EXHIBIT 10.1
EXECUTION
VERSION
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STOCK PURCHASE AGREEMENT
BY AND AMONG
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A SHAREHOLDER OF POWERSECURE, INC.
AS SELLER
AND
METRETEK TECHNOLOGIES, INC.
AS PURCHASER
DATED AS OF SEPTEMBER 10, 2004
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TABLE OF CONTENTS
Section 1. SALE AND PURCHASE OF THE POWERSECURE SHARES.......................1
Section 1.1 Sale and Purchase of the PowerSecure Shares.................1
Section 1.2 Metretek Shares.............................................1
Section 2. REPRESENTATIONS AND WARRANTIES OF SELLER..........................2
Section 2.1 Power and Authority.........................................2
Section 2.2 Enforceability..............................................2
Section 2.3 No Conflicts................................................2
Section 2.4 Consents....................................................2
Section 2.5 Proceedings.................................................2
Section 2.6 Status of PowerSecure Shares................................3
Section 2.7 Securities Representations as to the Metretek Shares........3
Section 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER ......................5
Section 3.1 Organization................................................5
Section 3.2 Power and Authority.........................................5
Section 3.3 Enforceability..............................................5
Section 3.4 No Conflicts................................................5
Section 3.5 Consents....................................................5
Section 3.6 No Proceedings..............................................5
Section 3.7 Metretek Capitalization; Metretek Shares....................6
Section 3.8 Tax-Free Reorganization.....................................6
Section 4. ADDITIONAL COVENANTS..............................................6
Section 4.1 Consummation of Transactions................................6
Section 4.2 Public Announcements........................................6
Section 4.3 Ownership of PowerSecure Shares.............................6
Section 5. CONDITIONS PRECEDENT TO PURCHASER'S CLOSING OBLIGATIONS...........7
Section 5.1 Accuracy of Representations and Warranties..................7
Section 5.2 Performance of Covenants....................................7
Section 5.3 Proceedings and Documents Satisfactory......................7
Section 5.4 No Proceedings..............................................7
Section 5.5 No Claims for PowerSecure Shares............................7
Section 5.6 Deliveries at Closing.......................................7
Section 5.7 Consents....................................................8
Section 5.8 Purchaser Board Approval....................................8
Section 5.9 PIPE Investor Approval......................................8
Section 5.10 Securities Laws.............................................8
Section 5.11 Fairness Opinion............................................8
Section 5.12 Closing With Other PowerSecure Shareholders.................8
Section 6. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS......................8
Section 6.1 Accuracy of Representations and Warranties..................8
Section 6.2 Performance of Covenants....................................8
Section 6.3 No Proceedings..............................................8
Section 6.4 Deliveries at Closing.......................................9
Section 6.5 Purchaser Board Approval....................................9
Section 6.6 PIPE Investor Approval......................................9
Section 7. THE CLOSING.......................................................9
Section 7.1 Date and Place..............................................9
Section 7.2 Deliveries by Seller........................................9
Section 7.3 Deliveries by Purchaser.....................................9
Section 7.4 Effectiveness of Closing...................................10
Section 8. SURVIVAL AND INDEMNIFICATION.....................................10
Section 8.1 Survival...................................................10
Section 8.2 Indemnification by Seller..................................10
Section 8.3 Indemnification by Purchaser...............................10
Section 8.4 Claims for Indemnification.................................10
Section 8.5 Non-Exclusive Indemnification..............................11
Section 8.6 Effect of Knowledge........................................11
Section 8.7 Contribution...............................................11
Section 9. TERMINATION AND CONFIDENTIALITY..................................12
Section 9.1 Events of Termination......................................12
Section 9.2 Effect of Termination......................................12
Section 9.3 Confidentiality............................................12
Section 10. GENERAL PROVISIONS...............................................12
Section 10.1 Governing Law..............................................12
Section 10.2 Expenses...................................................13
Section 10.3 Assignment.................................................13
Section 10.4 Successors and Assigns.....................................13
Section 10.5 Amendments.................................................13
Section 10.6 Notices....................................................13
Section 10.7 Waiver.....................................................14
Section 10.8 Severability...............................................14
Section 10.9 Headings...................................................14
Section 10.10 No Third Party Beneficiaries...............................14
Section 10.11 Construction...............................................15
Section 10.12 Schedule...................................................15
Section 10.13 Interpretation of Certain Provisions.......................15
Section 10.14 Specific Performance; Cumulative Remedies..................15
Section 10.15 Counterparts...............................................16
Section 10.16 Entire Agreement...........................................16
SCHEDULE
Schedule I Seller, PowerSecure Share Holdings and Metretek Shares to be Received
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of September 10, 2004, by and between the person listed as the "Seller" on
Schedule I hereto and signing as such on the Signature Page ("Seller"), and
Metretek Technologies, Inc., a Delaware corporation ("Purchaser" or "Metretek").
