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EXHIBIT 10.1
TERMINATION AGREEMENT AND MUTUAL RELEASE
THIS TERMINATION AGREEMENT AND MUTUAL RELEASE (this "Agreement") is
made and entered into as of March 31, 2001, by and among PowerSpring, Inc., a
Delaware corporation (the "Company"), Metretek Technologies, Inc., a Delaware
corporation ("Metretek"), Metretek Energy Incorporated, a Colorado corporation
("Mercator"), Xxxx X. Xxxxxxx, an individual resident of the State of Colorado
(the "Employee"), and Mercator Energy, LLC, a Colorado limited liability company
("New Mercator").
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WHEREAS, on March 17, 2000, the Company acquired Mercator, which was
then owned by Employee, pursuant to a merger (the "Merger"); and
WHEREAS, in connection with the Merger, the Company and Employee
entered into various agreements and instruments setting forth their various
rights and obligations with respect to each other, including but not limited to
Employee's employment with the Company and the Company's purchase price payment
obligations pursuant to a promissory note; and
WHEREAS, the parties now desire to terminate certain existing
agreements and instruments between each other, to transfer the business of
Mercator as it now exists to New Mercator, a limited liability company recently
formed by Employee, and to create new relationships, upon the terms and subject
to the conditions set forth herein;
Agreement
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. TERMINATION OF EMPLOYMENT AND RESIGNATION OF POSITIONS BY EMPLOYEE.
Employee and the Company hereby agree that, effective as of the "Effective Date"
(as defined in Section 17) of this Agreement, the Company's employment of
Employee shall be terminated and Employee resigns any and all positions held by
him as an officer and a director of the Company and of Mercator.
2. TERMINATION OF AGREEMENTS AND INSTRUMENTS.
(a) Effective as of the Effective Date of this Agreement, the
Company and Employee agree that the following agreements and instruments (the
"Terminated Instruments"), and all covenants, agreements and obligations
thereunder (except as otherwise expressly set forth in this Agreement), are
fully, finally and forever terminated, notwithstanding any provisions therein to
the contrary:
(i) The Employment and Non-Competition Agreement,
dated as of March 17, 2000, by and between the Company and Employee, including
but not limited to the Company's severance obligations to the Employee
thereunder and Employee's non-competition obligations to the Company and its
affiliates thereunder;
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(ii) The $741,666 Non-Negotiable Promissory Note,
issued on March 17, 2000 by the Company to Employee, which Employee agrees to
deliver to the Company on the Effective Date;
(iii) The Security Agreement, dated as of March 17,
2000, between the Company and the Employee, including the security interest
granted by the Company to Employee therein;
(iv) The Stockholders Agreement, dated as of March
17, 2000 (the "Stockholders Agreement"), among the Company, Metretek and
Employee; and
(v) The Uniform Commercial Code Financing Statements
UCC-1's filed by the Employee with the Secretary of State of the State of
Colorado, which Employee warrants is the only office in which the UCC-1s have
been filed, and Employee agrees to execute and file UCC-3s on the Effective Date
with the same office evidencing the termination of the security interests
referred in the UCC-1's and releasing the same; and
(b) No party to any Terminated Instrument shall incur any
liability or obligation as a result of the termination of such Termination
Agreement pursuant to this Agreement. Any rights or obligations under any
Terminated Instrument prior to the date hereof shall be terminated as of the
date hereof. Any prior breaches and/or defaults by any party of any Terminated
Instrument shall be fully, finally and forever waived without liability or
obligation thereunder.
3. TRANSFER OF MERCATOR ASSETS.
(a) TRANSFER OF MERCATOR ASSETS. On the Effective Date (as
defined in Section 17), upon the terms and subject to the conditions set forth
in this Agreement, the Company and Mercator agree to sell, assign, transfer,
convey and deliver to New Mercator, and New Mercator agrees to purchase and
acquire from the Company and Mercator, all of the Company's and Mercator's
right, title and interest in and to all of the assets used primarily in the
business operations of Mercator as of the date hereof (the "Mercator Assets"),
which Mercator Assets are specifically set forth on SCHEDULE I hereto.
(b) NO REPRESENTATION. All parties hereto acknowledge and
agree that Metretek, the Company and Mercator make no, and disclaim all,
representations and warranties with respect to the Mercator Assets of any kind,
express or implied, statutory or otherwise, including but not limited to
warranties of merchantability, suitability, fitness for a particular purpose,
title (except that the Company, Metretek and Mercator represent and warrant to
New Mercator that after the Effective Date they will have no title to, and will
not claim any interest in, any of the Mercator Assets, nor will any third party
have or be entitled to claim any interest in any of the Mercator Assets, by,
through or under the Company or Metretek as the result of any act of the Company
or Metretek, other than an act of the Employee) or non-infringement of third
party rights, and Metretek, the Company and Mercator assume no responsibility
whatsoever with respect to the use or sale by or the incorporation of the
Mercator Assets in the business of, Employee or New Mercator, or their customers
or other transferees, and that the Mercator Assets are being transferred and
Employee and New Mercator agree to accept the Mercator Assets on an "as is,
where is with all faults" basis and in their present condition.
