EXHIBIT 10.3
METRETEK TECHNOLOGIES, INC.
RESTRICTED STOCK AGREEMENT
1998 STOCK INCENTIVE PLAN
This RESTRICTED STOCK AGREEMENT (the "Agreement") is made to be effective
as of the "Grant Date" set forth on the Signature Page (the "Grant Date") by and
between Metretek Technologies, Inc., a Delaware corporation (the "Company"), and
the individual named as the "Grantee" on the Signature Page (the "Grantee").
Recitals
WHEREAS, the Company has adopted the Metretek Technologies, Inc. 1998
Stock Incentive Plan (as amended and/or restated from time to time, the "Plan");
and
WHEREAS, pursuant to the provisions of the Plan, the Board of Directors of
the Company, acting directly or through its Compensation Committee (the
"Board"), has authorized a grant to the Grantee of shares of common stock, par
value $.01 per share (the "Common Stock"), of the Company, subject to the
restrictions and upon the terms and conditions set forth in this Agreement;
Agreement
NOW, THEREFORE, in consideration of the premises and for 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:
1. Grant of Restricted Stock.The Company hereby grants to the Grantee
the number of shares of Common Stock (the "Restricted Stock" or the "Restricted
Shares") set forth on the Signature Page. The Restricted Shares are subject to
the terms and conditions set forth in this Agreement and in the Plan, which is
incorporated herein by this reference. Unless otherwise defined herein, all
terms defined in the Plan and used in this Agreement shall have the same
respective meanings in this Agreement. The Grantee hereby agrees that all
Restricted Shares are subject to, and the Grantee hereby agrees to abide by, all
terms and conditions set forth in the Plan and this Agreement, including but not
limited to the restrictions on transfer set forth in Section 3 and the
forfeiture conditions set forth in Section 6.
2. Vesting of Restricted Shares.
(a) Except as otherwise provided in this Agreement, the Restricted
Shares shall vest, and the restrictions applicable thereto shall lapse, in
accordance with the vesting schedule set forth on the Signature Page (the
"Vesting Schedule"), provided the Grantee has been employed continuously by the
Company from the Grant Date through the "Vesting Date" specified in the
Vesting Schedule. The number of Restricted Shares that shall vest on each
Vesting Date shall be equal to the number of total Restricted Shares granted
hereunder multiplied by the applicable "Vesting Percentage" set forth in the
Vesting Schedule. The Restricted Shares shall be fully vested, and this
Agreement and the restrictions hereunder applicable to the Restricted Shares
shall terminate, on the last Vesting Date set forth in the Vesting Schedule (the
"Expiration Date").
(b) Restricted Shares that have become vested in accordance with
the Vesting Schedule are referred to herein as "Vested Shares". Restricted
Shares that have not become vested in accordance with the Vesting Schedule are
referred to herein as "Unvested Shares".
(c) Notwithstanding the Vesting Schedule, any and all Unvested
Shares shall become Vested Shares in the event of the Grantee's death or
Disability (as defined below).
(d) After any Restricted Shares become Vested Shares, the
restrictions thereon as set forth in Section 3, shall lapse, and the Grantee may
Transfer (as defined below) any of the Vested Shares in his discretion.
3. Restrictions on Restricted Shares. The Grantee shall be treated as
the beneficial owner of all of the Restricted Shares and shall have all the
rights and privileges of a stockholder as to the Restricted Shares, including
the right to vote and to receive any dividends and other distributions with
respect to the Restricted Shares, except that the following restrictions shall
apply to any Restricted Shares that are Unvested Shares:
(a) The Grantee shall not be entitled to delivery of any
certificates for Restricted Shares until the restrictions thereon have lapsed
and such Restricted Shares have become Vested Shares in accordance with the
Vesting Schedule without a forfeiture, and upon the satisfaction of all other
applicable conditions.
