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EXECUTION
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EXHIBIT 10.17
EMPLOYMENT AND NON-COMPETITION AGREEMENT
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THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (this "Agreement") is
made and entered into as of the 17th day of March, 2000 by and between
PowerSpring Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx,
an individual who resides in Colorado (the "Employee").
W I T N E S S E T H:
WHEREAS, Employee was the President, a director and the sole
shareholder of Mercator Energy Incorporated, a Colorado corporation
("Mercator"); and
WHEREAS, Employee and Mercator have entered into an Agreement and Plan
of Merger, of even date herewith (the "Merger Agreement"), with the Company and
a subsidiary of the Company, pursuant to which the Company has agreed to acquire
Mercator through a merger with a subsidiary of the Company (the "Merger"); and
WHEREAS, the Company desires to continue to utilize the skills and
expertise of Employee after the closing of the Merger Agreement; and
WHEREAS, the execution and delivery of this Agreement and the terms and
conditions hereof, including the restrictive covenants as to Employee, are a
condition to the closing of the Merger Agreement; and
WHEREAS, the Company desires to employ Employee, and Employee desires
to serve the Company, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and Employee, intending to be legally bound hereby, agree as follows:
SECTION 1. EMPLOYMENT. The Company hereby employs Employee, and
Employee hereby accepts such employment and agrees to serve the Company, upon
the terms and subject to the conditions set forth herein.
SECTION 2. TERM. The term of Employee's employment hereunder shall
commence on the date first above written and shall expire two years from such
date, unless earlier terminated in accordance with the provisions of Section 5.
In the event that this Agreement has not been earlier terminated in accordance
with the provisions of Section 5, the term of Employee's employment hereunder
shall be automatically extended without further action by the Company or
Employee for additional successive one-year periods unless either party, for any
reason or no reason, shall have given written notice of termination to the other
party no less than thirty (30) days prior to the commencement of any one-year
extension period. The term of Employee's employment hereunder is sometimes
hereinafter referred to as the "Employment Term."
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SECTION 3. DUTIES OF EMPLOYEE.
(a) GENERAL DUTIES AND RESPONSIBILITIES. During and throughout
the Employment Term, Employee shall faithfully and diligently, to the
best of his ability, serve as the Executive Vice President and Chief
Operating Officer and a member of the Board of Directors of the
Company, or in such other or additional offices or capacities and with
such other titles and duties as shall be designated by the Company's
Board of Directors (the "Board") during the Employment Term, shall have
the authority and perform the duties and responsibilities customary for
such office or offices, and shall have such other duties as may be
assigned to him from time to time by the Board, or by the Chairman of
the Board, the Chief Executive Officer or the President of the Company
(each, a "Senior Officer"). Employee shall perform his duties hereunder
in accordance with the policies from time to time established and
amended by the Company and in accordance with all applicable laws and
regulations. Employee shall use his best efforts to promote the best
interests of the Company. Employee shall have the specific right to
hire and fire Xxxxx Xxxxxx and Xxxxx X. Xxxx and their respective
successors. Otherwise, Employee shall always be subject to the
direction, approval and control of the Board and the Senior Officers.
Employee acknowledges and agrees that he may be required by the
Company, without additional compensation, to perform services for any
other Entity controlling, controlled by, under common control with or
otherwise affiliated with, the Company (any such Entity hereinafter
referred to as an "Affiliate"), and to accept such office or position
with any Affiliate as the Board may reasonably require, including but
not limited to service as an officer and/or director of an Affiliate.
(b) PERFORMANCE OF SERVICES. During and throughout the
Employment Term, Employee shall devote his full time, attention, skill,
ability and energy during normal business hours (and outside such hours
when reasonably necessary to perform Employee's duties hereunder)
exclusively to the business and affairs of the Company and the
performance of his duties under this Agreement.
(c) PLACE OF EMPLOYMENT. Employee shall perform his services
hereunder at the Company's principal executive offices in Denver,
Colorado or at such other location as mutually agreed with the Board;
provided, however, that Employee agrees to undertake all reasonable
travel required by the Company to be conducted in connection with the
business of the Company and the performance of Employee's duties
hereunder.