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(c) USE OF COMPANY FACILITY. For a period commencing on the
date hereof and expiring on December 31, 2001, New Mercator shall be entitled to
continue to utilize, without rent or other charge except as specifically
provided for herein, the space in the Company's facility in which Employee
currently has been operating the Mercator business located at 000 00xx Xxxxxx,
Xxxxx 000 Xxxxx, Xxxxxx, Xxxxxxxx (the "Current Facility"), with reasonable
rights to use of common areas, provided that New Mercator shall not have the
right to expand the amount of space for New Mercator after the date hereof
without the prior written consent of PowerSpring, in its sole discretion, and
provided further that Employee agrees to reimburse the Company for any
out-of-pocket costs incurred by the Company (other than rent, utilities and
property insurance) incurred by the Company due to any action or inaction of, or
the conduct of business by, the Employee or New Mercator, or costs by Employee's
conduct of the business, after the date hereof. The Company agrees to permit New
Mercator, at its own cost and without any cost to the Company, to install a wall
in the Current Facility separating the space to be used by New Mercator and to
install a separate entrance, with a lock, for the space of New Mercator,
provided such installation is in compliance with the lease for the Current
Facility and all applicable legal requirements. If, and only if, the Company
renews its lease for the Current Premises, it agrees either to sublease the
separate space to New Mercator, at its cost (including proportionate rent,
common area maintenance, utilities and other leasehold related charges), or to
reasonably cooperate with New Mercator in allowing New Mercator to rent directly
from the landlord its separate space.
4. ADDITIONAL TERMINATION PAYMENTS. In addition to the other
consideration to be received by Employee hereunder, on the Effective Date,
Employee shall be entitled to receive the following additional consideration:
(a) CASH PAYMENTS. The Company shall pay to Employee the
amount of $250,000 by check made payable to the order of Employee or by wire
transfer of immediately available funds to an account designated by Employee as
follows $150,000 shall be due and payable on the date hereof, $50,000 shall be
due and payable six months from the date hereof, and the final $50,000 shall be
due and payable on the first anniversary of the date hereof; provided, however,
that in the event Metretek renews or replaces its existing credit facility with
National Bank of Canada (the "Bank") with a loan availability no less than the
current loan availability, then the Company shall make any payments due under
this Section 4(a) that have not already been paid to Employee within fifteen
(15) days after such renewal. The Company agrees to notify Employee as soon as
practical after Metretek renews or replaces its existing credit facility with
the Bank.
(b) METRETEK STOCK OPTIONS. Metretek shall grant to Employee
options (the "Metretek Stock Options") to purchase 80,000 shares of Common
Stock, par value $.01 per share ("Metretek Common Stock"), of Metretek, with an
exercise price equal to $2.00. The Metretek Stock Options shall vest on the date
hereof and shall remain exercisable until the second anniversary of the date
hereof. The Metretek Stock Options shall be in substantially the form attached
hereto as EXHIBIT A.
(c) COMPANY STOCK OPTIONS. Employee's options to purchase
60,000 shares of Common Stock, par value $.01 per share, of the Company, which
are exercisable at an exercise price of $17.88 per share, shall remain
outstanding and exercisable in accordance with the terms thereof.
(d) REPRICING OF METRETEK WARRANTS. The exercise price of the
Warrants to purchase 60,000 shares of Metretek Common Stock, issued on March 17,
2000, to the Employee (the "Metretek Warrants"), shall be reduced by $1.50 per
share of Metretek Common Stock.
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(e) MEDICAL INSURANCE. The Company agrees to continue, for a
period of 90 days after the date hereof, medical insurance for Employee and the
other employees (up to three) of the Company who accept employment with New
Mercator.
5. REDEMPTION OF EMPLOYEE SHARES.
(a) REDEMPTION. On the Effective Date, Employee shall sell,
assign, transfer and deliver to the Company, and the Company shall purchase and
redeem from Employee, 2,500,000 shares of Common Stock, par value $.01 per share
(the "Company Shares") of the Company (the "Employee Shares"), which constitute
all of the Company Shares owned by Employee on the date hereof.
(b) SURRENDER OF CERTIFICATES. On the Effective Date, Employee
agrees to surrender and deliver to the Company the certificate or certificates
representing the Employee Shares, which certificate or certificates shall be
duly endorsed in blank or for transfer to the Company by the Employee, along
with duly executed stock powers in a form acceptable to the Company.
(c) NO CONFLICTING AGREEMENTS. The parties hereto hereby
acknowledge and agree that neither the Company nor Employee is or ever was a
party to any oral or written buy-sell, shareholders, close corporation or other
agreement, or proxy or voting trust agreement or arrangement, restricting or
relating to the voting or transfer of any Company shares, other than the
Stockholders Agreement.