(b) The Grantee shall not sell, assign, transfer (by gift or
otherwise), pledge, hypothecate or otherwise dispose of by operation of law or
otherwise ("Transfer"), any Restricted Shares that are Unvested Shares, except
as otherwise provided by this Agreement or the terms of the Plan. If any
Transfer of Restricted Shares is made or attempted to be made contrary to the
terms of this Agreement, such Transfer or attempted Transfer shall be null and
void and ineffectual and shall cause such Restricted Shares to be forfeited, and
the Company shall have the right to acquire for its own account, without the
payment of any consideration therefor, such Restricted Shares from the owner
thereof or his transferee, at any time before or after such prohibited Transfer.
In addition to any other legal or equitable remedies it may have, the Company
may enforce its rights to specific performance to the extent permitted by law
and may exercise such other equitable remedies then available to it. The Company
may refuse for any purpose to recognize any transferee who receives Restricted
Shares contrary to the provisions of this Agreement as a stockholder of the
Company and may retain and/or recover any and all dividends or other
distributions on such Restricted Shares that were paid or payable subsequent to
the date on which the prohibited Transfer was made or attempted.
(c) The Grantee shall deliver to the Company any and all shares of
Common Stock or other securities distributed as a dividend or distribution with
respect to any Restricted Shares that do not become Vested Shares, upon a
forfeiture of such Restricted Shares.
4. Change In Control. In the event of a "Change in Control" (as defined
in the Plan), subject to the applicable restrictions set forth in the Plan, all
Unvested Shares (not otherwise forfeited prior to the Change in Control) shall
vest in full and become Vested Shares upon the date of such Change in Control.
The rights of the Grantee in the event of a Change in Control shall be governed
by the provisions of Sections 9 and 11(a) of the Plan.
5. Adjustments in Common Stock.
(a) In the event that any dividend or other distribution (whether
in the form of cash, Common Stock, other securities or other property),
recapitalization, forward or reverse stock split, reorganization, merger,
consolidation, split-up, combination, spin-off, combination, repurchase,
liquidation, dissolution, exchange of shares of Common Stock or other securities
of the Company, or other similar corporate transaction or event affects the
shares of Common Stock such that an adjustment is necessary or determined by the
Board to be appropriate in order to prevent dilution or enlargement of the
Grantee's rights under this Agreement, then the Board shall proportionately
adjust the number and kind of Restricted Shares. Any new, additional or
different securities to which the Grantee shall be entitled in respect of
Restricted Shares by reason of such adjustment shall be deemed to be Restricted
Shares and shall be subject to the same terms, conditions and restrictions as
the Restricted Shares so adjusted.
(b) The grant of Restricted Shares shall not affect in any way the
right of the Company to adjust, reclassify, reorganize, or otherwise change its
capital stock or business structure or to merge, consolidate, dissolve,
liquidate or sell or transfer all or any part of its business or assets.
6. Termination of Employment; Forfeiture of Unvested Shares.
(a) In the event the Grantee's employment with the Company is
terminated for any reason, other than due to his death or Disability, all rights
of the Grantee with respect to Restricted Shares that are Unvested Shares shall
terminate and be forfeited in their entirety as of the date of such termination
of employment, and the Grantee shall immediately transfer and assign to the
Company, without the requirement of consideration, all such Restricted Shares
that are Unvested Shares, which shall be promptly tendered to the Company by the
delivery of the certificates, if any, for such Unvested Shares, endorsed in
blank by the Grantee or the Grantee's representative or with stock powers
attached thereto duly endorsed, at the Company's principal executive offices,
all in form suitable for the transfer of such Unvested Shares to the Company
without the payment of any consideration therefor by the Company. After the time
at which any such Unvested Shares are required to be delivered to the Company
for transfer to the Company, the Company shall not pay any dividends to the
Grantee on account of such Unvested Shares or permit the Grantee to exercise any
of the privileges or rights of a stockholder with respect to such Unvested
Shares, but shall, insofar as permitted by law, treat the Company as the owner
of such Unvested Shares. However, the forfeiture of any Restricted Shares shall
not create any obligation to repay dividends received as to
such Restricted Shares, nor shall such forfeiture invalidate any votes
previously given by Grantee with respect to such Restricted Shares.
