Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of November 1, 2004 (the "Effective Date"), by and between
METRETEK TECHNOLOGIES, INC., a Delaware corporation (the "Corporation"), and
A. XXXXXXX XXXXXXX (the "Officer," and collectively with the Corporation, the
"Parties").
R E C I T A L S
WHEREAS, Officer is a founder of the Corporation and was instrumental in
the formation of the Corporation and its subsidiaries and in creating its
business and procuring its capital; and
WHEREAS, the continued involvement of Officer in the Corporation's ongoing
business is critical to the success of the Corporation; and
WHEREAS, the Corporation and Officer previously entered into an Employment
Agreement, dated as of June 11, 1991, which has been amended several times; and
WHEREAS, the Compensation Committee of the Board of Directors authorized
and approved of additional amendments to the Employment Agreement, including
extending the term of employment and modifying the compensation of Officer, and
has determined that it is in the best interests of the Corporation to restate
the Agreement to reflect the most recent as well as all previous but still
effective amendments; and
AGREEMENT
NOW, THEREFORE, in reliance upon all of the recitals, covenants, terms and
arrangements stated herein, the Parties covenant and agree as follows:
1. Agreement to Serve.
1.1 Title. During the Employment Period, the Corporation shall
employ Officer and Officer shall serve in the employ of the Corporation as its
Executive Vice President, Chief Financial Officer and Assistant Secretary or
under such other titles or executive offices as shall be designated by the Board
of Directors during the term of Officer's employment hereunder.
1.2 Duties. Officer shall assume and discharge the responsibilities
of the Executive Vice President, Chief Financial Officer and Assistant Secretary
(as set forth in the Bylaws of the Corporation), as well as such other
responsibilities as may be assigned to him by the Board of
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Directors of the Corporation. Officer shall perform such responsibilities to the
best of his abilities and shall devote his entire professional time and
attention to the good faith best efforts performance of his responsibilities.
Officer will engage in no other business or activity for compensation during the
term of this Agreement except with the prior written consent of the Board of
Directors. Officer shall always be subject to the directions of the Board of
Directors in the performance of his responsibilities, and nothing herein shall
affect the power of the Board of Directors to limit, alter, restrict or remove
the authority of the Officer.
2. Terms of Employment.
2.1 Basic Term. The term of Officer's employment under this
Agreement shall continue until December 31, 2006, unless terminated earlier
pursuant to this Section 2 (the "Employment Period"); provided, however, that
unless the Corporation or Officer gives to the other written notice at least six
months prior to the expiration of such term or of any successive one-year
extension term as provided hereafter, the Employment Period shall be
automatically extended for successive one-year terms, unless and until
terminated pursuant to this Agreement..
2.2 Termination for Cause. The Corporation may terminate Officer's
employment at any time for "cause' immediately upon written notice to Officer.
Grounds for termination for "cause" shall include only (i) Officer's material
breach of any terms of this Agreement that remains uncured or unremedied for
thirty (30) days following written notice from the Corporation to Officer; (ii)
Officer's willful dishonesty towards, fraud upon, crime against, bad faith
action with respect to, or deliberate or attempted injury to the Corporation; or
(iii) Officer's conviction for any felony crime (whether in connection with the
Corporation's affairs or otherwise). Officer shall have no right to receive
further compensation or other benefits for any period after termination for
cause.
2.3 Voluntary Termination. Officer shall not voluntarily terminate
his employment hereunder during the Employment Period, except by at least 60
days' prior written notice provided to the Board of Directors of the
Corporation. In the event of such voluntary termination, Officer shall be
entitled to the compensation provided in Section 2.8 hereof.