6. CONSULTING ARRANGEMENTS.
(a) NEW MERCATOR CONSULTING AGREEMENT. On the Effective Date,
upon the terms and subject to the conditions set forth herein, the Company,
Employee and New Mercator agree to enter into a consulting agreement, in
substantially form attached hereto as EXHIBIT B and made a part hereof (the
"Consulting Agreement"), pursuant to which the Company agrees to pay a
consulting fee in the amount of $5,000 per month to the New Mercator in exchange
for which New Mercator (including Employee) agree to provide to the Company up
to 25 hours of consulting services per month, as requested by the Company, for a
period of eight (8) months.
(b) ADDITIONAL CONSULTING BY EMPLOYEE. After the expiration of
the Consulting Term (as that term is defined in the Consulting Agreement),
Employee agrees to personally provide to the Company his services, on a
consulting basis, as reasonably requested by the Company, for a consulting fee
at the rate of $200 per month, payable by the Company within thirty (30) days
after the Company receives a signed report by Employee detailing such consulting
services, including dates, times and description of services. The services to be
performed by Employee hereunder shall be consulting services in connection with
any arbitration or litigation (actual or threatened) proceedings relating to
Xxxxxx X. Xxxxxx or Intermarket Trading Company LLC. Employee shall perform any
such consulting services in good faith, in a professional manner, using his best
efforts and in compliance with all applicable laws, rules and regulations.
7. SALE OF POWERSPRING SYSTEMS.
(a) The Company agrees to sell to New Mercator the
"PowerSpring System" upon the standard terms and conditions, including price,
that it generally offers and sell the same products and services to its
customers (excluding special or limited offers, discounts and promotional sales)
for a period of two (2) years from the date hereof.
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(b) Notwithstanding Section 7(a), the Company shall have no
obligation to offer and sell the "PowerSpring System" to the public, and Section
7(a) shall not prevent the Company from modifying the PowerSpring System from
time to time.
8. ONGOING COMPANY MATTERS.
(a) DEFINITION OF CONFIDENTIAL INFORMATION. For purposes of
this Agreement, the term "Confidential Information" shall mean 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 of
the Company; provided, however, that the term "Confidential Information" shall
not mean or include (i) information primarily related to the Mercator Assets or
to the business of Mercator as it was operated by Employee on behalf of the
Company prior to the date hereof; or (ii) any information that has been
generally made available to the public, other than as a direct or indirect
result of a disclosure by Employee.
(b) CONFIDENTIALITY COVENANT. Employee agrees that in the
course of his employment with the Company, he has acquired or obtained knowledge
or information about the "Confidential Information" as defined above. Employee
understands and agrees that such information has been disclosed to him in
confidence and for use only on behalf of the Company. Employee understands and
agrees that (i) he will keep such Confidential Information strictly confidential
at all times, (ii) he will not directly or indirectly disclose, communicate or
otherwise reveal any Confidential Information to any Person, and (iii) he will
not make use of any Confidential Information on his own behalf or on behalf of
any other Person. In the event that Employee receives a subpoena or any other
written or oral request by any court or governmental authority for any
Confidential Information, or any other information concerning the Company or any
affiliate, Employee shall, within two (2) business days from his actual notice
of the service of such subpoena or other request, notify the Company in writing,
and provide a copy to the Company of such subpoena or other request if in
writing, and/or disclose the nature of the request for information if oral.
(c) RETURN OF MATERIALS. Employee has returned or will
immediately return to the Company, without making or retaining any copy,
duplicates, reproductions, excerpts or other records of, all Confidential
Information, whether written or electronically created or stored, including all
copies, summaries, and abstracts thereof, and all memoranda, notes, records,
reports, books, letters, customer lists, manuals, and other writings or
documents whatsoever pertaining thereto. Employee shall also leave with or
return to the Company all Company credit cards, keys, computer access codes,
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disks and any other physical or personal property of the Company that the
Employee received, prepared, or helped to prepare in connection with his
employment.
(d) INTELLECTUAL PROPERTY. During the term of Employee's
employment with the Company, Employee had access to ideas, improvements,
techniques, modifications, processes, inventions, developments, discoveries,
trade secrets, trademarks, service marks, copy rights, trade names, business
plans and any work of authorship of the Company ("Intellectual Property")
developed, conceived, created, made, devised, discovered, acquired or acquired
knowledge of, by Employee, either by himself or in conjunction with any other
person, which related to, 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 is and shall 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
during the Employment Period were 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 reasonable assistance,
at the Company's expense, 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. The foregoing agreements and obligations do not apply to
any Intellectual Property that pertains primarily to the business of Mercator.