SECTION 4. COMPENSATION. During and throughout the Employment Term, as
compensation for the services performed and other covenants made by Employee to
the Company hereunder, the Company shall pay and provide or cause to be provided
to Employee the following:
(a) SALARY. The Company shall pay Employee a base salary of
not less than $175,000 per year (the "Salary"), payable in
approximately equal installments in accordance with the Company's
customary payroll practices. Employee's Salary may be reviewed by or
under the authority of the Board and may be increased at the sole
discretion of the Board or its designee (although the Board has no
obligation to do so) based upon whatever factors the Board or its
designee deems appropriate including, but not limited to, Employee's
individual performance, the overall performance, profitability and
prospects of the Company and prevailing economic and industry factors.
(b) BONUS AND OPTION PROGRAMS. If the Company shall adopt a
bonus program, an option program or any other form of equity or
profit-sharing participation for senior executive officers of the
Company, Employee shall be eligible to participate in such program in a
manner and capacity commensurate with his position and duties. Subject
to Board approval, Employee shall be entitled to
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receive options to purchase 200,000 shares of Common Stock, par value
$.01 per share, of the Company, exercisable at the fair market value
thereof on the same date the grants of stock options are first made to
other executive officers of the Company, on the same terms and
conditions as such stock options are made to such other executive
officers, except that, at the direction of Employee, up to one-half of
such stock options shall be non-qualified stock option, transferable to
family members and Entities owned or controlled by family members.
(c) EMPLOYEE BENEFIT PLANS. Employee shall be entitled to
participate in all pension, 401(k), retirement, life, disability and
health insurance, hospitalization, major medical and other the employee
benefit plans and arrangements, if any (as in effect and as amended
from time to time), to the extent that his position, tenure, salary,
age, health and other qualifications make his eligible to participate,
generally made available by the Company to comparable level employees,
subject to and on a basis consistent with the terms, rules and
regulations, conditions and overall administration of such plans and
arrangements. Notwithstanding the foregoing sentence, the Company may
discontinue at any time any such the employee benefit plan or
arrangement, to the extent permitted by the terms of such plans or
arrangements, and shall not be required to compensate Employee for the
elimination of any such employee benefit plans or arrangements.
(d) EXPENSES. The Company shall, upon presentment by Employee
of appropriate receipts and vouchers therefor, reimburse Employee for
all reasonable, ordinary and necessary out-of-pocket business expenses
incurred by Employee in connection with the performance of his duties
under this Agreement, provided that such expenses are incurred and
accounted for in accordance with and subject to the normal policies and
procedures of the Company.
(e) VACATION. Employee shall be entitled to reasonable paid
vacation time in accordance with the policies of the Company applicable
to executive officers of the Company.
(f) METRETEK OPTIONS.Because the Company is a subsidiary of
Metretek Technologies, Inc., a Delaware corporation ("Metretek"),
employees of the Company are eligible to receive stock options under
the Metretek 1998 Stock Incentive Plan. In consideration in part for
inducing Employee to enter into this Agreement and for his services
hereunder, the Company shall cause Metretek to grant to Employee an
option (the "Metretek Option") to purchase 60,000 shares of Common
Stock, par value $.01 per share ("Metretek Common Stock"), of Metretek,
with an exercise price equal to 110% of the last sale price of the
Metretek Common Stock as reported on the Nasdaq National Market on the
date hereof. The Metretek Option shall vest in three equal
installments: one-third on the date hereof, one-third in six months and
one-third in eighteen months.
SECTION 5. TERMINATION OF EMPLOYMENT. Notwithstanding Section 2 hereof,
the Employment Term and Employee's employment hereunder shall terminate as
follows:
(a) DEATH. Employee's employment hereunder shall automatically
terminate upon his death, and the Company shall pay to his designated
beneficiary (or, if none, to his estate) the pro rata portion of his
Salary and all other accrued and vested but unpaid compensation through
the date of his death.
(b) DISABILITY. The Company shall have the right, in its sole
discretion, to terminate Employee's employment hereunder in the event
of Employee's "Disability" upon giving at least 30 days written notice
to Employee of its intention to terminate Employee's employment. For
purposes of this Agreement, "Disability" means the physical or mental
inability of Employee, due to illness, accident or
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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.