2.4 Termination Without Cause. If the Corporation shall elect to
terminate Officer's employment without "cause" prior to the expiration of the
Employment Period (including prior to the expiration of any extension period),
then:
2.4.1 The Corporation shall provide to Officer a Notice of
Termination (as defined in Section 3.4.4) setting forth the reason
for the termination of his employment, and Officer's employment
shall be terminated as of the date Officer receives the Notice of
Termination;
2.4.2 The Corporation shall pay to Officer the following
amounts:
(i)To the extent not theretofore paid, Officer's base salary
through the Date of Termination, at the rate in effect on the date
the Notice of Termination was given,
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along with any earned but unpaid bonuses, in a lump sum in cash
within 30 days after the Date of Termination (as defined in Section
3.4.4) ; and
(ii) In the case of compensation previously deferred by Officer,
all amounts of such compensation previously deferred and not yet
paid by the Corporation, in a lump sum in cash within 30 days after
the Date of Termination; and
(iii) An amount equal to eighteen (18) months of Officer's
annual base salary, based upon Officer's base Salary as in effect on
the date the Notice of Termination was given ("Base Salary Upon
Termination"), payable on the Company's regular payroll dates over
the eighteen (18) month period commencing on the Date of Termination
at the rate of Officer's Base Salary Upon Termination; and
2.4.3 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 Section 3.3.2; and
2.4.4 For a period the longer of (i) eighteen (18) months from
the Date of Termination or (ii) the remainder of the Employment
Period if Notice of Termination had not been given, 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 Corporation. If, despite the provisions of this Section
2.4, benefits shall not be available under any of such plans because
Officer is no longer an employee of the Corporation, the Corporation
itself shall, to the extent necessary, pay or provide for payment of
such benefits to Officer and/or Officer's family, in each case at
the time such payments would be payable pursuant to the terms of
such plans. However, Officer shall not accrue any further benefits
other than those required by law and will achieve vested status in
any other benefits offered by the Corporation under this Agreement
or any other benefit plan.
2.5 Disability. If, during the term of this Agreement, Officer, in
the reasonable judgment of the Board of Directors of the Corporation (which
conclusion by such Board shall be principally based upon the full availability
of benefits of the disability policy referred to below), has failed to perform
his duties under this Agreement on account of illness or physical or mental
disability, which condition renders Officer incapable of performing the duties
of this office, and such condition continues for a period of more than six (6)
months, the Corporation shall have the right to terminate Officer's employment
hereunder by written notification to Officer and payment to Officer of all
accrued compensation to the date of termination. The Company agrees to purchase
and maintain at its own expense during the Employment Period a long-term
disability insurance policy that provides compensation upon disability of
Officer on the same terms as is generally made available to employees of the
Corporation.
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2.6 Death. In the event of Officer's death during the term of this
Agreement, Officer's employment shall be deemed to have terminated as of the
last day of the month during which his death occurs and the Corporation shall
pay to his estate all accrued compensation to the date of termination. The
Company agrees to purchase and maintain at its own expense during the Employment
Period a life insurance policy that provides a death benefit to the estate or
designated beneficiary of Officer on the same terms as is generally made
available to employees of the Corporation.
2.7 Merger or Acquisition. This Agreement shall not be deemed
terminated by reason of the change of control of the majority ownership of the
Corporation for the purpose of merger or acquisition if Officer is offered
employment with any concern or undertaking resulting from the merger or
acquisition on terms and conditions not less favorable than the terms of this
Agreement.
