15) days of the date of the hearing unless the parties otherwise agree.

11.3. Damages. In cases of breach of contract or policy, damages shall be limited to contract damages. The arbitrator may award fees to the prevailing party and assess costs of the arbitration to the non-prevailing party.

11.4. Selection of Mediators or Arbitrators. The parties shall select the mediator or arbitrator from a panel list made available by the AAA. If the parties are unable to agree to a mediator or arbitrator within ten (10) days of receipt of a demand for mediation or arbitration, the mediator or arbitrator will be chosen by alternatively striking from a list of five (5) mediators or arbitrators obtained by Employer from AAA. Executive shall have the first strike.

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IN WITNESS WHEREOF, the parties have executed this Agreement, in one or more counterparts which, taken together, shall constitute one agreement.

EMPLOYER:

PIKE ELECTRIC CORPORATION,
a Delaware corporation

 

 

 

 

 

 

 

 

 

By:  

/s/ James R. Fox  

 

 

 

Name:  

James R. Fox 

 

 

 

Title:  

General Counsel & Vice President of Risk Management 

 

 

EXECUTIVE:

 

 

 

 

 

 

 

 

 

By:  

/s/ J. Eric Pike  

 

 

 

Name:  

J. Eric Pike 

 

 

 

 

 

 

 

 

 

EX-10.2 4 c84790exv10w2.htm EXHIBIT 10.2

Exhibit 10.2

AMENDMENT AGREEMENT

THIS AMENDMENT AGREEMENT (the “Amendment”) is dated and effective as of the 1st day of May, 2009, by and among Pike Electric Corporation, a Delaware corporation (“Employer”) and J. Eric Pike, an individual domiciled in the State of North Carolina (“Executive”).

Statement of Purpose

The Employer and Executive entered into an Amended and Restated Employment Agreement dated September 24, 2008 (the “Employment Agreement”), and now desire to enter into this Amendment to amend certain provisions of the Employment Agreement as set forth herein.

NOW, THEREFORE, in consideration of the mutual promises made herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. Section 5.2 of the Employment Agreement is amended to insert the following sentence at end thereof:

“In the case of group health plan, if Executive is no longer eligible to participate in the plan, Employer may instead pay or reimburse Executive for the cost of COBRA coverage (and upon request Executive agrees to elect such coverage), and 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 Company 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.”

2. Section 6.5(b) of the Employment Agreement is amended by deleting the phrase “North America” and inserting in lieu thereof the phrase “the Restricted Territory (defined below)” and further amended by inserting the following sentence as a new sentence at the end of Section 6.5(b) of the Employment Agreement:

“As used in this Agreement, “Restricted Territory” means (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 the Company.”

 

 

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3. Section 10.7 of the Employment Agreement is amended and restated in its entirety to read as follows:

“This 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 North Carolina without regard to its choice of law or conflict of law principles; provided, that all matters with respect to Section 10.9 shall be governed by and construed under and in accordance with the laws of the State of Delaware.”

4. Section 10.9 of the Employment Agreement is amended and restated in its entirety to read as follows:

“(a) General. Subject to the limitations set forth in this Section 10.9, the Employer shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, Executive if Executive was or is made or is threatened to be made a party to or is otherwise involved in any pending, threatened or completed action, suit, arbitration, alternative dispute resolution proceeding, investigation, administrative hearing, or other proceeding, whether by or in the right of the Employer, any other Company, or any other person or entity, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that Executive is or was a director, officer, employee or agent of Employer or is or was serving at the request of the Employer as a director, officer, member, employee or agent of any other Company or other enterprise, including service with respect to employee benefit plans, against all cost, expense, liability and loss (including without limitation, attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by Executive or on Executive’s behalf in connection with any Proceeding and any appeal therefrom. Executive’s rights under this Section 10.9 shall continue after Executive has ceased acting as a director, officer, member, employee or agent of a Company and shall inure to the benefit of the heirs, executors and administrators of Executive. The Employer’s obligation to provide the indemnification set forth in this Section 10.9(a) shall be subject to Executive having acted in good faith and in a manner Executive reasonably believed to be in or not opposed to the best interests of any Company, and, with respect to any criminal action or proceeding, having had no reasonable cause to believe Executive’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Executive did not act in good faith and in a manner which Executive reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Executive’s conduct was unlawful.