(c) BY THE COMPANY FOR CAUSE. The Company shall have the
right, in its sole discretion, to terminate Employee's employment
hereunder at any time for "Cause" immediately upon giving written
notice of termination to Employee. Upon termination for Cause, Employee
shall be entitled to receive only the accrued but unpaid portion of his
Salary through the date of termination, plus any accrued and vested but
unpaid compensation as of such date, but Employee shall not be entitled
to any bonus or incentive compensation for the year in which he was
terminated. Employee shall have no right to receive any other or
further compensation or benefits. For purposes of this Agreement,
"Cause" includes the following:
(i) The failure or refusal by Employee to perform any
of his duties hereunder, or the breach by Employee of any of
his obligations, covenants, representations, warranties or
acknowledgments hereunder, which failure, refusal or breach
remains unremedied or uncured for a period of 15 days after
specific written notice thereof is given to Employee by the
Board or any Senior Officer;
(ii) Any act of dishonesty, disloyalty,
insubordination, fraud, breach of fiduciary duty or bad faith
by Employee that is materially detrimental to the Company or
that results in substantial personal enrichment of Employee;
(iii) The conviction of Employee, or the entering of
a guilty plea or a plea of no contest by Employee with respect
to (A) a felony, or (B) a misdemeanor that involves theft,
fraud or dishonesty, results in Employee's imprisonment or
impairs Employee's ability to perform his duties hereunder or
damages the reputation or business of the Company;
(iv) Except as authorized by the Board or by any
Senior Officer, the failure of Employee to comply with any
applicable law, rule, regulation or any order, injunction,
ruling or similar decree of any court, arbitrator or
governmental authority which results in material injury to the
property, business, operations or reputation of the Company;
(v) The misappropriation (or attempted
misappropriation) or embezzlement by Employee of any funds,
property, business opportunity or rights of the Company,
including securing (or attempting to secure) any personal
profit in connection with any transaction entered into on
behalf of the Company without the prior consent of the Board;
(vi) The breach by Employee of, or failure or refusal
of Employee to adhere to, any written code of conduct, policy
or instructions of the Company applicable to executive
officers of the Company that is not remedied by Employee
within twenty (20) business days after receipt of notice
thereof given by the Company;
(vii) The use by Employee of drugs, alcohol or
narcotics which interferes with the performance of Employee's
duties and responsibilities under this Agreement;
(viii) The excessive absence by Employee unrelated to
illness or permitted leave time; or
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(ix) Gross dereliction, misconduct, neglect,
incompetence or insubordination of Employee or mismanagement
by Employee in connection with Employee's duties or
responsibilities hereunder.
(d) BY THE COMPANY WITHOUT CAUSE. The Company shall have the
right, in its sole discretion, to terminate Employee's employment
hereunder at any time effective upon the giving of written notice of
such termination to Employee (or at such later date as the notice
provides). In such event, Employee shall be entitled to receive (i) all
amounts of Salary and bonuses accrued but unpaid through the date of
termination, (ii) an amount equal to the Salary at the rate in effect
on the date of termination for a period the shorter of twelve months or
the remainder of the Employment Term, (iii) any rights and benefits of
any of the employee benefits accruing to him (including 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 Employee
shall not attain vested status in any plans or benefits in which he is
not vested on the date of termination (except as provided in clause
(iv) below), and (iv) the Metretek Option shall immediately vest and
become exercisable and remain exercisable for the periods set forth in
the Metretek Option. In the event of the termination of Employee's
employment hereunder by the Company without Cause, Employee shall use
his best efforts to mitigate the amounts payable under this Section
5(d) hereof by seeking other employment; provided, however, that
Employee shall not be required to accept a position: (i) of
substantially different character than the position held by Employee
with the Company during the Employment Term, or (ii) that might
reasonably be expected to by result in a violation by Employee of the
provisions of Section 6. To the extent that Employee shall receive
compensation and benefits from such other employment for services
rendered during the remainder of the Employment Term computed without
regard to the termination, the payments and benefits to be made or
provided by or at the direction of the Company under the provisions of
this Section 5(d) shall be correspondingly reduced.
(e) VOLUNTARY TERMINATION BY EMPLOYEE. Employee agrees not to
voluntarily terminate his employment hereunder except by giving at
least 60 days written notice to the Company. Upon such voluntary
termination by Employee, Employee shall be entitled to receive only the
accrued but unpaid portion of his Salary (but not any bonus) through
the date of termination and the accrued and vested rights and benefits
under any Employee benefits plan which he was entitled to receive at
the date of such termination, subject to the terms and conditions of
such plans.