2.8 Termination Upon Expiration of Employment Period. If (a) Officer
shall voluntarily terminate his employment hereunder in accordance with Section
2.3 hereof, or (b) either the Corporation or Officer shall elect to terminate
Officer's employment hereunder upon the expiration of the Employment Period by
giving timely Notice of Termination to the other; then, as of the date of the
expiration of the Employment Period ("Expiration Date"), Officer shall not
accrue any further benefits other than those required by law and shall not
achieve vested status in any other benefits offered by the Corporation under
this Agreement or any other benefit plan, and the Corporation shall have no
further obligation under this Agreement, except as follows:
2.8.1 The Corporation shall pay to Officer the following
amounts:
(i) to the extent not theretofore paid, Officer's base salary
through the Expiration Date at the rate then in effect, along with
any earned but unpaid bonuses, in a lump sum in cash within 30 days
after the Expiration Date; and
(ii) In the case of compensation previously deferred by
Officer, all amounts of such compensation previously deferred and
not yet paid by the Corporation, in a lump sum in cash within 30
days after the Expiration Date; and
(iii) An amount equal to eighteen (18) months of Officer's
annual base salary, based upon Officer's base Salary as in effect on
the Expiration Date ("Base Salary Upon Expiration"), payable on the
Company's regular payroll dates over the eighteen (18) month period
commencing on the Expiration Date at the rate of Officer's Base
Salary Upon Expiration; and
2.8.2 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 Expiration
Date which are payable under Section 3.3.2; and
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2.8.3 For a period of eighteen (18) months from the Expiration
Date, 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 Corporation If, despite the
provisions of this Section 2.8.3, benefits shall not be available
under any of such plans because Officer is no longer an employee of
the Corporation, the Corporation itself shall, to the extent
necessary, pay or provide for payment of such benefits to Officer
and/or Officer's family, in each case at the time such payments
would be payable pursuant to the terms of such plans.
2.8.4 The payments and benefits, if any, required to be made
or provided to Officer by the Corporation pursuant to this Section
2.8 shall be in full and complete in satisfaction of all obligations
of the Corporation owed to Officer pursuant to this Agreement. After
the Expiration Date, the Corporation shall have no further
obligations to Officer under this Agreement except as expressly set
forth herein.
3. Compensation.
3.1 Base Salary. During the Employment Period, the Corporation shall
pay to Officer as compensation for the services to be performed by Officer a
salary at the annual rate of $200,000 in U.S. currency. Such salary shall be
subject to further annual upward adjustment at the discretion of the Board.
Officer's salary shall be payable in equal semi-monthly installments on or
before the 15th day and the last day of each month during which Officer is
employed. Should Officer be employed for only a portion of any month, Officer's
salary shall be prorated to reflect the actual days of employment during such
month.
3.2 Incentive Compensation. The Corporation shall establish an
Incentive Compensation Fund to be administered by the Compensation Committee of
the Board of Directors. The Compensation Committee shall determine the
distribution of the payment of incentive compensation (the "Incentive
Compensation") to officers and key employees of the Corporation as follows:
3.2.1 In the event that the Corporation enters into a merger
or other transaction which results in a change of control, the sale
of substantially all of its assets or similar transactions, the
Compensation Committee shall determine the amount of Incentive
Compensation pursuant to the formula set forth in section 3.2.2 and
shall immediately upon consummation of such transaction, distribute
100% of the Incentive Compensation to each officer or employee who
had, in the Compensation Committee's judgment, made substantial
contribution to the Corporation's success and increase in value. In
the event of the sale of a significant subsidiary, or substantially
all of the assets of a significant subsidiary, a similar pro rata
distribution shall be required. Such payments shall be made on a pro
rata basis in the event of a death, disability or termination (other
than for cause) or at such other times as the Compensation Committee
may determine. The Compensation Committee may, in its discretion,
determine that up to 50% of any payment be made in shares of Common
Stock.
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3.2.2 The total amount of Incentive Compensation available for
distribution shall be determined according to the following formula
(an example of which is attached hereto as Exhibit A):
[Fair Market Value per Common Stock Equivalent ("FMV")
Base Price per Common Stock Equivalent ("BP")] X
Outstanding Common Stock Equivalents X the applicable
percentage as set forth below:
The portion of FMV equal to or less than
the ratio of FMV to BP; plus
0%
The portion of FMV falling in the range of
1 to 3 for the ratio of FMV to BP; plus
10%
The portion of FMV falling in the range of
3 to 4 for the ratio of FMV to BP; plus
15%
The portion of FMV which exceeds 4 for
the ratio of FMV to BP
20%
3.2.3 BP shall mean $10.04 per Share, adjusted to reflect
stock dividends, stock splits and similar events occurring after the
date hereof.
