AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.2
THIS
AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Amendment”) is made and entered into
as of December 5, 2005, by and between METRETEK TECHNOLOGIES, INC., a Delaware corporation
(the “Corporation”), and A. XXXXXXX XXXXXXX (“Officer”).
Recitals
WHEREAS, the Corporation and Officer have previously entered into that certain Amended
and Restated Employment Agreement, dated as of November 1, 2004 (as the same may hereafter be
amended or otherwise modified from time to time, the “Employment Agreement”); and
WHEREAS, the Corporation and Officer now desire to amend the Employment Agreement in
order to modify the severance package of Officer upon the termination of Officer’s employment
with the Corporation;
Agreement
NOW, THEREFORE, in consideration of the premises 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:
Section 1. Amendments to Employment Agreement. Effective as of the date
hereof, the Employment Agreement shall be amended as provided in this Section 1.
(a) Amendments to Sections 2.2 through 2.8. Sections 2.2 through 2.8 of the
Employment Agreement are hereby amended to read in their entirety as follows:
“2.2 Death. Officer’s employment hereunder shall automatically
terminate upon his death, and the Corporation shall pay to his designated
beneficiaries (or, if none, to his estate) the pro rata portion of his Base
Salary and all other accrued and vested but unpaid compensation through the
date of his death, plus an amount equal to the Severance Amount (as such term
is defined below) computed and payable as provided in Section 2.12.
2.3 Disability. The Corporation shall have the right, in its sole
discretion, to terminate Officer’s employment hereunder in the event of
Officer’s “Disability” upon giving at least 30 days written notice to Officer
of its intention to terminate Officer’s employment. In such event, the
Corporation shall pay to Officer the pro rata portion of his Base Salary and
all other accrued and vested but unpaid compensation through the date of
termination, plus an amount equal to the Severance Amount computed and payable
as provided in Section 2.12. For purposes of this Agreement, “Disability”
means the physical or mental inability of Officer, due to illness,
accident or other incapacity, to effectively perform the essential functions
of his duties hereunder for any period of 90 consecutive days, or 180 days
during any twelve-month period, or which results from an incapacity determined
to be total and permanent as determined by an independent physician selected
by the Company.
2.4 By the Corporation for Cause. The Corporation shall have the
right, in its sole discretion, to terminate Officer’s employment hereunder at
any time for “Cause” immediately upon giving written notice of termination to
Officer. Upon his termination for Cause, Officer shall be entitled to receive
only the accrued but unpaid portion of his Base Salary through the date of
termination, plus any accrued and vested but unpaid bonuses and other
compensation as of such date, but Officer shall not be entitled to any other
bonus or incentive compensation for the fiscal year in which he was
terminated. In addition, any unvested portion of any option to purchase
shares of common stock, par value $.01 per share, of the Corporation (the
“Stock Options”) shall expire without vesting. Officer shall have no right to
receive any other or further compensation or benefits. For purposes of this
Agreement, “Cause” means only the following:
(a) The failure or refusal by Officer to perform any of his duties
hereunder, or the breach by Officer of any of his obligations, covenants,
representations, warranties or acknowledgments hereunder, which failure,
refusal or breach remains unremedied or uncured for a period of twenty (20)
business days after specific written notice thereof is given to Officer by the
Board or the Chairman;
(b) Any act of dishonesty, disloyalty, insubordination, fraud, breach of
fiduciary duty or bad faith by Officer that is materially detrimental to the
Corporation or that results in substantial personal enrichment of Officer; or
(c) The conviction of Officer, or the entering of a guilty plea or a plea
of no contest by Officer with respect to (i) a felony, or (ii) a misdemeanor
that involves theft, fraud or dishonesty, results in Officer’s imprisonment or
impairs Officer’s ability to perform his duties hereunder or damages the
reputation or business of the Company.
2.5 By the Corporation Without Cause. The Corporation shall have the
right, in its sole discretion, to terminate Officer’s employment hereunder at
any time effective upon the giving of written notice of such termination to
Officer (or at such later date as the notice provides). In such event,
Officer shall be entitled to receive the following: (a) all amounts of the
Base Salary and any bonuses and other earned but unpaid compensation that are
earned, accrued or vested but unpaid through the date of termination; (b) an
amount equal to the Severance Amount, computed and payable as provided in
Section 2.12; and (c) any rights and benefits of any of the employee benefits
earned, accrued or vested (including under any plans in which he was
participating) as of the date of such termination, subject to the terms and
conditions of such plans and benefits, but Officer shall not attain vested
status in any plans or benefits in which he is not vested on the date of
termination.