(f) UPON MERGER, ACQUISITION OR CHANGE IN CONTROL OF THE
COMPANY. Neither this Agreement nor Employee's employment hereunder
shall terminate solely by reason of any sale of assets or capital stock
of the Company, or any merger or consolidation or change in control of
the Company, if Employee is offered employment with the resulting,
survivor or successor entity on terms and conditions, in the aggregate,
not materially less favorable to Employee than the terms of this
Agreement.
(g) NO FURTHER OBLIGATION TO EMPLOYEE. The payments and
benefits (if any) required to be made or provided to Employee pursuant
to this Section 5 shall be in full and complete satisfaction of, and
shall constitute the full settlement and release of the Company by
Employee with regard to all obligations of the Company owed to Employee
pursuant to this Agreement. After the date of termination of Employee's
employment hereunder, the Company shall have no further obligations to
Employee under this Agreement except as otherwise set forth herein.
(h) SURVIVAL OF EMPLOYEE'S OBLIGATIONS. Notwithstanding the
termination of this Agreement by either party hereto for any reason,
the obligations of Employee under Section 6 hereof and
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the other provisions thereof shall survive the termination or
expiration of this Agreement or Employee's employment hereunder and
shall remain in full force and effect for the period provided therein.
SECTION 6. COVENANTS. In consideration in part for the compensation to
be paid to Employee hereunder by the Company, and in order to induce the Company
to enter into this Agreement and the Stock Purchase Agreement, Employee hereby
makes the following covenants to the Company:
(a) COVENANT NOT TO COMPETE. During the Employment Term and
for a period of one year thereafter (the "Restricted Period"), Employee
shall not, directly or indirectly, alone or in association with others,
whether as owner, shareholder, employee, officer, director, partner,
manager, member, lender, investor, consultant, principal, agent,
independent contractor, co-venturer or in any other capacity, invest
in, engage in, have a financial interest in, be in any other way
connected or affiliated with, or render advice or service to, any
Person that is in competition with the Company in the United States or
in any other country in which the Company does a material amount of
business or otherwise has material operations.
(i) COMPETITION WITH THE COMPANY. For purposes of
this Agreement, (A) the phrase "in competition with the
Company" shall be deemed to include competition with the
Company and its subsidiaries and Affiliates, or their
respective successors or assigns, or the businesses of any of
them, and (B) a business shall be deemed to be in competition
with the Company if it is engaged in any business activity or
has products or services that are the same or similar to the
business activities, products or services of the Company
during the Employment Term. Notwithstanding the foregoing,
nothing herein contained shall prevent Employee from acquiring
and holding for investment up to two percent (2%) of any class
of securities of any corporation, if such securities are
listed or traded on a national securities exchange or the
Nasdaq Stock Market or in the over-the-counter market.
(ii) INTERPRETATION OF COVENANT. The parties hereto
acknowledge and agree that the duration and area for which the
covenant not to compete set forth in this Section 6(a) is to
be effective are fair and reasonable and are reasonably
necessary for the protection of the Company and its business
and good will, and Employee hereby waives any objections to or
defenses in respect thereof. In the event that any court
determines that any portion of the time period or the area, or
both of them, are unreasonable, arbitrary or against public
policy, and that such covenant is to such extent
unenforceable, illegal or invalid, the parties hereto agree
that this Section 6(a) shall be deemed amended to delete
therefrom such provisions or portions adjudicated to be
unenforceable, illegal or invalid so that the covenant shall
remain in full force and effect for the greatest time period
and in the greatest geographical area that would render it
enforceable, legal and valid. The parties intend that the
covenant set forth in the Section 6(a) shall be deemed to be a
series of separate covenants, one for each and every county of
each and every state of the United States of America and one
for each and every political subdivision of each and every
other country where the covenant is intended to be effective
and is not proscribed by law.
(b) COVENANT REGARDING DISCLOSURE OR USE OF CONFIDENTIAL
INFORMATION.
(i) Employee acknowledges that during the Employment
Term and as a result of his employment by the Company, he will
learn, obtain and have access to confidential and proprietary
information regarding the business and affairs of the Company
and its Affiliates. Employee hereby agrees that at all times
during and after the Employment Term he shall keep strictly
confidential and hold in confidence all Confidential
Information (as defined below), and shall not, directly or
indirectly, use any Confidential Information for Employee's
own benefit or for the benefit of any other Person or divulge,
disclose, communicate or otherwise reveal any Confidential
Information to any Person in any manner
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whatsoever, other than to the directors, employees and agents
of the Company, and then only in the course of the Company's
affairs to the extent necessary for them to perform services
to and responsibilities on behalf of the Company.