(b) Advancement of Expenses. Subject to the limitations set forth in this Section 10.9, the Employer shall pay the reasonable expenses (including reasonable attorneys’ fees) incurred by Executive in defending any Proceeding in advance of its final disposition; provided, however, that such advancement of expenses shall be made only upon receipt of an undertaking by Executive, in a form approved by the Employer, to repay all amounts advanced if it shall ultimately be determined that Executive is not entitled to be indemnified therefor. Executive agrees to reimburse the Employer for all expenses advanced under this Section 10.9 in the event and only to the extent it shall ultimately be determined by a final adjudication that Executive is not entitled to be indemnified by the Employer for such expenses.

 

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(c) Claims for Indemnification or Advancement; Determination of Eligibility.

(i) Any claim by Executive for indemnification or advancement of expenses under this Agreement shall be made in a writing delivered to the Employer, setting forth in reasonable detail the basis for such indemnification or advancement and the amount requested, and accompanied by appropriate documentation to support the amount so requested (or, in the case of advancement of expenses to be incurred, the basis on which such amount is to be determined). A claim for advancement may include future expenses reasonably expected to be incurred, provided they are generally described in the claim, and provided that the Employer shall not be required to advance particular expenses covered by the claim until it has received appropriate substantiation that those expenses have been incurred and are appropriately included within the advances approved by the Employer pursuant to this Section 10.9(c).

(ii) Promptly upon its receipt of a written claim for advancement of expenses to which Executive is entitled hereunder, and within sixty days after its receipt of a written claim for indemnity to which Executive is entitled hereunder, the Employer shall pay such advancement (and any future related submissions for advancement of expenses as they are incurred) or such claim for indemnity in full to or as directed by Executive. If and to the extent it is required by law that the Employer make any particular determination as to Executive’s eligibility to receive such advancements or indemnity, or whether Executive has met the standards set forth in Section 10.9(a) hereof, the Employer shall make such determination as promptly as practicable in good faith and in accordance with such requirements of law, and in any event within sixty days after its receipt of the claim from Executive. In the event that the Employer fails to make such determination as to Executive’s eligibility, or makes a determination that Executive is ineligible for indemnification or advancement of expenses hereunder, within such sixty day period, then Executive may seek such determination from a court of competent jurisdiction. In any such proceeding, the Employer shall have the burden of proving that Executive was not entitled to the requested indemnification or advancement of expenses, and any prior determination by the Employer to the contrary shall be to no effect and shall not be given any weight by the court, it being the intention of the parties that any determination by the court as to Executive’s eligibility for and entitlement to indemnification or advancement of expenses hereunder shall be made de novo based upon the terms of this Agreement and the evidence presented to such court.

 

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(d) Limitations on Claims. In addition to the limitations on indemnification set forth in Section 10.9(a) above, the Employer shall not be obligated pursuant to this Agreement:

(i) To indemnify or advance expenses to Executive with respect to a Proceeding initiated by Executive, except (i) for Proceedings authorized or consented to by the Board of Directors of the Employer; or (ii) in the event a claim for indemnification or payment of expenses (including attorneys’ fees) made under this Agreement is not paid in full within sixty days after a written claim therefor has been received by the Employer, Executive may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim, including attorneys’ fees. In any such action, the Employer shall have the burden of proving that Executive was not entitled to the requested indemnification or payment of expenses under applicable law or this Agreement.

(ii) To indemnify Executive for any expenses incurred by Executive with respect to any Proceeding instituted by Executive to enforce or interpret this Agreement, unless Executive is successful in establishing Executive’s right to indemnification in such Proceeding, in whole or in part; provided, however, that nothing in this Section 10.9(d)(ii) is intended to limit the Employer’s obligation with respect to the advancement of expenses to Executive in connection with any Proceeding instituted by Executive to enforce or interpret this Agreement, as provided in Section 10.9(c) above.

(iii) To indemnify Executive in connection with proceedings or claims involving the enforcement of the provisions of this Agreement (other than as otherwise specifically provided for in this Section 10.9) or any other employment, severance or compensation plan or agreement that Executive may be a party to, or beneficiary of, with the Employer or any other Company.

(iv) To indemnify Executive on account of any proceeding with respect to which final judgment is rendered against Executive for payment or an accounting of profits arising from the purchase or sale by Executive of securities in violation of Section 16(b) of the Securities Exchange Act of 1934, as amended, any similar successor statute, or similar provisions of state statutory law or common law.