(b) For purposes of this Agreement, the Grantee shall be deemed to
be employed by the Company so long as the Grantee is an employee, director,
officer, consultant or advisor of the Company or any Subsidiary (as defined in
the Plan) of the Company. In the event the Grantee ceases to be an employee of
the Company in order to become an employee of any subsidiary of the Company, or
the Grantee ceases to be an employee of any such subsidiary in order to become
an employee of the Company or of another subsidiary of the Company, then the
Grantee shall be deemed to continue as an employee of the Company for all
purposes of this Agreement.
(c) For purposes hereof, "Disability" shall be deemed to be the
physical or mental inability of the Grantee to perform the Grantee's duties to
the Company because of a physical or mental disability expected to last for a
continuous period of at least one year.
(d) The Board, in its discretion, may determine whether any leave
of absence constitutes a termination of employment for purposes of this
Agreement.
7. Certificates for Restricted Shares.
(a) Reasonably promptly after the Grant Date, the Company shall
cause one or more certificates representing the Restricted Shares to be
registered in the name of, and issued to, the Grantee.
(b) Each certificate for Restricted Shares shall bear a legend to
substantially the following effect:
"THE OWNERSHIP AND TRANSFERABILITY OF THIS CERTIFICATE AND THE
SHARES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS
(INCLUDING FORFEITURE) OF A RESTRICTED STOCK AGREEMENT BETWEEN METRETEK
TECHNOLOGIES, INC. AND THE REGISTERED OWNER OF THIS CERTIFICATE AND TO THE
TERMS AND CONDITIONS OF THE METRETEK TECHNOLOGIES, INC. 1998 STOCK
INCENTIVE PLAN, AS AMENDED. COPIES OF THE RESTRICTED STOCK AGREEMENT AND
THE PLAN ARE ON FILE AT THE PRINCIPLE EXECUTIVE OFFICES OF THE COMPANY AND
MAY BE OBTAINED UPON WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF METRETEK TECHNOLOGIES, INC. AT ITS
PRINCIPLE EXECUTIVE OFFICES. ANY TRANSFER OF THIS CERTIFICATE OR THE
SHARES REPRESENTED HEREBY IN CONTRAVENTION OF SUCH PLAN OR THE RESTRICTED
STOCK AGREEMENT SHALL BE INVALID AND INEFFECTIVE".
In addition, the certificate or certificates for the Restricted Shares shall be
subject to such stop transfer orders and other restrictions as the Company may
deem advisable under the rules,
regulations and other requirements of the Securities and Exchange Commission,
any stock exchange or stock market upon which the Common Stock is from time to
time listed or traded, and any applicable federal or states securities laws, and
the Company may cause a legend or legends to be placed on such certificates or
certificates to make appropriate references to such restrictions.
(c) The Company may, in its sole discretion, require the Grantee
to keep any certificates representing Restricted Shares in the custody of the
Company, so long as such Restricted Shares are subject to the restrictions set
forth in Section 3 and are Unvested Shares. In such event, the Grantee agrees to
deliver to the Company one or more stock powers duly endorsed in blank relating
to the Restricted Shares.
(d) After any Restricted Shares become Vested Shares in accordance
with the Vesting Schedule, and upon the satisfaction of all other applicable
conditions to the Restricted Shares, including, but not limited to, the payment
by the Grantee of all applicable withholding taxes, the Company shall deliver or
cause to be delivered to the Grantee (or his successor) one or more certificates
representing such Restricted Shares without the legend referenced in Section
6(b) hereof, reasonably promptly after receiving a request by the Grantee (or
his successor).