9. GUARANTY BY METRETEK. Metretek hereby guarantees the full and prompt
payment and performance by the Company of its obligations to make payments to
Employee under Section 4(a) hereof and the obligation of the Company to pay the
consulting fees required to be paid to New Mercator pursuant to Section 6 hereof
and pursuant to the Consulting Agreement. This Guaranty is an absolute and
unconditional guaranty of payment and of performance. Metretek's liability
hereunder, is direct and may be enforced immediately without Employee being
required to resort to any other right, remedy, or security, and this Guaranty
shall be enforceable immediately against Metretek after Company's failure to
comply with the terms of this Agreement or the Consulting Agreement, without the
necessity for any suit or proceedings on Employee's part of any kind or nature
whatsoever against Company, and without the necessity of (i) any notice of
non-payment, non-performance, or non-observance, (ii) the continuance of any
such default, (iii) notice of acceptance of this Guaranty or of Employee's
intention to act in reliance hereon, or (iv) other notice or demand to which
Metretek might otherwise be entitled prior to Employee's enforcement of this
Guaranty, all of which Metretek hereby waives: provided, however, that Metretek
does not waive, and shall be entitled to assert against Employee if he attempts
to enforce the guaranty, any defense or claim that the Company is entitled to
assert in good faith against Employee hereunder. Metretek hereby expressly
agrees that the validity of this Guaranty and the obligations of Metretek
hereunder shall in no manner be terminated, affected or impaired by reason of
the assertion or the failure to assert by Employee against Company any of the
rights or remedies pursuant to the provisions of this Agreement or the
Consulting Agreement.
10. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. In order to
induce the Company, Metretek and Mercator to enter into and to perform their
obligations under this Agreement, Employee
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and New Mercator hereby represent, warrant and covenant to and for the benefit
of the Company, Metretek and Mercator as follows:
(i) AUTHORITY OF THE EMPLOYEE. Employee has all
requisite right, capacity, power and authority to execute and deliver this
Agreement and to perform his obligations hereunder including, but not limited
to, the sale of the Company Shares to the Company. Neither the execution and
delivery by Employee of this Agreement nor the consummation by the Employee of
his obligations hereunder will directly or indirectly, violate, conflict with,
or constitute a breach of or default under any contract, agreement, obligation,
note, security agreement, mortgage, lease, loan agreement or other agreement or
commitment to which Employee is a party or by which he is bound.
(ii) AUTHORITY OF THE NEW MERCATOR. New Mercator has
all requisite right, capacity, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Neither the execution and
delivery by the Employee Company of this Agreement nor the consummation by New
Mercator of his obligations hereunder will directly or indirectly, violate,
conflict with, or constitute a breach of or default under; (A) the Articles of
Organization and Operating Agreement of New Mercator; (B) any federal, state, or
local law, rule, regulation, statute or ordinance; or (C) any contract,
agreement, obligation, note, security agreement, mortgage, lease, loan agreement
or other agreement or commitment to which New Mercator is a party or by which it
or its assets are bound.
(iii) ENFORCEABILITY. This Agreement constitutes a
legal, valid and binding obligation of Employee and New Mercator, enforceable
against Employee and New Mercator in accordance with its terms, except as such
enforcement may be limited by any applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws generally
relating to or affecting the enforcement of creditors' rights and remedies and
by general privileges of equity, whether applied in a proceeding in equity or at
law. No consent, authorization, permit or approval of, or notice to or filing
with, or waiver by, any Governmental Authority or any other Person is necessary
for Employee and New Mercator to execute and deliver this Agreement or to
perform their respective obligations hereunder.
(iv) PROCEEDINGS. There are no actions, suits,
arbitration, investigation or other proceedings ("Proceedings") are pending or,
to the best of Employee's knowledge, threatened by or before any court,
arbitrator, or Governmental Authority involving Employee or New Mercator
directly or indirectly affecting the ability of Employee or New Mercator to
enter into this Agreement or to perform their respective obligations hereunder.
(v) OWNERSHIP OF EMPLOYEE SHARES. Employee is the
sole legal, beneficial and record owner of, and has good, valid and marketable
title to, the Employee Shares, free and clear of any restrictions on transfer,
mortgages, pledges, security interests, liens, charges, equities, claims,
trusts, encumbrances, agreements, rights on first refusal, limitations of voting
rights, sale or obligations to other rights, restrictions or limitations of any
kind or nature whatsoever, except for the Stockholders Agreement.
(b) REPRESENTATIONS AND WARRANTIES OF THE COMPANY, METRETEK
AND MERCATOR. In order to induce Employee and New Mercator to enter into and
perform their obligations under this Agreement, the Company, Metretek and
Mercator hereby represent, warrant, and covenant to for the benefit of Employee
as follows:
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(i) AUTHORITY. Except for the approval and consent of
the National Bank of Canada, each of the Company, Metretek and Mercator has all
requisite right, capacity, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. Except for the approval and
consent of the National Bank of Canada, neither the execution or the delivery by
the Company, Metretek and Mercator of this Agreement nor the consummation by
them of their obligations hereunder will directly or indirectly, violate,
conflict with, or constitute a breach of or default under (A) its Certificate of
Incorporation or Bylaws; (B) any federal, state, or local law, rule, regulation,
statute or ordinance; or (C) any contract, agreement, obligation, note, security
agreement, mortgage, lease, loan agreement or other agreement or commitment to
which it is a party or by which they are bound.
(ii) ENFORCEABILITY. This Agreement constitutes a
legal, valid and binding obligation of the Company, Metretek and Mercator,
enforceable against each of them in accordance with its terms, except as such
enforcement may be limited by any applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws generally
relating to or affecting the enforcement of creditors' rights and remedies and
by general privileges of equity, whether applied in a proceeding in equity or at
law. No consent, authorization, permit or approval of, or notice to or filing
with, or waiver by, any Governmental Authority or any other Person is necessary
for the Company, Metretek and Mercator to execute and deliver this Agreement or
to perform its obligations hereunder.