W I T N E S S E T H:
WHEREAS, PowerSecure, Inc., a Delaware corporation and majority-owned
subsidiary of Metretek ("PowerSecure"), is engaged in the business of acting as
a full-service integrator of distributed peak generation and energy information
management systems; and
WHEREAS, Seller owns issued and outstanding shares of Common Stock, par
value $.01 per share ("PowerSecure Shares") of PowerSecure; and
WHEREAS, Purchaser owns the majority of the outstanding PowerSecure Shares
and desires to purchase all of the other issued and outstanding PowerSecure
Shares from the holders thereof; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, all of
the PowerSecure Shares owned by Seller, upon the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements, representations and warranties set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
SECTION 1. SALE AND PURCHASE OF THE POWERSECURE SHARES
SECTION 1.1 SALE AND PURCHASE OF POWERSECURE SHARES. At the Closing (as
defined below), upon the terms and subject to the conditions set forth in this
Agreement, Seller shall sell, assign, transfer, convey and deliver to Purchaser,
and Purchaser shall purchase and acquire from Seller, all right, title and
interest of each Seller, legal or equitable, in and to the number of PowerSecure
Shares set forth on Schedule I hereto, which shall constitute all of the issued
and outstanding PowerSecure Shares owned by Seller on the Closing Date (as
defined below). Seller understands, acknowledges and agrees that PowerSecure is
purchasing PowerSecure Shares from other holders thereof (the "Other PowerSecure
Shareholders") contemporaneously with the purchase contemplated by this
Agreement.
SECTION 1.2 METRETEK SHARES. In payment and consideration in full for the
sale and transfer of the PowerSecure Shares by Seller to Purchaser, at the
Closing, upon the terms and subject to the conditions set forth herein,
Purchaser shall issue, sell and deliver to Seller the number of shares
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of restricted common stock, par value $.01 per share, of Purchaser (the
"Metretek Shares"), set forth on Schedule I.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce Purchaser to enter into this Agreement and to perform
its obligations hereunder, Seller does hereby represent and warrant to and for
the benefit of Purchaser as follows:
SECTION 2.1. POWER AND AUTHORITY. Seller 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 and
transfer of Seller's PowerSecure Shares to Purchaser.
SECTION 2.2. ENFORCEABILITY. This Agreement has been duly and validly
executed and delivered by Seller and constitutes a legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
SECTION 2.3. NO CONFLICTS. The execution and delivery by Seller of this
Agreement and the consummation of the transactions contemplated hereby,
including but not limited to the sale and transfer of Seller's PowerSecure
Shares to Purchaser, do not and will not, directly or indirectly, (a) violate,
conflict with, or constitute a breach of or a default (or an event that, after
the giving of notice or the lapse of time or both, would constitute a default)
under any provision of (i) any contract, obligation, promise, understanding,
arrangement, note, security agreement, mortgage, lease, license, bond,
indenture, loan or credit agreement or other instrument, commitment or agreement
("Contract") to which Seller is a party or by which Seller or the PowerSecure
Shares owned by Seller is or may be bound or affected; (ii) any federal, state,
local or foreign law, statute, rule or regulation, or any order, injunction,
writ, judgment, decree or ruling of any court, arbitrator or Governmental
Authority applicable to the Company, or any assets or properties of the Company,
except where such violation, conflict, breach or default would not have a
material adverse effect upon the ability of Seller to consummate the
transactions contemplated hereby; or (b) result in the creation or imposition of
any mortgage, lien, pledge, security interest or any other encumbrance, claim or
restriction of any kind or description against the PowerSecure Shares.
SECTION 2.4. CONSENTS. No consent, authorization, permit or approval of,
notice or report to, filing or registration with, or waiver, or any other action
("Consent") by, from or with respect to, any Person is necessary for Seller to
execute and deliver this Agreement or to perform his obligations hereunder.
SECTION 2.5. PROCEEDINGS. There is no action, suit, claim, investigation,
arbitration, hearing or other proceeding (whether civil, criminal,
administrative, investigative or informal) ("Proceeding") pending or overtly
threatened against the Seller or related to the PowerSecure Shares by, before or
involving any court, arbitrator or Governmental Authority which, if determined
adversely to Seller, would have a material adverse effect on the ability of
Seller to perform his obligations hereunder.
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SECTION 2.6. STATUS OF POWERSECURE SHARES.
(a) Seller is the sole legal, beneficial and record owner of, and
has good, valid and marketable title to, all of the PowerSecure Shares owned by
Seller, free and clear of any and all restrictions on transfer (other than any
restrictions under the Securities Act or applicable state securities laws),
mortgages, pledges, security interests, liens, charges, equities, claims,
trusts, encumbrances, agreements, rights of first refusal, preemptive rights,
limitations on voting rights, sale obligations (such as pursuant to a "co-sale",
"take-along," or "bring-along" agreements or the like), or warrants, options or
other rights, restrictions or limitations of any kind or nature whatsoever
("Liens"). Upon consummation of the transactions contemplated hereby, Purchaser
will acquire good, valid and marketable title to all of the PowerSecure Shares,
free and clear of any and all Liens.