2.7 Termination by Officer. Officer agrees not to voluntarily
terminate his employment hereunder except by giving at least sixty (60) days
written notice to the Company, except as provided in Section 2.8. Upon such
voluntary
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termination by Officer, Officer shall be entitled to receive the following:
(a) the accrued but unpaid portion of his Base Salary and any bonuses and
other compensation that are earned, accrued or vested but unpaid through the
date of termination; (b) an amount equal to the Severance Amount, computed and
payable as provided in Section 2.12; and (c) any rights and benefits of any of
the employee benefits earned, accrued or vested (including under any plans in
which he was participating) as of the date of such termination, subject to the
terms and conditions of such plans and benefits, but Officer shall not attain
vested status in any plans or benefits in which he is not vested on the date
of termination.
2.8 Compensation Upon Termination of Employment Following a Change in
Control.
(a) Amount of Compensation. If, during the Employment Term, a
“Change in Control” (as defined below) of either the Corporation or Metretek
occurs, and within three years after such date the Corporation shall terminate
Officer’s employment without “Cause” or the employment of Officer shall be
terminated by Officer for “Good Reason” (as defined in below), then:
(i) The Corporation shall pay to Officer in a lump sum in cash within 30
days after the date of termination the aggregate of the following amounts:
(A) To the extent not theretofore paid, the Base Salary through the date
of termination at the rate in effect on the date the notice of termination was
given along with any earned but unpaid bonuses or other compensation; and
(B) the Severance Amount; and
(C) In the case of compensation previously deferred by Officer, all
amounts of such compensation previously deferred and not yet paid by the
Company; and
(ii) The Corporation shall, promptly upon submission by Officer of
supporting documentation, pay or reimburse to Officer all costs and expenses
paid or incurred by Officer prior to the date of termination which would have
been payable under this Agreement if Officer’s employment had not terminated;
and
(iii) For a period of two years from the date of termination, Officer and
his family shall be permitted to continue to participate in all life,
accidental death, disability, medical, dental and other insurance plans of the
Company. If, despite the provisions of this Section 2.8, benefits shall not
be available under any of such plans because Officer is no longer an employee
of the Company, then the Corporation itself shall, to the extent necessary,
pay or provide for payment of benefits to Officer and/or Officer’s family, or
where applicable, pay or provide to Officer and/or Officer’s family the
difference between the benefits payable pursuant to this Section 2.8 and the
benefits actually payable
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pursuant to the terms of such plans, in each case at the time such payments
would be payable pursuant to the terms of such plans, programs and policies.
(b) Definition of Change in Control. For the purpose of this
Agreement, a “Change in Control” of the shall be deemed to have occurred only
if:
(i) Any person or group (as such terms are used in Sections 13 (d) (3)
and 14 (d) (2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) acquires the beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act), directly or indirectly, of 50% or
more of the aggregate voting power of all classes of the Corporation’s then
outstanding voting securities entitled to vote generally in the election of
directors of the Corporation; provided, however, that the following
acquisitions shall not constitute a Change in Control: (I) any acquisition
directly from the Corporation (excluding an acquisition by virtue of the
exercise of a conversion privilege), (II) any acquisition by the Corporation
or any subsidiary of the Corporation, or (III) any acquisition by any employee
benefit plan (or related trust) for employees or any subsidiary of the
Corporation; or
(ii) Individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the “Board” generally, and as of the date
hereof, the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election by the
Corporation’s stockholders, was approved by a vote of at least three-fifths of
the directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Corporation, as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) shall be, for
purposes of this Agreement, considered as though such individual were a member
of the Incumbent Board; or
(iii) Approval by the Corporation of a reorganization, merger,
combination, or consolidation, in each case, unless, following such
reorganization, merger, combination, or consolidation, (A) more than 50% of,
respectively, the then outstanding shares of common stock of the corporation
or other entity resulting from such reorganization, merger, combination or
consolidation and the aggregate voting power of the then outstanding voting
securities of the resulting corporation or other entity entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the outstanding Common Stock and
outstanding voting securities of the Corporation immediately prior to such
reorganization, merger, combination, or consolidation, in substantially the
same proportion as their ownership immediately prior to such reorganization,
merger, combination, or consolidation, and (B) at least a majority of the
members of the board of directors of the corporation or other entity resulting
from such reorganization, merger, combination or consolidation were members of
the Incumbent Board at the time of the execution of the initial agreement
providing for such reorganization, merger, combination or consolidation; or
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(iv) Approval by the Corporation of the sale or other disposition of all
or substantially all of the assets of the Corporation, other than to a
corporation or other entity with respect to which following such sale or other
disposition the conditions described in clauses (A) and (B) of Section
2.8(b)(iii) are satisfied.