3.2.4 For purposes hereof, FMV shall be defined as the actual
or allocated transaction price per equivalent share of Common Stock
(the total number of shares of Common Stock outstanding plus the
balance of dilutive shares of Common Stock into which outstanding
shares of Preferred Stock are convertible), or the average closing
bid price of the Corporation stock during the 30 days preceding the
determination date, or such other price as may be reasonably
determined by the Compensation Committee. In the event of a sale of
a significant subsidiary or substantially all of the assets of a
significant subsidiary, then FMV and the part of the BP attributable
to that significant subsidiary shall be reasonably determined by the
Compensation Committee.
3.2.5 Officer's right to participate in the Incentive
Compensation Fund shall be fully vested as of the date hereof.
3.3 Benefits. During the Employment Period and for any other time
required by law, Officer shall be entitled to participate, upon the standard
terms and conditions of such plans in all regular and key employee benefit plans
established by the Corporation for its salaried employees, including, without
limitation, the following:
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3.3.1 Stock Options. The Corporation shall use its best
efforts to establish and maintain one or more stock option plans
(the "Stock Option Plans") for the purpose of granting options to
key employees, management and directors. The Stock Option Plans
shall provide for incentive stock options and such other options and
awards as the Board of Directors, in its discretion, may determine.
The Stock Option Committee or other appropriate Committee of the
Board of Directors shall from time to time grant to Officer options
to purchase shares of Common Stock or other awards under the Stock
Option Plans as it shall in its discretion deem appropriate.
3.3.2 Expenses. The Corporation shall reimburse Officer for
any reasonable business expenses wholly, exclusively and necessarily
incurred by him in the performance of his duties for the
Corporation. The Corporation shall also reimburse Officer for any
reasonable cost incurred to establish or maintain membership in any
professional association necessary to maintain Officer's
professional qualifications. Officer shall be required to provide
reasonable evidence of expense prior to reimbursement.
3.4 Compensation Upon Termination of Employment Following a Change
in Control.
3.4.1 Amount of Compensation. If, during the Employment Period
and within three years of the date on which a "Change in Control"
(as defined in Section 3.4.2) occurs, the Corporation shall
terminate Officer's employment without "cause" (as defined in
Section 2.2), or the employment of Officer shall be terminated by
Officer for "Good Reason" (as defined in Section 3.4.3):
(a) 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:
(i) To the extent not theretofore paid, Officer's 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; and
(ii) One and one-half (1 -1/2) times Officer's annual
base salary at the rate in effect on the date the Notice of
Termination was given; and
(iii) In the case of compensation previously deferred by
Officer, all amounts of such compensation previously deferred and
not yet paid by the Corporation; and
(b) 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 Section 3.3.2 if
Officer's employment had not terminated; and
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(c) For a period of eighteen (18) months from the Date of
Termination, Officer shall continue to be treated as a key employee
for purposes of the employee benefit plans of the Corporation
described in Section 3.3 and the Corporation shall continue to
provide benefits to or for the benefit of Officer and/or Officer's
family at least equal to those which would have been provided or
accrued, as the case may be, in accordance with such plans if
Officer's employment had not been terminated. If, despite the
provisions of this Section 3.4.1(c), benefits shall not be available
under any of the plans of the Corporation because Officer is no
longer an employee of the Corporation, 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 3.4.1(b) and
the benefits actually payable 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.
3.4.2 Definition of Change in Control. For the purpose of this
Agreement, a "Change in Control" shall be deemed to have occurred
only if:
(a) 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
(b) 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 two-thirds 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
(c) Approval by the Corporation of a reorganization, merger,
combination, or consolidation, in each case, unless, following such
reorganization, merger, combination, or consolidation, (i) more than
50% of, respectively, the then
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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 (ii) 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
(d) 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 (i) and (ii) of Section 3.4.2(c) are
satisfied.
3.4.3 Definition of Good Reason. For purposes of this
Agreement, "Good Reason" means:
(a) (i) 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 (ii) 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;
(b) 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;
(c) The Corporation's requiring Officer to be based at an
office location or to maintain his personal residence other than in
the greater Denver, Colorado area;
(d) The failure of the Corporation to obtain a satisfactory
agreement from any successor to the Corporation to assume and agree
to perform this Agreement;
(e) 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;
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(f) Any purported termination by the Corporation of Officer's
employment other than as expressly permitted by this Agreement; or
(g) 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.