(iii) PROCEEDINGS. There are no Proceedings pending
or, to the best of Employee's knowledge, threatened by or before any court,
arbitrator, or Governmental Authority against the Company, Metretek and Mercator
directly or indirectly affecting their ability to enter into this Agreement or
to perform their obligations hereunder.
11. MUTUAL RELEASE.
(a) RELEASE BY EMPLOYEE. Employee, on his own behalf and on
behalf of any present and future spouse, heirs, estate, successors and assigns,
hereby irrevocably, fully, finally and forever releases and discharges the
Company, Metretek and Mercator and any parents, subsidiaries, affiliates and
their respective officers, directors, shareholders, employees, agents and
representatives, and their successors and assigns (the "Company Released
Parties") from and against any and claims, demands, obligations,
responsibilities and causes of actions of any kind or nature whatsoever, whether
statutory, tort, contract or any other theory of recovery, in law or equity, and
whether now known or unknown, which Employee now has, ever had or in the future
may have accruing on or at any time prior to the date hereof, based on or in any
way relating to the Company, Metretek or Mercator, and the Termination
Instruments and Employee's employment with the Company or the termination of
that employment, including, but not limited to, any and all claims of Employee:
(i) arising or which may arise out of or relating to
Employee's relationship with the Company, Metretek or Mercator as an officer,
director, employee, shareholder, creditor or any other capacity;
(ii) arising under the Terminated Instruments and any
other contract, expressed or implied, written or oral (except as otherwise
expressly provided herein);
(iii) for wrongful dismissal or termination of
employment;
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(iv) relating to back wages, salary, overtime,
bonuses, commissions, reinstatement, insurance coverage, benefits, premiums,
medical expenses, business expenses, or other employee compensation or benefits;
(v) arising under any applicable federal, state,
local or foreign statute, law, order, ordinance, regulation or the like, or case
law, that relate to employment or employment practices, including those that
prohibit discrimination based upon age, race, color, religion, sex, national
origin, handicap, disability or any other protected characteristic or unlawful
basis, including, but not limited to, any claim under the Age Discrimination in
Employment Act of 1967 (as amended by the Older Worker's Benefit Protection Act
of 1990), the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal
Pay Act of 1963, the Fair Labor Standards Act, Section 1981 of the Civil Rights
Acts of 1866 and 1871, the Vietnam Era Veterans Readjustment Assistance Act, the
Family Medical Leave Act of 1993, the Employee Retirement Income Security Act of
1990, the American with Disability Act of 1992 (each of such Acts, as amended),
and any similar statutes, laws, orders, ordinances, regulations or the like, or
case law, of the State of Colorado, or any political subdivision thereof;
(vi) arising under or based upon any other federal,
state, local or foreign statute, law, order, rule, regulation, ordinance on the
like, or case law;
(vii) related to wrongful or retaliatory discharge,
breach of contract, harassment, tortious or harassing conduct, breach of public
policy, infliction of emotional or mental injury or distress, physical or mental
injury, pain and suffering, negligent and intentional torts, fraud,
misrepresentation, defamation, libel, slander, interference with contract,
breach of fiduciary duty or any other theory of recovery by Employee as an
employee or concerning compensation, wages, hours, or terms or conditions; and
(viii) any and all claims for damages, including
without limitation, punitive or compensatory damages, or for attorney's fees,
expenses, costs, wages, injunctive or equitable relief;
provided, however, that such release and discharge shall not apply to the
Company's obligations to indemnify and hold Employee harmless from and against
any and all costs, including attorney's fees, and liabilities that Employee may
incur as a result of having been an officer, director or employee of the
Company, and the Company hereby agrees to indemnify and hold Employee harmless
from and against any and all costs and liabilities to the extent permitted by
Delaware laws and the Company's Certificate of Incorporation and Bylaws.