(ii) As used herein, "Confidential Information" means
any and all information, however documented, which is
confidential property or otherwise non-public, related to the
business and affairs of the Company and its Affiliates,
including, but not limited to, their assets, properties,
operations, finances, practices, procedures, policies,
methods, contracts, agreements and arrangements, lending
policies, pricing policies, price lists, financial plans,
business plans, financial information, financial projections,
budgets, marketing strategies and techniques; the identity and
location of all past, present and prospective customers,
suppliers, affiliates, debtors, creditors, lenders, employees,
consultants, advisors, agents, distributors, wholesalers,
clients and others who have dealings with the Company; trade
secrets, processes, photographs, graphics, product
specifications, formulas, compositions, samples, inventions,
ideas, research and development; patents, patent applications;
copyrights and copyright applications (in any such case,
whether registered or to be registered in the United States or
any foreign country) applied for, issued to or owned by the
Company; any and all processes, computer programs and software
(including object code and source codes, database,
technologies, engineering or technical data, drawings,
sketches or designs, manufacturing or distribution methods or
techniques; and any other information known to Employee to be
confidential, proprietary, secret or otherwise non-public
information.
(iii) Employee hereby acknowledges and agrees that,
as between the Company and Employee, all of the Confidential
Information, however documented, whether or not developed,
created or modified by Employee, is the exclusive property of
the Company.
(iv) Upon the termination or expiration of the
Employment Term, Employee shall leave with or return to the
Company, without making or retaining any copies, or other
records of, all Confidential Information including all copies,
summaries, abstracts thereof and all memoranda, notes,
records, reports, books, letters, customer lists, manuals and
other writings or documents whatsoever pertaining thereto.
Notwithstanding the foregoing, as used herein "Confidential
Information" does not mean or include any information that is
generally available to the public other than as a result of a
direct or indirect disclosure by Employee.
(c) COVENANTS REGARDING BUSINESS RELATIONSHIPS. Employee
agrees that during and throughout the Employment Term and the
Restricted Period, except when acting on behalf of the Company, he
shall not, directly or indirectly, (i) employ, solicit, induce, engage
or cause any director, officer, employee, independent contractor,
consultant, salesman or other agent of the Company (whether now or
hereafter engaged by the Company) to (A) terminate his employment or
engagement with the Company, (B) accept employment or engagement or
otherwise render services to any other Person or business (wherever
located, and regardless of type of business conducted), or (C)
interfere with the business of the Company; or (ii) solicit any clients
or customers of the Company or interfere in any business relationship
between the Company and any other person, firm or entity, including any
person who was at any time an employee, consultant, contractor,
advisor, supplier, lender or customer of the Company. Employee shall
not, at any time during or after the Employment Term, disparage the
business reputation of the Company or any of its shareholders,
directors, officers, employees or agents or take actions that are
harmful to the Company's good will with others.
(d) INTELLECTUAL PROPERTY. During and throughout the
Employment Term and the Restricted Period, Employee agrees to disclose
to the Company any and all ideas, improvements, techniques,
modifications, processes, inventions, developments, discoveries, trade
secrets, trademarks,
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service marks, copy rights, trade names, business plans and any work of
authorship ("Intellectual Property") developed, conceived, created,
made, devised, discovered, acquired or acquired knowledge of, by
Employee during the Employment Period, either by himself or in
conjunction with any other person, which relates in any way, directly
or indirectly, or may be useful in any manner in the business of the
Company or its Affiliates, and any such item that is based upon or
utilizes Confidential Information, whether or not the Company or its
Affiliates obtains a patent, trademark, service xxxx or copyright
thereon. Employee hereby agrees that the Intellectual Property shall
become and remain the sole and exclusive property of the Company.
Employee hereby acknowledges that all of Employee's writing, works of
authorship and other Intellectual Property are works made for hire and
the property of the Company, including patents, trademarks, service
marks, copyrights and other intellectual property rights pertaining
thereto. Employee shall, at the request and cost of the Company or any
of its Affiliates, render assistance as the Company deems necessary or
desirable to secure, prosecute and/or defend the rights thereto by
patent, trademark, service xxxx, copyright to otherwise to the Company
or its Affiliates, including without limitation the assignment,
transfer and conveyance to the Company or its Affiliates of all of
Employee's right, title and interest in and to the Intellectual
Property.