(b) Seller is not a party to any voting trust, voting agreement,
proxy or other agreement or arrangement with respect to the voting,
transferability, purchase, sale or redemption of any capital stock of the
Company, other than the Shareholders Agreement, dated January 1, 2003, among
Purchaser, PowerSecure, Seller and the Other PowerSecure Shareholders (the
"Shareholders Agreement"). Except as provided in the Shareholders Agreement,
Seller has not granted to any Person any right, right of first refusal, right to
purchase, option or similar right with respect to the any of the PowerSecure
Shares owned by Seller.
SECTION 2.7. SECURITIES REPRESENTATIONS AS TO THE METRETEK SHARES.
(A) INVESTMENT INTENT. Seller is acquiring the Metretek Shares
solely for his own account, and not as nominee or agent for any other Person,
for investment purposes only, and not with a view to any subsequent offering,
resale or distribution of the Metretek Shares.
(B) SOPHISTICATION AND SUITABILITY. Seller has such knowledge and
experience in business and financial matters to be capable of independently
evaluating the merits and risks of an investment in the Metretek Shares. Seller
has independently evaluated the risks and merits of acquiring the Metretek
Shares and has independently determined that the Metretek Shares are a suitable
investment for Seller.
(C) ACCESS TO INFORMATION. Seller and his representatives have
made an independent investigation of Purchaser and its assets, properties,
business, liabilities, financial condition, results of operations and prospects.
Seller has received or been furnished access to a copy of the Purchaser's Annual
Report on Form 10-K for the fiscal year ended December 31, 2003, Quarterly
Reports on Form 10-Q for the periods ended March 31, 2004 and June 30, 2004,
Current Reports on Form 8-K filed with the Securities and Exchange Commission
since December 31, 2003, and Proxy Statement for the annual meeting of
stockholders held June 14, 2004. Seller and his representatives (i) have had an
opportunity to ask questions of and to receive answers from representatives of
Purchaser to their full satisfaction, (ii) have been given access to all of the
agreements, instruments, financial statements and other information concerning
the business, assets, properties, liabilities, financial condition, results of
operations and prospects of Metretek that they have requested, (iii) have had
all their questions answered and all information requested provided to
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the full satisfaction of Seller and his representatives, and (iv) have had
access to all of the information they consider necessary or appropriate in order
to evaluate the risks and merits of acquiring the Metretek Shares.
(D) NO RELIANCE. In making his investment decision, Seller not has
relied upon any representations made by Purchaser with respect to Metretek or
the Metretek Shares, other than as expressly provided in this Agreement, or upon
any projections or other estimates or forecasts of future performance provided
by Purchaser.
(E) NO REGISTRATION. Seller understands and acknowledges that the
Metretek Shares to be acquired by him hereunder have not been registered for
offer or sale to Seller under the Securities Act or under the securities laws of
any state, but are being offered and sold by Purchaser to Seller pursuant to and
in reliance upon exemptions from the registration requirements of such
securities laws, and that Purchaser is relying upon the truth and accuracy of
the representations, warranties, covenants and agreements of Seller set forth
herein in order to determine the availability of such exemptions and the
suitability of Seller to acquire the Metretek Shares.
(F) RESTRICTIONS ON RESALE. Each Seller understands and
acknowledges that, as a consequence of the restrictions on subsequent transfer
imposed by the exemptions from registration referred to in Section 2.35(f)
above, the Metretek Shares may not subsequently be offered, sold, assigned,
conveyed, pledged, hypothecated or otherwise transferred by Seller except
pursuant to an effective registration statement registering the sale or transfer
of the Metretek Shares under the Securities Act and under applicable state
securities laws or pursuant to an exemption from such registration requirements,
and the certificates representing the Metretek Shares shall bear a legend
setting forth such restrictions substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE, AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, OR
OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED UNDER SUCH ACT
AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE AND THE COMPANY RECEIVES
EVIDENCE OF SUCH EXEMPTION REASONABLY SATISFACTORY TO IT (SUCH AS AN
OPINION OF COUNSEL).
Each Seller further understands and acknowledges that Purchaser has no
obligation, direct or indirect, to register the resale of the Metretek Shares by
Seller or any other Person with the Securities and Exchange Commission or with
the securities commission or authority of any state or other jurisdiction.
(G) CONSULTATION WITH ADVISORS. Seller has had the opportunity to
consult with Seller's own legal counsel, accountants, tax advisors and other
representatives as Seller has deemed desirable with respect to the transactions
contemplated hereby and the suitability of the Metretek Shares for Seller.
Seller acknowledges and understands that legal counsel representing Purchaser
was not retained to, and does and will not, represent the interests of Seller,
and that no legal counsel has
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been retained by Purchaser or PowerSecure to represent the independent interests
of Seller or any other stockholder of PowerSecure.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to and for the benefit of seller
as follows:
SECTION 3.1 ORGANIZATION. Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
SECTION 3.2 POWER AND AUTHORITY. Purchaser has all requisite right, power
and authority, corporate or otherwise, to execute, deliver and perform its
obligations under this Agreement. The execution and delivery by Purchaser of
this Agreement and the performance by Purchaser of its obligations hereunder
have been, or on prior to the Closing will be, duly and validly authorized by
all requisite action, corporate or otherwise, of Purchaser.