(b) RELEASE BY THE COMPANY. The Company, Metretek and
Mercator, for themselves, their officers, directors, shareholders, employees,
agents, representatives, successors and assigns, do hereby irrevocably, fully,
finally and forever release and discharge any and all claims and rights they may
have against, Employee, and his spouse, heirs, executors, administrators,
representatives, successors and assigns ("Employee Related Parties") from and
against any and claims, demands, obligations, responsibilities and causes of
actions of any kind or nature whatsoever, whether statutory, tort, contract or
any other theory of recovery, in law or equity, and whether now known or
unknown, which Company now has, ever had or in the future may have accruing on
or at any time prior to the date hereof, based on or in any way relating to the
Employee, to Employee's employment with the Company or the termination of that
employment including but not limited to, any and all claims:
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(i) arising or which may arise out of or relating to
Employee's relationship with the Company, Metretek or Mercator as an officer,
director, employee, shareholder, creditor or any other capacity;
(ii) arising under the Terminated Instruments and any
other contract, expressed or implied, written or oral (except as otherwise
expressly provided herein);
(iii) for wrongful dismissal or termination of
employment;
(iv) relating to back wages, salary, overtime,
bonuses, commissions, reinstatement, insurance coverage, benefits, premiums,
medical expenses, business expenses, or other employee compensation or benefits;
(v) arising under any applicable federal, state,
local or foreign statute, law, order, ordinance, regulation or the like, or case
law, that relate to employment or employment practices, including those that
prohibit discrimination based upon age, race, color, religion, sex, national
origin, handicap, disability or any other protected characteristic or unlawful
basis, including, but not limited to, any claim under the Age Discrimination in
Employment Act of 1967 (as amended by the Older Worker's Benefit Protection Act
of 1990), the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Equal
Pay Act of 1963, the Fair Labor Standards Act, Section 1981 of the Civil Rights
Acts of 1866 and 1871, the Vietnam Era Veterans Readjustment Assistance Act, the
Family Medical Leave Act of 1993, the Employee Retirement Income Security Act of
1990, the American with Disability Act of 1992 (each of such Acts, as amended),
and any similar statutes, laws, orders, ordinances, regulations or the like, or
case law, of the State of Colorado, or any political subdivision thereof;
(vi) arising under or based upon any other federal,
state, local or foreign statute, law, order, rule, regulation, ordinance on the
like, or case law;
(vii) related to wrongful or retaliatory discharge,
breach of contract, harassment, tortious or harassing conduct, breach of public
policy, infliction of emotional or mental injury or distress, physical or mental
injury, pain and suffering, negligent and intentional torts, fraud,
misrepresentation, defamation, libel, slander, interference with contract,
breach of fiduciary duty or any other theory of recovery by Employee as an
employee or concerning compensation, wages, hours, or terms or conditions; and
(viii) any and all claims for damages, including
without limitation, punitive or compensatory damages, or for attorney's fees,
expenses, costs, wages, injunctive or equitable relief.
(c) LIMITATION ON RELEASE. The foregoing releases in this
Section 11 shall not apply to and shall not release or waive any rights or
claims of any party hereto may have related to this Agreement or the Consulting
Agreement.
(d) WAIVER. The parties hereto understand that this release
covers claims which the parties know about as well as claims the parties may not
know about. The parties hereto expressly waive all rights under Section 1542 of
the California Civil Code, which Section the parties hereto have read and
understood, and which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release,
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which if known by him must have materially affected this
settlement with the debtor."
12. COVENANT NOT TO XXX.
(a) BY EMPLOYEE. Employee represents, warrants and covenants
to and for the benefit of the Company, Metretek and Mercator that:
(i) NO EXISTING PROCEEDINGS. Neither he nor any
person acting by, through or on behalf of him has filed any Proceeding against
any Company Released Party with any court, arbitrator or governmental authority.
(ii) COVENANT NOT TO XXX. He will not, directly or
indirectly, commence, file, encourage or participate in any Proceedings against
any Company Released Party with respect to any matter released in Section 11
hereof, unless and until required to do so by court order or pursuant to a
lawful subpoena.
(iii) NO ASSIGNMENT OF CLAIMS. He has not assigned or
otherwise transferred, by way of subrogation, operation of law, or otherwise,
any right to any other person to assert any claims of any kind or character
against any Company Released Party.
(b) BY THE COMPANY, METRETEK AND MERCATOR. The Company,
Metretek and Mercator hereby represents, warrants and covenants to and for the
benefit of Employee that:
(i) NO EXISTING PROCEEDINGS. Neither they nor any
person acting by, through or on their behalf have filed any Proceeding against
any Employee Release Party with any court, arbitrator or governmental authority.
(ii) COVENANT NOT TO XXX. They will not, directly or
indirectly, commence, file, encourage or participate in any Proceedings against
any Employee Released Party with respect to any matter released in Section 11
hereof, unless and until required to do so by court order or pursuant to a
lawful subpoena.
(iii) NO ASSIGNMENT OF CLAIMS. They have not assigned
or otherwise transferred, by way of subrogation, operation of law, or otherwise,
any right to any other person to assert any claims of any kind or character
against any Employee Released Party.
13. NON-ADMISSION. This Agreement and/or any payments made hereunder
are not intended to be, shall not be construed as, and are not an admission or
confession by any party hereto of any wrongdoing or illegal or actionable acts
or omissions. This Agreement shall not be admissible evidence in any judicial,
administrative or any other legal proceeding, except solely in connection with
construction of the terms of the Agreement and its enforcement. Employee hereby
represents and agrees to each other party hereto that he or it shall not
directly or indirectly make, and shall not authorize any person to make, (i) any
written or oral statements, suggestions, or representations that any party
hereto has made or implied any such admission or confession; or (ii) any written
or oral negative, disparaging or adverse statements, suggestions and
representations of or concerning any released party; and (iii) Metretek may make
any disclosure required under applicable federal or estate securities laws of
the rules and regulations of the Nasdaq stock market, provided such disclosure
is approved by Employee, which approval shall not be unreasonably withheld or
delayed.