(e) EMPLOYEE'S ACKNOWLEDGMENT. The Company spends considerable
amounts of time, money and effort in developing and maintaining good
will in its industry. Employee agrees the covenants contained within
this Section 6 (i) are reasonable and necessary in all respects to
protect the goodwill, trade secrets, confidential information, and
business interests of the Company; (ii) are not oppressive to Employee;
(iii) do not impose any greater restraint on Employee than is
reasonably necessary to protect the goodwill, trade secrets,
confidential information and legitimate business interests of the
Company; and (iv) will not, upon the termination, of Employee's
employment with the Company for any reason whatsoever, cause Employee
to be unable to earn a living that is suitable and acceptable to
Employee.
(f) EQUITABLE RELIEF.Employee hereby acknowledges and agrees
that his services to be rendered to the Company hereunder and his
obligations contained in this Section 6 are of special, unique and
personal character which gives them a peculiar value to the Company,
that the Company cannot be reasonably or adequately compensated in
money damages in an action at law in the event Employee breaches any
obligations under this Section 6, and that the provisions of this
Section 6 are reasonable and necessary to protect the business of the
Company. Employee therefore expressly agrees that, in addition to any
other rights or remedies which the Company may have at law or in equity
or by reason of any other agreement, the Company shall be entitled to
injunctive and other equitable relief in the form of temporary,
preliminary and permanent injunctions without posting bond or other
security in the event of any actual or threatened breach of any such
obligation by Employee and without the necessity of proving actual
damages, and to discontinue any salary, bonus, benefits and/or
insurance continuation provided hereunder. Nothing in this Agreement
shall be construed to prohibit the Company from pursuing any other
remedy, and Employee agrees that all remedies of the Company are
cumulative.
(g) NATURE OF COVENANTS. Employee's covenants in Section 6
hereof are independent covenants, and the existence of any claim by
Employee against the Company under this Agreement or otherwise will not
excuse Employee's breach or waive Employee's obligation to perform, any
covenant in this Section 6. If Employee's employment hereunder
terminates for any reason, or the Employment Term expires, this Section
6, and the other terms and conditions of this Agreement necessary or
appropriate to enforce the covenants of Employee in Section 6, shall
survive and remain in full force and effect.
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. Employee
represents and warrants to the Company that (a) Employee is under no contractual
or other restriction, arrangement or obligation which is or will be breached by
or in conflict or inconsistent with his execution and delivery of this
Agreement, the performance of his duties hereunder, or the other rights of the
Company hereunder, and (b) Employee is under no physical or mental disability or
incapacity that would hinder the performance of his duties under this Agreement.
SECTION 8. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this
Agreement shall preclude the Company from consolidating with, merging into, or
transferring all or substantially all of its assets to another entity which
assumes all of the Company's obligations and undertakings hereunder. Upon such a
consolidation, merger or transfer of assets, the term "Company" as used herein
shall mean such other entity, and this Agreement shall continue in full force
and effect.
SECTION 9. EMPLOYEE ACKNOWLEDGMENT; COUNSEL. Employee acknowledges by
executing this Agreement and delivering it to the Company that (i) he has read
all of the terms and conditions hereof, including his obligations, covenants,
representations and warranties to the Company; (ii) the covenants of Employee in
Section 6 hereof are essential elements of this Agreement, and the Company would
not have entered into this Agreement or the Stock Purchase Agreement without
Employee's agreement to comply with such covenants; (iii) each and every term,
covenant and restriction is reasonable and necessary for the proper protection
of the Company's business; and (iv) he has been advised by the Company that he
should consult with independent counsel of his choice and have such counsel
review this Agreement and render advice thereon to Employee, and Employee has
either done so or voluntarily elected not to do so.
SECTION 10. TAXES. All payments required to be made by the Company
hereunder to Employee shall be subject to withholding of such amounts relating
to taxes as the Company may reasonably determine it should withhold pursuant to
any applicable federal, state or local law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company may, in its sole discretion,
accept other provision for payment of taxes, provided it is satisfied that all
requirements of law affecting its responsibilities to withhold such taxes have
been satisfied.
