Exhibit 10.4
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
EFFECTIVE MARCH 20, 2006
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
entered into as of March 20, 2006 (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").
RECITALS
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 that certain
Amended and Restated Employment Agreement, dated as of November 1, 2004, as
amended December 5, 2005 (as the same may hereafter be amended, restated or
otherwise modified from time to time, the "Employment Agreement"); and
WHEREAS, the Compensation Committee of the Board of Directors authorized
and approved of additional amendments to the Employment Agreement, including
without limitation the extension of the term of employment and the modification
of certain aspects of 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 previous 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
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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 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, 2009, 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 Death. Officer's employment hereunder shall automatically
terminate upon his death, and the Corporation shall pay to his designated
beneficiaries (or, if none, to his estate) the pro rata portion of his Base
Salary and all other accrued and vested but unpaid compensation through the date
of his death, plus an amount equal to the Severance Amount (as such term is
defined below) computed and payable as provided in Section 2.11.
2.3 Disability. The Corporation shall have the right, in its sole
discretion, to terminate Officer's employment hereunder in the event of
Officer's "Disability" upon giving at least 30 days written notice to Officer of
its intention to terminate Officer's employment. In such event, the Corporation
shall pay to Officer the pro rata portion of his Base Salary and all other
accrued and vested but unpaid compensation through the date of termination, plus
an amount equal to the Severance Amount computed and payable as provided in
Section 2.11. For purposes of this Agreement, "Disability" means the physical or
mental inability of Officer, due to illness, accident or other incapacity, to
effectively perform the essential functions of his duties hereunder for any
period of 90 consecutive days, or 180 days during any twelve-month period, or
which results from an incapacity determined to be total and permanent as
determined by an independent physician selected by the Company.
2.4 By the Corporation for Cause. The Corporation shall have the
right, in its sole discretion, to terminate Officer's employment hereunder at
any time for "Cause" immediately upon giving written notice of termination to
Officer. Upon his termination for Cause, Officer shall be entitled to receive
only the accrued but unpaid portion of his Base Salary through the date of
termination, plus any accrued and vested but unpaid bonuses and other
compensation as of such date, but Officer shall not be entitled to any other
bonus or incentive compensation for the fiscal year in which he was terminated.
In addition, any unvested portion of any option to purchase shares of common
stock, par value $.01 per
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share, of the Corporation (the "Stock Options") shall expire without vesting.
Officer shall have no right to receive any other or further compensation or
benefits. For purposes of this Agreement, "Cause" means only the following:
(a) The failure or refusal by Officer to perform any of his
duties hereunder, or the breach by Officer of any of his obligations, covenants,
representations, warranties or acknowledgments hereunder, which failure, refusal
or breach remains unremedied or uncured for a period of twenty (20) business
days after specific written notice thereof is given to Officer by the Board or
the Chairman;
(b) Any act of dishonesty, disloyalty, insubordination, fraud,
breach of fiduciary duty or bad faith by Officer that is materially detrimental
to the Corporation or that results in substantial personal enrichment of
Officer; or
(c) The conviction of Officer, or the entering of a guilty plea
or a plea of no contest by Officer with respect to (i) a felony, or (ii) a
misdemeanor that involves theft, fraud or dishonesty, results in Officer's
imprisonment or impairs Officer's ability to perform his duties hereunder or
damages the reputation or business of the Company.
2.5 By the Corporation Without Cause. The Corporation shall have the
right, in its sole discretion, to terminate Officer's employment hereunder at
any time effective upon the giving of written notice of such termination to
Officer (or at such later date as the notice provides). In such event, Officer
shall be entitled to receive the following: (a) all amounts of the Base Salary
and any bonuses and other earned but unpaid compensation that are earned,
accrued or vested but unpaid through the date of termination; (b) an amount
equal to the Severance Amount, computed and payable as provided in Section 2.11;
and (c) any rights and benefits of any of the employee benefits earned, accrued
or vested (including under any plans in which he was participating) as of the
date of such termination, subject to the terms and conditions of such plans and
benefits, but Officer shall not attain vested status in any plans or benefits in
which he is not vested on the date of termination.