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14. CONFIDENTIALITY OF THIS AGREEMENT. Each party hereto covenants and
agrees not to disclose, directly or indirectly, to any person any information
concerning the underlying facts, claims, terms, amounts or existence of this
Agreement, or the substance of any discussions or negotiations leading up to
this Agreement. Notwithstanding the foregoing; (i) a party may disclose any
information required to comply with applicable federal, state or local tax laws,
required by legal process of any court or governmental authority; (ii) in
response to any inquiry a party may describe the positions Employee held and the
compensation he received, the job duties and functions he performed, and the
date of commencement and termination of his employment; (iii) Metretek may make
any disclosure required under applicable federal or state securities laws or the
rules and regulations of the Nasdaq Stock Market, provided such disclosure is
approved by Employee, which approval shall not be unreasonably withheld or
delayed, and provided further that Employee approval shall not be required for
the repeat of any such disclosure that has been previously approved by Employee;
(iv) a party may disclose the Agreement to legal counsel for purposes of
negotiating the Agreement and or enforcing or defending the party's rights
hereunder; and (v) a party may disclose so much of the Agreement as is necessary
for purposes of the preparation of federal and state income tax returns. The
parties agree that it would be difficult to ascertain the amount of a party's
damages in the event of a material breach of this Section 14, and that
accordingly the parties agree that in the event of a material breach of this
Section 14 the non-breaching party shall be entitled to recover from the
breaching party liquidated damages in the amount of $25,000. The parties hereby
agree that $25,000 represents a reasonable estimate of the damages that would be
incurred as a result of a breach of this Section 14 and that it is not to be
considered a penalty.
15. REASONABLE COOPERATION. Each of the parties hereto agrees with all
other parties hereto to fully cooperate and take all additional actions and
execute, deliver and file all additional documents, instruments, and releases
that may be reasonably necessary or appropriate to give effect and implement the
purposes, intentions and terms of this Agreement.
16. VOLUNTARY COUNSEL AND ACT. Employee acknowledges and agrees that he
has had an adequate opportunity and reasonable time to review this Agreement and
its terms. He understands all of the terms of this Agreement, and agrees that
such terms are fair, reasonable and not the result of any fraud, duress,
coercion, pressure or undo influence exercised by or on behalf of any Released
Parties. Employee has agreed to enter into this Agreement and all the terms
hereof knowingly, freely and voluntarily. He has been encouraged to and has had
the opportunity to be represented and advised by independent counsel
representing his independent interests.
17. CONSIDERATION AND REVOCATION PERIODS. By executing this Release,
Employee acknowledges: (i) Employee was offered a minimum of 21 days to review
this Release and to consider whether to sign this Release and has either
accepted or waived such period; (ii) Employee has been advised that he has 7
days following execution of this Agreement to revoke this Agreement (the
"Revocation Period") and which revocation must be in writing and delivered to
the Company at its principal executive offices (attention: The President),
either in person or by mail within such 7 day period. Assuming the Employee does
not revoke this Agreement during the Revocation Period, the later of (i) the
first day after the expiration of the Revocation Period, and (ii) the day of
Metretek's receipt of the required consent and waiver by the Bank is referred to
herein as the "Effective Date". Notwithstanding anything to the contrary
contained herein, this Agreement shall not be effective or enforceable, and the
obligation of the parties under Sections 2 through 7 of this Agreement shall not
become effective, until the Effective Date, and then only if the Revocation
Period has expired without Employee revoking this Agreement. Notwithstanding
anything to the contrary contained herein, this Agreement shall not be effective
or enforceable, and the obligation of the parties under Sections 2
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through 7 of this Agreement shall not become effective, and Employee's
resignations under Section 1 shall be rescinded, ab initio, unless the Effective
Date is on or before April 17, 2001.
18. GENERAL PROVISIONS.
(a) GOVERNING LAW AND JURISDICTION. This Agreement shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of Colorado. Any action or proceeding in connection with this Agreement
may be brought only in a state or federal court located in Denver, Colorado.
Employee hereby irrevocably submits to the non-exclusive jurisdiction of such
courts and waives any objections he may now or hereafter have as to the venue of
any such action or proceeding brought in any such court, or that any such court
deems in a convenient form.
(b) ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the
Schedules and Exhibits hereto, constitutes the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous negotiations, discussions,
understandings, arrangements, representations, warranties, agreements and
understandings, whether written or oral. This Agreement may not be amended or
modified in whole or in part except in a writing signed by all parties hereto.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon each party hereto and his or spouse, heirs, executors, administrators,
representatives, successors and permitted assigns. No party hereto shall have
the right to assign this Agreement or any of his or its obligations or rights
hereunder without the prior written consent of all other parties hereto.
(d) COUNTERPART. This Agreement may be executed in one or more
counterparts, including counterparts executed by less than all parties hereto,
each of which shall be deemed to be original, but all of which shall together
constitute one in the same instruments.
(e) PRONOUNS. The number and gender of each pronoun used in
this Agreement and the term "person" or "person" or the like shall be construed
to mean both the number and gender of the individual, corporation, limited
liability company, partnership, firm, trust, agency, government authority and
other entity as the context, circumstance or its antecedent may require.