SECTION 3.3 ENFORCEABILITY. This Agreement has been duly and validly
executed and delivered on behalf of it Purchaser and, subject to approval by the
Board of Directors of Purchaser, constitutes a legal, valid and binding
obligation of Purchaser, enforceable against it in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
receivership, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally, and by general
principles of equity.
SECTION 3.4 NO CONFLICTS. Except for and subject to the receipt of the
Consent of the investors in Purchaser's April-May private placement (the "PIPE
Investors") and the approval of the Board of Directors of Purchaser, the
execution and delivery by Purchaser of this Agreement and the performance by
Purchaser of the transactions and obligations contemplated hereby and thereby do
not and will not (a) violate, conflict with, contravene or constitute a breach
or a default (or an event that, after the giving of notice or the lapse or time
or both, would constitute a default) under any provision of (i) Purchaser's
Certificate of Incorporation or By-Laws; (ii) any Contract to which it is a
party or by which it or any of its assets is bound; or (iii) any license,
approval, certificate, permit or authorization held by Purchaser; or (b) violate
any applicable federal, state or local law, statute, rule, regulation or
ordinance, or any order, injunction, writ, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority, except where such violation,
conflict, breach or default would not have a material adverse effect upon
Purchaser.
SECTION 3.5 CONSENTS. Except for the Consent of the PIPE Investors and the
approval of the Board of Directors of Purchaser, no Consent by any Person is
necessary for Purchaser to execute and deliver this Agreement and to perform its
obligations hereunder.
SECTION 3.6 NO PROCEEDINGS. There are no Proceedings pending or, to the
best of its knowledge, threatened by or before any court, arbitrator or
Governmental Authority against it against or affecting it or its assets, (a) in
which any Person is seeking to restrain or prohibit, or to obtain
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damages or other relief in connection with, or to challenge the validity or
legality of, this Agreement or the transactions contemplated hereby, or (b)
which, if determined adversely to Purchaser, would be reasonably likely to have
a material adverse effect on the ability of Purchaser to perform its obligations
hereunder or to consummate the transactions contemplated hereby.
SECTION 3.7 METRETEK CAPITALIZATION; METRETEK SHARES.
(A) CAPITALIZATION OF METRETEK. The authorized capital stock of
Metretek consists of 25,000,000 shares of Common Stock, par value $.01 per
share, 1,000,000 shares of Series A Preferred Stock, par value $.01 per share,
1,000,000 shares of Series B Preferred Stock, par value $.01 per share, and
500,000 shares of Series C Preferred Stock, par value $.01 per share, of which,
as of September 1, 2004, 11,041,701 shares of Common Stock and 4,250 shares of
Series B Preferred Stock were issued and outstanding.
(B) METRETEK SHARES. The Metretek Shares have been validly
authorized and, when issued at the Closing as contemplated by this Agreement,
will be validly issued, fully paid and non-assessable.
SECTION 3.8 TAX-FREE REORGANIZATION. The issuance of the Metretek Shares
to Seller in exchange solely for PowerSecure Shares will qualify as a tax-free
reorganization for federal income tax purposes within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended, provided Seller takes
no action inconsistent with or that would cause such issuance to be disqualified
under Section 368(a).
SECTION 4. ADDITIONAL COVENANTS
SECTION 4.1 CONSUMMATION OF TRANSACTIONS. Upon the terms and subject to
the conditions of this Agreement, each of the parties hereto shall use its or
his reasonable best efforts, and will cooperate with each other, to take, or
cause to be taken, as promptly as practicable, all such actions and to do, or
cause to be done, all other things necessary to carry out its or his obligations
under this Agreement and under all other agreements contemplated by this
Agreement and to consummate and make effective the transactions contemplated
hereby and thereby, including obtaining all Consents which are necessary in
connection with the transactions contemplated hereby and thereby.
SECTION 4.2 PUBLIC ANNOUNCEMENTS. Seller shall not disclose to any Person
and shall hold strictly confidential the existence and substance of this
Agreement and the transactions contemplated hereby, except for (i) disclosure to
advisers and consultants, on a confidential basis, (ii) as required to be
disclosed pursuant to any law, rule or regulation, including income tax
reporting, or (iii) to the extent previously disclosed by Purchaser in any
filing with the Securities and Exchange Commission or in any press release.
SECTION 4.3 OWNERSHIP OF POWERSECURE SHARES. Seller hereby covenants and
agrees that, from the date hereof until the Closing or the earlier termination
of this Agreement in accordance with the terms hereof, he shall not, and shall
not offer or agree to, sell, transfer, tender,
6
assign, hypothecate or otherwise dispose of, or create or permit to exist any
encumbrance on, or grant any proxy with respect to, any of the PowerSecure
Shares, and any attempt by Seller to do the same shall be void ab initio.
SECTION 5. CONDITIONS PRECEDENT TO PURCHASER'S CLOSING OBLIGATIONS
The obligations of Purchaser to purchase the PowerSecure Shares and to
issue the Metretek Shares, and to take the other actions contemplated hereby to
be taken by Purchaser at or prior to the Closing, are subject to the
satisfaction (unless waived in writing by Purchaser), at or prior to the
Closing, of each of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each and every
representation and warranty made by Seller in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as of the
Closing Date as if made on the Closing Date.