2.6 Termination by Officer. Officer agrees not to voluntarily
terminate his employment hereunder except by giving at least sixty (60) days
written notice to the Company, except as provided in Section 2.8. Upon such
voluntary termination by Officer, Officer shall be entitled to receive the
following: (a) the accrued but unpaid portion of his Base Salary and any bonuses
and other compensation that are earned, accrued or vested but unpaid through the
date of termination; (b) an amount equal to the Severance Amount, computed and
payable as provided in Section 2.11; and (c) any rights and benefits of any of
the employee benefits earned, accrued or vested (including under any plans in
which he was participating) as of the date of such termination, subject to the
terms and conditions of such plans and benefits, but Officer shall not attain
vested status in any plans or benefits in which he is not vested on the date of
termination.
2.7 Compensation Upon Termination of Employment Following a Change in
Control.
(a) Amount of Compensation. If, during the Employment Term, a
"Change in Control" (as defined below) of either the Corporation or Metretek
occurs, and within three years after such date the Corporation shall terminate
Officer's employment without "Cause" or the employment of Officer shall be
terminated by Officer for "Good Reason" (as defined in below), then:
(i) The Corporation shall pay to Officer in a lump sum in
cash within 30 days after the date of termination the aggregate of the following
amounts:
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(A) To the extent not theretofore paid, the Base Salary
through the date of termination at the rate in effect on the date the notice of
termination was given along with any earned but unpaid bonuses or other
compensation; and
(B) the Severance Amount; and
(C) In the case of compensation previously deferred by
Officer, all amounts of such compensation previously deferred and not yet paid
by the Company; and
(ii) The Corporation shall, promptly upon submission by
Officer of supporting documentation, pay or reimburse to Officer all costs and
expenses paid or incurred by Officer prior to the date of termination which
would have been payable under this Agreement if Officer's employment had not
terminated; and
(iii) For a period of two years from the date of
termination, Officer and his family shall be permitted to continue to
participate in all life, accidental death, disability, medical, dental and other
insurance plans of the Company. If, despite the provisions of this Section 2.7,
benefits shall not be available under any of such plans because Officer is no
longer an employee of the Company, then the Corporation itself shall, to the
extent necessary, pay or provide for payment of benefits to Officer and/or
Officer's family, or where applicable, pay or provide to Officer and/or
Officer's family the difference between the benefits payable pursuant to this
Section 2.7 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.
(b) Definition of Change in Control. For the purpose of this
Agreement, a "Change in Control" of the shall be deemed to have occurred only
if:
(i) Any person or group (as such terms are used in Sections
13 (d) (3) and 14 (d) (2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") acquires the beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of 50%
or more of the aggregate voting power of all classes of the Corporation's then
outstanding voting securities entitled to vote generally in the election of
directors of the Corporation; provided, however, that the following acquisitions
shall not constitute a Change in Control: (I) any acquisition directly from the
Corporation (excluding an acquisition by virtue of the exercise of a conversion
privilege), (II) any acquisition by the Corporation or any subsidiary of the
Corporation, or (III) any acquisition by any employee benefit plan (or related
trust) for employees or any subsidiary of the Corporation; or
(ii) Individuals who, as of the date hereof, constitute the
Board of Directors of the Corporation (the "Board" generally, and as of the date
hereof, the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election by the
Corporation's stockholders, was approved by a vote of at least three-fifths of
the directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Corporation, as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) shall be, for purposes of
this Agreement, considered as though such individual were a member of the
Incumbent Board; or
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(iii) Approval by the Corporation of a reorganization,
merger, combination, or consolidation, in each case, unless, following such
reorganization, merger, combination, or consolidation, (A) more than 50% of,
respectively, the then outstanding shares of common stock of the corporation or
other entity resulting from such reorganization, merger, combination or
consolidation and the aggregate voting power of the then outstanding voting
securities of the resulting corporation or other entity entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the outstanding Common Stock and
outstanding voting securities of the Corporation immediately prior to such
reorganization, merger, combination, or consolidation, in substantially the same
proportion as their ownership immediately prior to such reorganization, merger,
combination, or consolidation, and (B) at least a majority of the members of the
board of directors of the corporation or other entity resulting from such
reorganization, merger, combination or consolidation were members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such reorganization, merger, combination or consolidation; or
(iv) Approval by the Corporation of the sale or other
disposition of all or substantially all of the assets of the Corporation, other
than to a corporation or other entity with respect to which following such sale
or other disposition the conditions described in clauses (A) and (B) of Section
2.7(b)(iii) are satisfied.