(c) Definition of Good Reason. For purposes of this
Agreement, “Good Reason” means:
(i) (A) The assignment to Officer of any position, authority, duties or
responsibilities inconsistent in any respect with Officer’s position
(including, without limitation, status, offices, title and reporting
requirements), authority, duties or responsibilities, prior to the Change in
Control, or (B) any other action by the Corporation which results in a
diminution in such position, authority, duties or responsibilities, other than
an insubstantial and inadvertent action which is remedied by the Corporation
promptly after receipt of notice thereof given by Officer;
(ii) Any reduction in Officer’s Base Salary or in the extent of Officer’s
entitlement to the employee benefits, expenses, fringe benefits or perquisites
referred to in Section 3;
(iii) The Corporation’s requiring Officer to be based at an office
location or to maintain his personal residence other than where it is on the
date of the Change in Control;
(iv) The failure of the Corporation to obtain a satisfactory agreement
from any successor to the Corporation to assume and agree to perform this
Agreement;
(v) The imposition on Officer of business travel obligations
substantially greater than his business travel obligations during the fiscal
year prior to the Change in Control;
(vi) Any purported termination by the Corporation of Officer’s employment
other than as expressly permitted by this Agreement; or
(vii) Any other failure by the Corporation to comply with any
provision of this Agreement, other than an insubstantial and inadvertent
failure which is remedied by the Corporation promptly after receipt of notice
thereof given by Officer.”
(b) Additions of Sections 2.9 through 2.12. Sections 2.9 through 2.12 shall be
added to the Employment Agreement to read in their entirety as follows:
“2.9 Expiration of Employment Term. In the event of the expiration of
the Employment Term (including any renewal or extension period hereunder)
without further renewal or extension, Officer shall be entitled to receive (a)
all amounts of the Base Salary and any bonuses and other compensation earned,
accrued or vested but unpaid through the date of expiration, (b) the Severance
Amount,
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computed and payable as provided in Section 2.12, and (c) any rights and
benefits of any of the employee benefits earned, accrued or vested (including
under any plans in which he was participating) as of the date of such
termination, subject to the terms and conditions of such plans and benefits,
but Officer shall not attain vested status in any plans or benefits in which
he is not vested on the date of termination.
2.10 No Further Obligation to Officer. The payments and benefits (if
any) required to be made or provided to Officer pursuant to this Section 2
shall be in full and complete satisfaction of, and shall constitute the full
settlement and release of the Corporation by Officer with regard to, all
obligations of the Corporation owed to Officer pursuant to this Agreement.
After the date of termination of Officer’s employment hereunder, the
Corporation shall have no further obligations to Officer under this Agreement
except as otherwise set forth herein.
2.11 Survival of Officer’s Obligations. Notwithstanding the
termination of this Agreement by either party hereto for any reason, the
obligations of Officer under Section 6 and the other provisions thereof shall
survive the termination or expiration of this Agreement or Officer’s
employment hereunder and shall remain in full force and effect for the period
provided therein.
2.12 Computation and Payment of Severance Amount. For purposes of this
Agreement, the term “Severance Amount” shall mean an amount equal to two (2)
times the sum of the following: (i) the Base Salary of Officer as in effect on
the date Officer’s employment terminates, plus (ii) the average of bonus
awarded to Officer for the three fiscal years of the Corporation immediately
preceding the fiscal year in which Officer’s employment is terminated (or, if
the average bonus is greater, for the last three fiscal years of the
Corporation including the fiscal year in which Officer’s employment is
terminated). The Severance Amount shall be payable in approximately equal
installments in accordance with the Company’s customary payroll practices over
the two (2) years following the termination of Officer’s employment
hereunder.”
(c) Deletion of Section 3.4. Section 3.4 of the Employment Agreement shall be
deleted in its entirety.
(d)
Amendment to
Section 6. The phrase “eighteen (18) months”
in the first sentence of Section 6 shall be replaced with the
phrase “two (2) years”.
Section 2. Effect of Amendment. Except as and to the extent expressly
modified by this Amendment, the Employment Agreement shall remain in full force and effect in
all respects in accordance with its terms, and any reference to the Employment Agreement from
and after the date hereof shall be deemed to be a reference to the Employment Agreement as
modified by this Amendment.
Section 3. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Colorado.
Section 4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which taken
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank—Next Page is the Signature Page]
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IN WITNESS WHEREOF, this Amendment No. 1 to Amended and Restated Employment Agreement
has been duly executed and delivered by or on behalf of the undersigned as of the date first
written above.
| CORPORATION: METRETEK TECHNOLOGIES , INC. |
||||
| By: | /s/ W. Xxxxxxx Xxxxxx | |||
| W. Xxxxxxx Xxxxxx, President | ||||
|
Attest: |
||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx, Chairman, Compensation | ||||
| Committee of the Board of Directors | ||||
| OFFICER: |
||||
| /s/ A. Xxxxxxx Xxxxxxx | ||||
| A. Xxxxxxx Xxxxxxx | ||||
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