SECTION 5.2 PERFORMANCE OF COVENANTS. Seller shall have performed,
satisfied and complied in all material respects with all covenants, agreements,
obligations and conditions under this Agreement which are to be performed,
satisfied or complied with by Seller at or prior to the Closing.
SECTION 5.3 PROCEEDINGS AND DOCUMENTS SATISFACTORY. All proceedings,
corporate or otherwise, to be taken by Seller or Purchaser in connection with
the transactions contemplated hereby, and all documents incident thereto, shall
be reasonably satisfactory in form and substance to Purchaser and its counsel.
SECTION 5.4 NO PROCEEDINGS. No Proceeding shall be pending or overtly
threatened by or before any court, arbitrator or Governmental Authority (a)
against or affecting Seller that directly or indirectly affects or involves the
ability of Seller to perform his obligations hereunder, including but not
limited to the sale and transfer of his PowerSecure Shares to Purchaser, or (b)
which seeks the restraint, prohibition or obtaining of damages or other relief
in connection with, or which questions or challenges the legality, validity or
enforceability of this Agreement, or which may have the effect of preventing,
delaying, or otherwise interfering with the consummation of the transactions
contemplated hereby.
SECTION 5.5 NO CLAIMS FOR POWERSECURE SHARES. No Person (other than Seller
and the Other PowerSecure Shareholders) shall have made or overtly threatened to
make any claim that such Person (a) is the holder or the beneficial owner of, or
has the right to acquire or to obtain beneficial ownership of, any of the shares
or any other capital stock or any voting, equity or ownership interest in, or
any other security of, or any option, warrant or right to acquire any securities
of, PowerSecure, or (b) is entitled to all or any portion of the Metretek Shares
to be issued hereunder.
SECTION 5.6 DELIVERIES AT CLOSING. Seller shall have delivered to
Purchaser at the Closing the PowerSecure Shares and each of the certificates,
instruments, documents and agreements required to be delivered to Purchaser
hereunder.
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SECTION 5.7 CONSENTS. Any and all Consents necessary to permit the
consummation of the transactions contemplated hereby shall have been duly
obtained.
SECTION 5.8 PURCHASER BOARD APPROVAL. The Board of Directors of Purchaser
shall have approved and authorized this Agreement and the transactions
contemplated hereby, including the issuance of the Metretek Shares to Seller.
SECTION 5.9 PIPE INVESTOR APPROVAL. The PIPE Investors shall have approved
and consented to, or waived their right to approve and consent to, this
Agreement and the transactions contemplated hereby, including the issuance of
the Metretek Shares to Seller, or due to the passage of time their approval and
consent shall no longer be required.
SECTION 5.10. SECURITIES LAWS. All pre-issuance registrations,
qualifications, notifications, permits and approvals, if any, required under
applicable state securities laws for the lawful execution, delivery and
performance of this Agreement and the offer, sale, and delivery of the Metretek
Shares to Seller shall have been obtained prior to the Closing and in full force
and effect on the Closing Date.
SECTION 5.11 FAIRNESS OPINION. Purchaser shall have received an opinion,
in form and substance satisfactory to Purchaser in its sole discretion, from an
investment banking firm selected by Purchaser that the sale and issuance of the
Metretek Shares hereunder by Purchaser to Seller in exchange and consideration
for the sale and transfer of the PowerSecure Shares by Seller to Purchaser is
fair, from a financial point of view, to Purchaser.
SECTION 5.12 CLOSING WITH OTHER POWERSECURE SHAREHOLDERS. Purchaser shall
have consummated the purchase, prior to or contemporaneously with the Closing
contemplated by this Agreement, of all other PowerSecure Shares owned by the
Other PowerSecure Shareholders.
SECTION 6. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to sell and deliver the PowerSecure Shares to
Purchaser and to perform his other obligations contemplated hereby to be taken
at or prior to the Closing are subject to the satisfaction (unless waived in
writing by Seller), at or prior to the Closing, of each of the following
conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Purchaser in this Agreement shall be true
and correct in all material respects as of the date of this Agreement and as of
the Closing Date as if made on the Closing Date.
SECTION 6.2 PERFORMANCE OF COVENANTS. Purchaser shall have performed,
satisfied and complied in all material respects with all of the covenants,
agreements, obligations and conditions under this Agreement which are to be
performed, satisfied or complied with by Purchaser at or prior to the Closing.
SECTION 6.3 NO PROCEEDINGS. No Proceeding shall be pending or overtly
threatened before any court, arbitrator or Governmental Agency which seeks the
restraint, prohibition or the obtaining of
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damages or other relief in connection with this Agreement or the consummation of
the transactions contemplated hereby.
SECTION 6.4 DELIVERIES AT CLOSING. Purchaser shall have delivered to
Seller at the Closing the Metretek Shares and each of the other certificates,
instruments, documents and agreements required to be delivered to Seller
hereunder.