SECTION 11. NO ATTACHMENT. Except as required by law, no right to
receive payment under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation or to execution, attachment, levy, or similar process of
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
SECTION 12. ARBITRATION. Any dispute, controversy or claim arises out
of, under or in connection with, or otherwise relating to, this Agreement (other
than the Company's rights under Section 6) (a "Dispute"), including but not
limited to the parties' rights and obligations hereunder, or any actual or
alleged breach hereof, shall be determined and settled by binding arbitration in
Denver, Colorado in accordance with the rules of the commercial rules and
procedures of the American Arbitration Association, as amended by this
Agreement. Promptly after a Dispute arises, the parties agree to make a good
faith effort to select one mutually agreeable arbitrator. If the parties are
unable to reach agreement on an arbitrator within thirty (30) days after the
Dispute is submitted to arbitration, one arbitrator shall be selected in
accordance with the commercial rules and procedures of the American Arbitration
Association. Any determination, resolution or award made by the arbitrators
shall specify the findings of fact of the arbitrators and the reasons for the
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determination, resolution or award, and such determination, resolution or award
shall be final and binding. If the parties hereto mutually agree to a resolution
of any Dispute prior to the arbitrators' decision, the agreement of the parties
shall resolve the Dispute. The party prevailing in any arbitration, as
determined by the arbitrator, shall be entitled to an award of all of its
out-of-pocket costs and expenses incurred in connection with the Dispute,
including but not limited to reasonable attorneys' fees, court costs and expert
fees. An arbitration award or decision may be entered by any court of competent
jurisdiction, or application may be made to such a court for judicial acceptance
of the award or decision and any appropriate order, including enforcement. The
parties hereby consent to the submission of any Dispute for settlement by
binding arbitration in accordance with this Section 14 and agrees to carry out
without delay the provisions of any arbitration award, decision or resolution.
SECTION 13. GENERAL PROVISIONS.
(a) GOVERNING LAW. This Agreement shall in all respects be
governed by, and construed in accordance with, the internal substantive
laws of the State of Colorado, without giving effect to any conflict or
choice of law principles or rules.
(b) AMENDMENT. This Agreement may not be amended or modified
in whole or in part in any manner except in a writing which makes
reference to this Agreement executed by both parties hereto.
(c) ASSIGNMENT. Neither the Agreement, nor any rights,
obligations or duties hereunder, may be assigned or delegated by any
party hereto without the prior written consent of the other party
hereto; provided, however, that this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the
Company upon any sale of all or substantially all of the Company's
stock or assets, or upon any merger, consolidation or reorganization of
the Company with or into any other Person, so long as such successors
or assigns assume all of the Company's obligations hereunder. As used
in this Agreement, the term "Company" shall be deemed to refer to any
such successor or assign of the Company referred to in the preceding
sentence.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
(e) ENTIRE AGREEMENT.
(i) This Agreement sets forth the entire agreement
and understanding of the parties hereto with respect to the
subject matter hereof and supersedes in their entirety all
prior and contemporaneous written and oral agreements,
arrangements, understandings, negotiations, communications,
covenants, representations and warranties among the parties
hereto relating to the subject matter hereof.
(ii) Employee acknowledges that from time to time,
the Company may establish, maintain or distribute the employee
manuals or handbooks or personnel policy manuals, and officers
or other representatives of the Company may make written or
oral statements relating to personal policies and procedures.
Such manuals, handbooks and statements are intended only for
general guidance. No policies, procedures or statements of any
nature by or on behalf of the Company (whether written or
oral, and whether or not contained in any the employee manual
or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this
Agreement.
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(f) NOTICES. Any and all notices, demands, requests, elections
and other communications required or permitted to be given hereunder
shall be in writing and shall be deemed to have been duly given (i)
upon personal delivery; (ii) upon confirmation of receipt when sent by
facsimile transmission; (iii) one business day after deposit during
normal business hours with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt;
(iv) five business days after being sent by first class (certified or
registered) mail, postage prepaid, return receipt requested, in each
case to the following addresses:
If to the Company:
PowerSpring, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to:
Metretek Technologies, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: W. Xxxxxxx Xxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxx X. Xxxx, Esq.