(c) Definition of Good Reason. For purposes of this Agreement,
"Good Reason" means:
(i) (A) The assignment to Officer of any position,
authority, duties or responsibilities inconsistent in any respect with Officer's
position (including, without limitation, status, offices, title and reporting
requirements), authority, duties or responsibilities, prior to the Change in
Control, or (B) any other action by the Corporation which results in a
diminution in such position, authority, duties or responsibilities, other than
an insubstantial and inadvertent action which is remedied by the Corporation
promptly after receipt of notice thereof given by Officer;
(ii) Any reduction in Officer's Base Salary or in the extent
of Officer's entitlement to the employee benefits, expenses, fringe benefits or
perquisites referred to in Section 3;
(iii) The Corporation's requiring Officer to be based at an
office location or to maintain his personal residence other than where it is on
the date of the Change in Control;
(iv) The failure of the Corporation to obtain a satisfactory
agreement from any successor to the Corporation to assume and agree to perform
this Agreement;
(v) The imposition on Officer of business travel obligations
substantially greater than his business travel obligations during the fiscal
year prior to the Change in Control;
(vi) Any purported termination by the Corporation of
Officer's employment other than as expressly permitted by this Agreement; or
(vii) Any other failure by the Corporation to comply with
any provision of this Agreement, other than an insubstantial and inadvertent
failure which is remedied by the Corporation promptly after receipt of notice
thereof given by Officer.
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2.8 Expiration of Employment Term. In the event of the expiration of
the Employment Term (including any renewal or extension period hereunder)
without further renewal or extension, Officer shall be entitled to receive (a)
all amounts of the Base Salary and any bonuses and other compensation earned,
accrued or vested but unpaid through the date of expiration, (b) the Severance
Amount, computed and payable as provided in Section 2.11, and (c) any rights and
benefits of any of the employee benefits earned, accrued or vested (including
under any plans in which he was participating) as of the date of such
termination, subject to the terms and conditions of such plans and benefits, but
Officer shall not attain vested status in any plans or benefits in which he is
not vested on the date of termination.
2.9 No Further Obligation to Officer. The payments and benefits (if
any) required to be made or provided to Officer pursuant to this Section 2 shall
be in full and complete satisfaction of, and shall constitute the full
settlement and release of the Corporation by Officer with regard to, all
obligations of the Corporation owed to Officer pursuant to this Agreement. After
the date of termination of Officer's employment hereunder, the Corporation shall
have no further obligations to Officer under this Agreement except as otherwise
set forth herein.
2.10 Survival of Officer's Obligations. Notwithstanding the
termination of this Agreement by either party hereto for any reason, the
obligations of Officer under Section 6 and the other provisions thereof shall
survive the termination or expiration of this Agreement or Officer's employment
hereunder and shall remain in full force and effect for the period provided
therein.
2.11 Computation and Payment of Severance Amount. For purposes of this
Agreement, the term "Severance Amount" shall mean an amount equal to two (2)
times the sum of the following: (i) the Base Salary of Officer as in effect on
the date Officer's employment terminates, plus (ii) the average of bonus awarded
to Officer for the three fiscal years of the Corporation immediately preceding
the fiscal year in which Officer's employment is terminated (or, if the average
bonus is greater, for the last three fiscal years of the Corporation including
the fiscal year in which Officer's employment is terminated). The Severance
Amount shall be payable in approximately equal installments in accordance with
the Company's customary payroll practices over the two (2) years following the
termination of Officer's employment hereunder.
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 $245,000 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
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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.
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.
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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:
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.
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 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.
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6. Covenant Not to Compete. During the Employment Period and (i) for a
period of two (2) years 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 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,
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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 Second 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
===========
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
----------
Total Incentive Compensation $6,050,000
==========
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