SECTION 6.5 PURCHASER BOARD APPROVAL. The Board of Directors of Purchaser
shall have approved and authorized this Agreement and the transactions
contemplated hereby, including the issuance of the Metretek Shares to Seller.
SECTION 6.6 PIPE INVESTOR APPROVAL. The PIPE Investors shall have approved
and consented to, or waived their right to approve and consent to, this
Agreement and the transactions contemplated hereby, including the issuance of
the Metretek Shares to Seller, or due to the passage of time their approval and
consent shall no longer be required.
SECTION 7. THE CLOSING
SECTION 7.1 DATE AND PLACE. The consummation of the sale and transfer of
the PowerSecure Shares by Seller to Purchaser in exchange for the sale and
issuance of the Metretek Shares by Purchaser to Seller contemplated hereby (the
"Closing") shall take place at the principal executive offices of Purchaser, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, within five (5)
business days after all conditions have been met, or at such other time, date or
place as the parties shall mutually agree (the actual date of the Closing is
referred to herein as the "Closing Date").
SECTION 7.2 DELIVERIES BY SELLER. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser, in form reasonably acceptable to Purchaser:
(a) The certificate or certificates representing all the
PowerSecure Shares to be purchased by Purchaser hereunder, duly endorsed by
Seller in blank for transfer to Purchaser or accompanied by stock powers duly
endorsed by Seller in blank for transfer to Purchaser; and
(b) All other items documents, instruments and certificates
required to be delivered by Seller pursuant to any provision of this Agreement
or reasonably requested by Purchaser.
SECTION 7.3 DELIVERIES BY PURCHASER. At the Closing, Purchaser shall
deliver or cause to be delivered to Seller, in form reasonably acceptable to
Seller:
(a) One or more certificates representing the Metretek Shares to
be issued to Seller hereunder, duly registered on the stock transfer books of
Purchaser in the name of Seller; and
(b) All other items documents, instruments and certificates
required to be delivered by Purchaser pursuant to any provision of this
Agreement or reasonably requested by Seller.
9
SECTION 7.4 EFFECTIVENESS OF CLOSING. No action to be taken or delivery to
be made at the Closing shall be effective until all of the actions to be taken
and deliveries to be made at the Closing are complete.
SECTION 8. SURVIVAL AND INDEMNIFICATION
SECTION 8.1 SURVIVAL. The representations and warranties set forth in this
Agreement shall survive the Closing and shall continue in full force and effect
thereafter, regardless of any investigation made by any party hereto, for a
period of three (3) years after the Closing Date, except that any Claims (as
defined in Section 8.4) (i) by Purchaser against Seller for breach of a
representation or warranty set forth in Sections 2.6, or claims relating to
fraud, shall expire only upon the expiration of the applicable statute of
limitations; or (ii) that arose prior to the expiration of such survival period
where proper notice thereof is given pursuant to Section 8.4 prior to the
expiration of such survival period shall not expire until fully and finally
resolved. All covenants and agreements set forth in this Agreement shall survive
the Closing.
SECTION 8.2 INDEMNIFICATION BY SELLER. Seller shall indemnify, defend and
hold harmless Purchaser, its affiliates, successors and assigns, and the
officers, directors, shareholders, partners, employees, agents and
representatives of any of them, from and against any and all claims, actions,
suits, proceedings demands, losses (including diminutions in value), expenses,
obligations, taxes, liabilities, damages, recoveries and deficiencies
(including, without limitation, interest, fines, penalties, costs of
investigation, reasonable attorneys', accountants' and other professionals' fees
and expenses and amounts paid in settlement) (collectively, "Damages") arising
out of, based upon or resulting from (a) any breach or violation of, inaccuracy
or misrepresentation in, or failure by Seller to perform, any representations,
warranties, covenants, agreements or other obligations of the Company made in
this Agreement or in any schedule, certificate, exhibit or other document or
instrument furnished or to be furnished by Seller to Purchaser pursuant to this
Agreement; or (b) any claim by any Person to (i) own, or to have the right to
own or acquire, any PowerSecure Shares ever issued to Seller, or (ii) all or any
portion of the Metretek Shares issuable to Seller in consideration for the
PowerSecure Shares owned by Seller.
SECTION 8.3 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify,
defend and hold harmless Seller and his affiliates, successors and assigns, and
the officers, directors, shareholders, partners, employees, agents and
representatives of any of them, from and against any and all Damages arising out
of, based upon or resulting from any breach or violation of, inaccuracy or
misrepresentation in, or failure by Purchaser to perform, any of the
representations, warranties, covenants, agreements or other obligations of the
Purchaser made in this Agreement.
SECTION 8.4 CLAIMS FOR INDEMNIFICATION
(a) Whenever any party hereunder believes it has suffered or
incurred or is likely to suffer or incur any Damages, or any action or
proceeding is commenced or threatened or claim is made that could result in
Damages, which is reasonably likely to give rise to a claim ("Claim") for
indemnification under this Agreement, the party seeking indemnification
("Indemnified Party") shall, upon obtaining knowledge thereof, promptly notify
in writing the party against whom indemnification
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is sought ("Indemnifying Party") of the Claim and, when known, the facts
constituting the basis for such Claim and the amount and nature of the Damages
or an estimate thereof. The Indemnified Party's failure to timely notify
Indemnifying Party of any Claim or potential Claim shall not relieve the
Indemnifying Party of any liability hereunder unless and only to the extent that
such failure causes Indemnifying Party to lose the right to assert any
substantive rights or defenses or to the extent that the Indemnifying Party is
actually prejudiced in its rights or obligations.