(f) HEADINGS. The headings used in this Agreement are solely
for convenience of reference and shall be given no effect in the construction or
in the interpretation of this Agreement.
(g) SPECIFIC PERFORMANCE. The parties hereto acknowledge and
agree that the transactions contemplated by this Agreement are unique in that
remedies of law for any breach or threatened breach of this Agreement would be
an inadequate remedy for any loss, and that any defense in any action for
specific performance that a remedy at law would be adequate is hereby
specifically waived. Accordingly, in the event of any actual or threatened
breach of any of the terms of this Agreement, the non-breaching party shall have
the right of specific performance and injunctive relief given affect to its
right under this Agreement, in addition to any and all of the rights and
remedies, at law or in equity, and also its rights and remedies are cumulative.
(h) 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 business day delivery, with
written verification
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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, to:
PowerSpring, Inc.
000 00xx Xxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: A. Xxxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies to:
Metretek Technologies, Inc.
000 00xx Xxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attn: W. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and:
Kegler, Brown, Hill & Xxxxxx Co., L.P.A.
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Employee or New Mercator, to:
Xxxx X. Xxxxxxx
0000 X. Xxxxxxx Xx.
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
or at:
000 00xx Xxxxxx, Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to:
Ducker, Montgomery, Xxxxx & Xxxxxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
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(o) 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.
(p) 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.
(q) 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.
(r) WAIVER OF SET OFF. Upon Employee's performance of his
obligations under Sections 2(a) and 5 of this Agreement, the Company and
Metretek waive all claims of set off that they may have against Employee either
under this Agreement or as a result of any other act, omission or occurrence of
any kind or nature whatsoever, whether known or unknown. Upon the performance by
the Company, Metretek and Mercator of their obligations under Sections 2(a) and
4 of this Agreement, Employee waives all claims of set off that he may have
against the Company, Metretek or Mercator either under this Agreement or as the
result of any other act, omission or occurrence of any kind or nature
whatsoever, whether known or unknown.
(s) 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 any corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization, estate, or any other form of business or entity.
(iv) The term "Governmental Authority" means any
federal, state, local or foreign government, quasi-governmental administration
or regulatory body, agency or authority.
(v) The term "Person" means and includes any
individual, Entity or Governmental Authority.
(vi) 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.
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(vii) 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.
(viii) Each reference to an Article or a Section
means such Article or Section of this Agreement.
(ix) Each reference to a SCHEDULE or EXHIBIT means
such SCHEDULE or EXHIBIT to this Agreement.
(Next page is the Signature Page)
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SIGNATURE PAGE
--------------
NOTICE - - PLEASE READ CAREFULLY BEFORE SIGNING
THIS TERMINATION AGREEMENT AND MUTUAL RELEASE IS A LEGALLY BINDING
DOCUMENT WITH IMPORTANT LEGAL CONSEQUENCES, INCLUDING A RELEASE OF ALL CLAIMS,
KNOWING AND UNKNOWING.
TO EMPLOYEE: YOU ARE ENTITLED TO A PERIOD OF AT LEAST TWENTY-ONE (21)
CALENDAR DAYS IN WHICH TO REVIEW AND CONSIDER THIS DOCUMENT BEFORE SIGNING IT.
YOU ALSO HAVE THE RIGHT TO REVOKE THIS AGREEMENT WITHIN SEVEN (7) CALENDAR DAYS
AFTER SIGNING IT, BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO A. XXXXXXX
XXXXXXX, PRESIDENT, POWERSPRING, INC. 000 00XX XXXXXX, XXXXX 000 XXXXX, XXXXXX,
XXXXXXXX 00000, WITHIN SUCH SEVEN (7) DAY PERIOD. YOU ARE STRONGLY ENCOURAGED TO
CONSULT WITH YOUR OWN ATTORNEY BEFORE SIGNING THIS DOCUMENT. BY SIGNING BELOW,
YOU ACKNOWLEDGE THAT YOU HAVE READ, FULLY UNDERSTOOD AND VOLUNTARILY AGREED TO
ALL OF THE PROVISIONS CONTAINED IN THIS TERMINATION AGREEMENT AND MUTUAL
RELEASE.
TO ALL PARTIES: EACH OF THE UNDERSIGNED PARTIES STATES THAT HE OR IT
HAS CAREFULLY READ THE FOREGOING AND UNDERSTAND THE CONTENTS THEREOF, AND THAT
EACH EXECUTES THE SAME AS HIS OR ITS OWN FREE AND VOLUNTARY ACT.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Termination Agreement and Mutual Release as of the date set forth below.
EMPLOYEE:
/s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
MERCATOR ENERGY, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Its: President
------------------------------
POWERSPRING, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
-------------------------------
Its: President
------------------------------
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METRETEK TECHNOLOGIES, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
-----------------------------
Its: Executive Vice President
----------------------------
MERCATOR ENERGY INCORPORATED
By: /s/ A. Xxxxxxx Xxxxxxx
-----------------------------
Its: Vice President
----------------------------
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SCHEDULES AND EXHIBITS
----------------------
Schedules and Exhibits will be
furnished supplementally upon request.