3.4.4 Termination of Employment.
(a) Notice of Termination. Any termination by the Corporation
for any reason or by Officer for Good Reason, shall be communicated
by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination
of the Officer's employment under the provision so indicated, and
(iii) if the Date of Termination is other than the date of receipt
of such notice, specifies the Date of Termination.
(b) Date of Termination. "Date of Termination", as used in
this Agreement, means the date Officer's employment with the
Corporation is terminated.
3.4.5 Supercedes Section 2. In the event of a Change in
Control, the provisions of this Section 3.4 shall supercede any
provisions of Section 2 that are inconsistent or in conflict with
this Section 3.4.
4. Confidentiality. The Officer shall not, during the Employment Period,
or at any time thereafter, directly or indirectly use, divulge, furnish or make
accessible to anyone other than the Corporation, its directors or officers
(otherwise than in the regular course of the business of the Corporation), any
knowledge or information regarding any confidential or secret ideas, activities,
projects, plans, techniques, methods, reports, customer names or lists,
financial or sales information or other material relating to the business or
activities of the Corporation. Officer, upon leaving the employ of the
Corporation, shall not take with him any books, records, data, reports, letters,
memoranda, notes or other writings or documents whatsoever, or copies thereof,
which reflect or deal with any secret, proprietary or confidential information
or material relating to the business or activities of the Corporation.
5. Inventions, Discoveries and Improvements. All inventions, discoveries
and improvements, whether patentable or unpatentable, made, devised or
discovered by Officer, whether by himself or jointly with others, during the
Employment Period and the Restricted Period (as defined in Section 6 below),
relating or pertaining in any way to the business of his employment, shall
promptly be disclosed in writing to the Board of Directors and are to rebound to
the benefit of the Corporation and become and remain its sole and exclusive
property. Officer agrees to execute any assignments to the Corporation or its
nominee of his entire right, title and interest in and to any such inventions,
discoveries and improvements and to execute any other instruments and documents
requisite to or desirable in applying for and obtaining patents with respect
thereto in the United States and in all foreign countries, at the request and
expense of the Corporation. Officer further
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agrees to cooperate to the extent and in the manner requested by the Corporation
in the prosecution or defense of any patent claims or any litigation or other
proceeding involving any inventions, trade secrets, processes, discoveries or
improvements covered by this Agreement, but all expenses thereof shall be paid
by the Corporation. The terms of this Section 5 shall continue for one year
after the termination of the Employment Period.
6. Covenant Not to Compete. During the Employment Period and (i) for a
period of eighteen (18) months after the Employment Period, or (ii) if the
Corporation for any reason defaults for sixty (60) days in its severance
obligations to Officer hereunder, for a period after the Employment Period
ending upon the expiration of such default period (the "Restricted Period"),
Officer shall not, alone, together or in association with others, as owner,
shareholder, employee, officer, director, partner, lender, investor, consultant,
principal, agent, independent contractor, co-venturer or in any other capacity,
directly or indirectly, engage in, have a financial interest in or be in any way
connected or affiliated with, or render advice or service, to, any person, firm
or business or enterprise which is in competition with any subsidiary of the
Corporation. This consent shall apply in every geographic area in the world in
which the Corporation is conducting or has conducted business at any time since
the Effective Date. During the aforementioned period, Officer also shall not
call upon, cause to be called upon, solicit with another in the securing of any
client, past or present, or provide client of the Corporation for the purpose of
coming with the Corporation. Notwithstanding the foregoing, nothing herein
contained shall prevent Officer from purchasing and holding for investment less
than five percent (5%) of the shares of any corporation, the shares of which are
regularly traded either on a national securities exchange, on the Nasdaq Stock
Market or in the over-the-counter market. In the event Officer is terminated by
the Corporation without cause, then the period of this covenant shall be limited
to the period of time during which Employee shall receive compensation or
benefits from the Corporation under the provisions of this Agreement.