(b) The Indemnified Party shall give the Indemnifying Party a
reasonable opportunity to participate in and to assume the defense of any such
Claim at the Indemnifying Party's own expense and with counsel of the
Indemnifying Party's own selection reasonably satisfactory to the Indemnified
Party provided, however, that Indemnified Party shall at all times also have the
right but not the obligation, to fully participate in the defense of the Claim
and to employ its own counsel at its own expense. Notwithstanding the foregoing,
if the Indemnified Party reasonably determines that: (i) legal defenses may be
available to the Indemnified Party that are different from or in addition to
those available to the Indemnifying Party, (ii) a conflict or potential conflict
of interest exists between the Indemnified Party and the Indemnifying Party (in
which case the Indemnifying Party shall not have the right to direct the defense
of such Claim on behalf of the Indemnified Party), or (iii) the Indemnifying
Party has not in fact employed legal counsel to assume the defense of such Claim
within a reasonable time after receiving notice of the Claim, then the
reasonable fees, disbursements and other charges of counsel from one separate
firm selected by the Indemnified Party (and reasonably acceptable to the
Indemnified Party) shall be reimbursed by the Indemnified Party promptly as they
are incurred.
(c) No party hereto shall compromise, settle or consent to the
entry of any judgment with respect to any Claim without the prior written
consent of the other interested party or parties (which consent shall not be
unreasonably withheld or delayed) unless such compromise, settlement or consent
includes an unconditional release of all other interested parties hereto from
any and all liabilities on any Claims that are the subject matter thereof.
(d) Each party hereto shall cooperate in every reasonable way with
the party assuming responsibility for the defense and disposition of any such
Claim, including making available to the defending party all books, records, and
other material reasonably required by the defending party for its use in
defending the Claim.
SECTION 8.5 NON-EXCLUSIVE INDEMNIFICATION. The foregoing indemnification
provisions are in addition to, and not in derogation of, or statutory, equitable
or common law remedies any party hereto may have for any breach of
representation, warranty, covenant or agreement.
SECTION 8.6. EFFECT OF KNOWLEDGE. No disclosure to nor investigation by or
on behalf of any party hereto shall be deemed to affect its reliance on the
representations, warranties, covenants and agreements contained herein or to
waive its rights to indemnification as provided herein for the breach or
violation of or inaccuracy or failure to perform or comply with any
representation, warranty, covenant or agreement of any other party hereto.
SECTION 8.7. CONTRIBUTION. If the indemnification provided for in this
Section 8 is for any reason unavailable or insufficient to indemnify the
Indemnified Party in respect of any Damages,
11
then the Indemnifying Party shall in lieu of indemnifying the Indemnified Party
contribute to the total damages to which the Indemnified Party may be subject in
such proportion that shall be appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, in connection with any actions or omissions which resulted in such Damages
as well as any other relevant equitable considerations.
SECTION 9. TERMINATION AND CONFIDENTIALITY
SECTION 9.1 EVENTS OF TERMINATION. This Agreement may be terminated at any
time prior to the Closing as follows:
(a) By mutual written agreement of Seller and Purchaser;
(b) By either Seller or by Purchaser, by giving written notice of
the other, if there has been a material breach of any representation, warranty,
covenant or agreement on the part of the other party that continues unremedied
for a period of at least fifteen (15) days after such notice;
(c) By either Seller or by Purchaser, by giving written notice to
the other if the Closing Date has not occurred on or before December 31, 2004,
unless such party's intentional failure to fulfill any obligation hereunder has
been the cause of, or has resulted in, the failure of the Closing to occur on or
before such date; or
(d) By either Seller or Purchaser by giving written notice to the
other if any court, arbitrator or Governmental Authority of competent
jurisdiction shall have issued an order, judgment, decree, ruling or taken other
action restraining, enjoining or otherwise prohibiting the transaction
contemplated hereby.
SECTION 9.2 EFFECT OF TERMINATION. If any party terminates this Agreement
in accordance with Section 10.1, then all rights and obligations of the parties
shall cease, except for the obligations set forth in Sections 4.2, 8, 9 and 10
which shall survive such termination; provided, however, that any termination of
this Agreement shall not affect the rights of either Seller or Purchaser against
the other for breach of any representation, warranty, covenant or agreement set
forth in this Agreement.
SECTION 9.3 CONFIDENTIALITY. Notwithstanding the provisions of this
Section 9, if for any reason the transactions contemplated by this Agreement are
not consummated, each of the parties hereto shall keep confidential any
information obtained from any other party (except information publicly available
or in such party's domain prior to the date hereof, and except as required by
court order) and shall promptly return to the other parties all schedules,
documents, instruments, work papers or other written information, without
retaining copies thereof, previously furnished by it as a result of this
Agreement or in connection herewith.