Kegler, Brown, Hill & Xxxxxx Co., L.P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Mercator:
Xxxx X. Xxxxxxx
[600 00xx Xxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000]
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With a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party hereto may send any notice, demand, request, election or
other communication to the intended recipient at its address set forth
above using any other means (such as expedited courier, messenger
service, telecopy, telex, ordinary mail or electronic mail), but no
such notice, demand, request or other communication shall be deemed to
have been given until it is actually received by the recipient. Any
party hereto may change its designated address by giving written notice
to all other parties.
(g) WAIVER. The obligations of any party hereunder may be
waived only with the written consent of the party or parties entitled
to the benefits the obligations so involved. Any waiver of a breach or
violation of or default under any provision of this Agreement shall not
be construed or operate as, or constitute, a waiver of any other or
subsequent breach or violation of or default under that provision or
any other provision of this Agreement. The failure of any party to
insist upon strict compliance with any provision of this Agreement on
any one or more occasions shall not be construed or operate as, or
constitute, a continuing waiver of, or an estoppel of that party's
right to insist upon strict compliance with, that provision or any
other provision of this Agreement.
(h) SEVERABILITY. The provisions of this Agreement shall be
deemed severable. If any provision of this Agreement is determined to
be illegal, invalid or unenforceable in any situation: (i) the parties
hereto shall agree to a suitable and equitable provision to be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable
provision; and (ii) the remainder of this Agreement shall remain in
full force and effect, and the application of such provision in any
other situation shall not be affected.
(i) COUNTERPARTS. This Agreement may be executed in any number
of counterparts (including counterparts executed by less than all
parties hereto), each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
(j) HEADINGS. The headings used herein are solely for
convenience of reference and shall not be given any effect in the
construction or interpretation of this Agreement.
(k) NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement,
express or implied, in intended to create or confer and shall not be
construed or operate as creating or conferring, any rights or remedies
under or by reason of this Agreement, upon any Person other than the
parties hereto and their respective successors and permitted assigns.
(l) FURTHER ASSURANCES. The parties hereto agree to take or
cause to be taken all actions, which are necessary, convenient or
desirable in order to effect the transactions contemplated by this
Agreement.
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(m) BEST EFFORTS. Each of the parties hereto shall act in good
faith and use its best efforts to bring about the transactions
contemplated by this Agreement.
(n) EXPENSES. Except as otherwise expressly provided herein,
each of the parties to this Agreement shall pay its own costs and
expenses incurred in connection with this Agreement and the
consummation of the transactions contemplated hereby.
(o) CONSTRUCTION. In the event an ambiguity or question or
intent or interpretation arises, this Agreement shall be construed as
if drafted jointly by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
(p) SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges and agrees that the other parties hereto would suffer
irreparable damage for which an adequate remedy at law would not be
available in the event any of the provisions of this Agreement is not
performed in accordance with its specific terms or otherwise is
breached. Accordingly, each of the parties hereto agrees that the
non-breaching parties shall be entitled to an injunction, restraining
order or other form of equitable relief from any court of competent
jurisdiction to prevent breaches of, and to specifically enforce, the
provisions of this Agreement.
(q) INTERPRETATION OF CERTAIN PROVISIONS. Except as otherwise
expressly provided herein, as used in this Agreement:
(i) Any reference to any federal, state, local or
foreign statute or law shall be deemed also to include a
reference to all rules and regulations promulgated thereunder.
(ii) The term "including" means "including, without
limitation".
(iii) The term "Entity" means and includes a
corporation, partnership, limited liability company, joint
venture, trust, association, unincorporated organization,
governmental or regulating body or authority, or any other
form of business or entity.
(iv) The term "Person" means and includes an
individual and an Entity.
(v) The number and gender of each noun and pronoun
and the terms "Person" and "Persons" and the like shall be
construed to mean such number and gender as the context, the
circumstances or its antecedent may require.
(vi) The terms "hereof", "herein", "hereunder" and
words of similar import refer to this Agreement as a whole,
and not to any Section, subsection or clause of this
Agreement.
(vii) Each reference to a Section means such Section
of this Agreement.
* * * * *
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IN WITNESS WHEREOF, this Employment and Non-Competition Agreement has
been executed and delivered by the parties hereto or their respective duly
authorized officers, effective as of the date first above written.
THE COMPANY:
POWERSPRING, INC.
By:/s/ W. Xxxxxxx Xxxxxx
-----------------------------------
W. Xxxxxxx Xxxxxx, President
EMPLOYEE:
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
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