(e) Non-Exclusivity of Rights. The right conferred on Executive by this Section 10.9 shall not be exclusive of any other rights which Executive may have or hereafter acquire under any statute, provision of the Employer’s certificate of incorporation or bylaws, agreement, vote of stockholders or disinterested directors or otherwise, or under any insurance maintained by the Employer; but such rights in the aggregate shall not entitle Executive to duplicative multiple recoveries. No amendment or alteration of the Employer’s Certificate of Incorporation or Bylaws or any other agreement shall adversely affect the rights provided to Executive under this Section 10.9.

 

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(f) Savings Clause. If any provision or provisions of this Agreement shall be invalidated on any ground by any court of competent jurisdiction, then the Employer shall nevertheless indemnify Executive as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Employer, to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the full extent permitted by applicable law.”

5. Section 10.10 of the Employment Agreement is amended to add a new subsection (c) as set forth below:

“(c) The term “Company” means the Employer, its successors, designees and past, present and future operating companies, divisions, subsidiaries and affiliates. “

6. Sections 11.2., 11.3 and 11.4 of the Employment Agreement are amended and restated in their entirety to read as follows:

“11.2. Arbitration.

(a) In the event that a dispute is not settled through mediation pursuant to Section 11.1 (except with respect to disputes regarding Section 10.9 of this Agreement), the parties shall then proceed to binding arbitration before a panel of three impartial arbitrators unless the parties shall hereafter mutually agree in writing to have the arbitration conducted by a single arbitrator. The arbitrator(s) shall be selected in accordance with Section 11.4. The arbitration shall be governed by the rules of the AAA’s National Rules for the Resolution of Employment Disputes in effect on the date of the first notice of demand for arbitration.

(b) The arbitration hearing shall occur at a time and place convenient to the parties in Forsyth County, North Carolina, within thirty (30) days of the date of selection or appointment of the arbitrator(s). The arbitrator(s) shall issue written findings of fact and conclusions of law, and an award, within fifteen (15) days of the date of the hearing unless the parties otherwise agree. In conducting the arbitration and rendering its award, the arbitrator(s) shall give effect to the terms of this Agreement, including the choice of applicable law, shall give effect to any other agreement of the parties relating to the conduct of the arbitration, and shall give effect to applicable statutes of limitations.

(c) Any claim arising out of Section 10.9, including a claim by Executive for indemnification or advancement of expenses thereunder, shall be brought before the Court of Chancery of the State of Delaware, which shall have exclusive jurisdiction with respect thereto, and Executive hereby submits to the personal jurisdiction of and venue in such court in connection with any claim or dispute arising out of Section 10.9.

 

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11.3. Damages. The costs of the arbitration, including the fees and expenses of the arbitrators and of the AAA, shall be allocated to such parties as, and in such proportions as, the arbitrators shall determine to be just and equitable, which determination shall be set forth in the award. In cases of breach of contract or policy, damages shall be limited to contract damages. Judgment upon the award of the arbitrators may be entered by any court of competent jurisdiction.

11.4. Selection of Mediators or Arbitrators. The parties shall select the mediator or arbitrator(s) from a panel list made available by the AAA. If the parties are unable to agree to a mediator or arbitrator(s) within ten (10) days of receipt of a demand for mediation or arbitration, the mediator or arbitrator(s) will be chosen by alternatively striking from a list obtained by the Employer from AAA of five (5) mediators or fifteen (15) arbitrators, except that where a single arbitrator rather than a three person panel is agreed upon by the parties, the list shall be of five (5) arbitrators. Executive shall have the first strike.”

7. The Employment Agreement, as expressly or by necessary implication amended by this Amendment, shall remain in full force and effect, and this Amendment shall be deemed to be incorporated into the Employment Agreement and made a part thereof. This Amendment may be executed by facsimile or PDF and in counterparts, each of which, when so executed, shall be deemed an original, and all such counterparts together shall constitute one and the same instrument.

[signature page follows on next page.]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment, in one or more counterparts which, taken together, shall constitute one agreement.

 

 

 

 

 

 

EMPLOYER:

PIKE ELECTRIC CORPORATION,
a Delaware corporation
 

 

 

By:  

/s/ James R. Fox  

 

 

 

Name:  

James R. Fox 

 

 

 

Title:  

General Counsel & Vice President of Risk Management 

 

 

 

EXECUTIVE:
 

 

 

By:  

/s/ J. Eric Pike  

 

 

 

Name:  

J. Eric Pike