SECTION 10. GENERAL PROVISIONS
SECTION 10.1 GOVERNING LAW. This Agreement shall in all respects be
governed by and construed and enforced in accordance with the internal
substantive laws of the State of Delaware without giving effect to any principle
or rule of conflict or choice of laws. Any action, suit or other
12
proceeding seeking to enforce any right, remedy, obligation, duty, covenant or
provision of, or arising out of, this Agreement shall be brought and entered
against any party hereto exclusively in any court of the State of Colorado or of
the United States located in the State of Colorado. All parties hereto
irrevocably submits to the personal jurisdiction of any such court and
irrevocably waives, to the fullest extent of the law, any objection that it may
now or hereafter have to the laying of venue in any such court and any claim
that such action, suit or proceeding has been brought in an inconvenient forum.
SECTION 10.2 EXPENSES. Each of the parties to this Agreement agrees to pay
its own costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, including the fees and expenses of its
counsel, accountant and other advisers and agents, except as provided in the
following sentence. Seller shall solely be responsible for the fees and expenses
of his own legal counsel, which shall not become an obligation of the Company.
SECTION 10.3 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party hereto without the prior
written consent of all other parties hereto.
SECTION 10.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
SECTION 10.5 AMENDMENTS. This Agreement may not be amended or modified in
any manner in whole or in part except by a writing signed by Purchaser and
Seller that specifically states that it amends this Agreement.
SECTION 10.6 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 to a party (i) when
delivered to such party in person; (ii) upon receipt of confirmation of
transmission when sent by facsimile transmission or electronic mail; (iii) one
business day after deposit during normal business hours with a nationally
recognized overnight courier service, specifying next business day delivery,
with written verification of receipt; or (iv) five business days after being
sent by first class (certified or registered) mail, postage prepaid, return
receipt requested, in each case to such party at the following addresses:
If to Purchaser:
---------------
Metretek Technologies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13
With copies to:
Kegler, Brown, Hill & ▇▇▇▇▇▇ Co., L.P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller:
------------
To Seller at the address specified on the
Signature Page under "Notice Information."
Any party may change its or his designated address by giving written notice
thereof to all other parties hereto in the manner provided in this Section 10.6.
Any party hereto may send any notice, request, demand, or other communication to
the intended recipient at the address above by using any other means, but no
such notice, demand, request or other communication shall be deemed to have been
given until it is actually received by the recipient.
SECTION 10.7 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.
SECTION 10.8 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.
SECTION 10.9 HEADINGS. The headings used in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
SECTION 10.10 NO THIRD PARTY BENEFICIARIES. Except as expressly provided
in this Agreement, this Agreement does not confer or create, is not intended by
the parties hereto to confer or create, and shall not be construed to as
conferring or creating, upon any person or entity other than the parties hereto
and their successors and permitted assigns any rights, remedies or causes of
action under or by reason of this Agreement.
14
SECTION 10.11. CONSTRUCTION. All parties to this Agreement participated in
the negotiation and drafting of this Agreement. 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.
SECTION 10.12 SCHEDULE. The Schedule attached to this Agreement is
incorporated into and made a part of this Agreement as if it were fully set
forth herein.
SECTION 10.13 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.
(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 a Section means such Section of this
Agreement.
(ix) Each reference to a Schedule means such Schedule to this
Agreement.
SECTION 10.14 SPECIFIC PERFORMANCE; CUMULATIVE REMEDIES. The parties
hereto acknowledge and agree that the transactions contemplated by this
Agreement are unique in that remedies at 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
15
threatened breach to any of the terms of this Agreement, the non-breaching party
shall have the right of specific performance and injunctive relief giving effect
to its rights under this Agreement, in addition to any and all other rights and
remedies, at law or in equity, and all such rights and remedies are cumulative.
SECTION 10.15 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 an original, but all of which together
shall constitute one and the same instrument.
SECTION 10.16 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous arrangements,
agreements and understandings, whether oral or written, among the parties hereto
in connection with the subject matter of this Agreement.
(The next page is the Signature Page)
16
SIGNATURE PAGE FOR PURCHASER
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed and
delivered by or on behalf of the parties hereto as of the date first above
written.
PURCHASER:
METRETEK TECHNOLOGIES, INC.
By:
-------------------------------------
Its:
------------------------------------
17
SIGNATURE PAGE FOR SELLER
IN WITNESS WHEREOF, this Stock Purchase Agreement has been executed and
delivered by or on behalf of the parties hereto as of the date first above
written.
SELLER:
----------------------------------------
Signature
----------------------------------------
Print Name
NOTICE INFORMATION FOR SELLER:
----------------------------------------
Address
----------------------------------------
City, State and Zip Code
----------------------------------------
Telephone Number
----------------------------------------
Facsimile Number
18
SCHEDULE I
SELLER, POWERSECURE SHARE HOLDINGS AND METRETEK SHARES TO BE RECEIVED
Name of Seller:
-----------------------------
PowerSecure Shares Held:
--------------------
Metretek Shares to be Received:
-------------
19