7. Miscellaneous.
7.1 Severability. If any provision of this Agreement is held
unenforceable, invalid or void to any extent for any reason, such provision will
remain in full force and effect to the maximum extent allowable, if any, and the
enforceability or validity of the remaining provisions of this Agreement will
not be affected thereby.
7.2 Withholdings. All compensation and benefits to Officer hereunder
shall be reduced by all federal, state, local and other withholdings and similar
taxes and payments required by applicable law.
7.3 Arbitration. Except as provided in this Section 7.3, the Parties
hereby submit all controversies, claims and matters of difference in any way
related to this Agreement or the performance or breach of the whole or any part
hereof to arbitration in Denver, Colorado, according to the rules and practices
of the American Arbitration Association from time to time in force. If such
rules and practices shall conflict with the Colorado Rules of Civil Procedure or
any other provisions of Colorado law then in force, such Colorado rules and
provisions shall govern. Arbitration of any such controversy, claim or matter of
difference shall be a condition precedent to any legal action thereon. This
submission and agreement to arbitration shall be specifically enforceable.
Awards
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shall be final and binding on all parties to the extent and in the manner
provided by Colorado law. All awards may be filed by any party with the Clerk of
the District Court in the City and County of Denver, Colorado, and an
appropriate judgment entered thereon and execution issued therefor. At the
election of any Party, said award may also be filed, and judgment entered there
one and execution issued thereof, with the clerk of one or more other courts,
state or federal, having jurisdiction over the Party against whom such an award
is rendered or its property.
7.4 Entire Agreement; Modifications. This Agreement represents the
entire agreement between the Parties and supercedes all previous agreements and
understandings, including the original Employment Agreement between the Parties
and all amendments thereto, and may be amended, modified, superseded, or
cancelled, and any of the terms hereof may be waived, only by a written
instrument executed by each Party or, in the case of a waiver, by the Party
waiving compliance. The failure of any Party at any time or times to require
performance of any provisions hereof shall not affect the right at a latter time
to enforce the same. No waiver by any Party of the breach of any provision
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such breach or of any other term of this Agreement.
7.5 Survival. In the event of termination of this Agreement for any
reason whatsoever, the provisions of Sections 4 through 7 shall survive such
termination.
* * * * * * * * * *
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IN WITNESS WHEREOF, the Parties have executed this Amended and Restated
Employment Agreement as of the Effective Date.
CORPORATION:
METRETEK TECHNOLOGIES, INC.
By: /s/ W. Xxxxxxx Xxxxxx
---------------------------------------------
W. Xxxxxxx Xxxxxx, President and CEO
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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EXHIBIT "A"
INCENTIVE COMPENSATION EXAMPLES
ASSUMPTIONS: CASE I
Allocated IPO common stock price per share, adjusted for 1998 reverse stock
split: $10.08
Total Common Stock Equivalents outstanding: 11,000,000 Common Stock Equivalents
Assumed sale of Corporation @ $22.00 per share: Gross transaction value of
$242,000,000
FMV: $242,000,000/11,000,000 = $22.00
BP: $10.08
Incentive Compensation Calculation:
($22.00 - $10.08 x 11,000,000) x 10% = $12,112,000
-----------
Total Incentive Compensation $12,112,000
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ASSUMPTIONS: CASE II
Sale of Subsidiary @ $55,000,000
Compensation Committee determined allocated BP to Subsidiary, based upon
cost/value of $11,000,000
Apportioned BP: $11,000,000 / 11,000,000 = $1.00 BP
FMV: $55,000,000 / 11,000,000 = $5.00
Incentive Compensation Calculation:
($3.00 - $1.00 x 11,000,000) x 10% = $ 2,200,000
($4.00 - $3.00 x 11,000,000) x 15% = $ 1,650,000
($5.00 - $4.00 x 11,000,000) x 20% = $ 2,200,000
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Total Incentive Compensation $ 6,050,000
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