8. Tax Withholding. Upon the vesting of any portion of the Restricted
Shares, or earlier if applicable due to tax elections by the Grantee, the
Grantee shall make arrangements satisfactory to the Company to make payment of
all applicable federal, state and local income and other tax laws (collectively,
"Withholding Taxes"). If the Grantee has not made arrangements satisfactory to
the Company to pay the Withholding Taxes, the Company shall withhold from the
Vested Shares a number of Restricted Shares having a fair market value equal to
the amount required to pay the minimum required Withholding Taxes. The fair
market value of any Restricted Shares to be withheld shall be calculated in
accordance with the Plan.
9. Transferability of Unvested Shares.Notwithstanding the restrictions
on Transfer set forth in Section 3, the Grantee may Transfer any Unvested Shares
in whole or in part as follows:
(a) By will or the laws of descent and distribution; or
(b) Pursuant to a Qualified Domestic Relations Order as defined
under the Code or Title I of the Employee Retirement Income Security Act of
1974.
10. Plan As Controlling. The Restricted Shares are granted pursuant to,
and this Agreement shall be interpreted in a manner consistent with, the Plan.
Any provision of this Agreement that is inconsistent or in conflict with any
provision of the Plan shall be deemed to be superseded and governed by the
provision of the Plan. All terms and conditions of the Plan applicable to the
Restricted Shares which are not set forth in this Agreement shall be deemed to
be incorporated herein by this reference. Grantee acknowledges that he has
received a copy of the Plan prior to executing this Agreement.
11. No Right to Continued Employment. Nothing contained in the Plan or
this Agreement shall confer, and the grant of the Restricted Shares shall not be
construed as conferring,
upon the Grantee, any right to continue in the employ or service of the Company
or any Subsidiary, or as interfering in any way with the right of the Company or
any Subsidiary of the Company to (a) terminate the Grantee's employment or
service at any time, or (b) increase or decrease the compensation of the Grantee
from the rate in existence on the Grant Date.
12. Compliance with Legal and Other Requirements. The Company may, to
the extent deemed necessary or advisable by the Board, postpone the issuance or
delivery of Restricted Shares or other payment of other benefits under the
Restricted Shares until completion of the registration or qualification of such
Restricted Shares or other required action under any federal or state law, rule
or regulation, listing or other required action with respect to any national
securities exchange, automated quotation system or any other stock exchange or
stock market upon which the Common Stock or other securities of the Company are
listed or quoted, or compliance with any other obligation of the Company, as the
Board may consider appropriate, and may require the Grantee to make such
representations, furnish such information and comply with or be subject to such
other conditions as it may consider appropriate in connection with the issuance
or delivery of the Restricted Shares or payment of other benefits in compliance
with applicable laws, rules, regulations, listing requirements, or other
applicable obligations.
13. Miscellaneous.
(a) Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and shall be deemed given when sent by first
class certified or registered mail, postage prepaid, return receipt requested,
or by personal delivery, addressed as follows:
(i) If to the Company, at its principal executive offices;
or
(ii) If to the Grantee, at the address set forth on the
Signature Page.
The addresses for such notices may be changed from time to time by written
notice given in the manner provided for herein.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to provisions governing conflicts of laws.
(c) Entire Agreement.This Agreement (along with the Plan)
constitutes the entire agreement and understanding between the parties hereto
regarding the subject matter hereof, and supersedes all prior written or oral
agreements, understandings and communications between the parties related to the
subject matter of this Agreement.
(d) Amendment. This Agreement may be modified, amended or
rescinded only by a written Agreement executed by all parties hereto.
(e) Severability. If any provision of the Plan, this Agreement or
the Restricted Shares is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction, or would disqualify the Plan, this Agreement
or the Restricted Shares under any law, this Agreement and the Restricted Shares
shall be deemed amended to conform to applicable laws or, if it cannot be
construed or deemed without, in the determination of the Board, materially
altering the intent of the Agreement and the Restricted Shares, it shall be
deleted and the remainder of the Agreement shall remain in full force and
effect. If any of the terms or provisions of this Agreement or the Restricted
Shares conflict with the requirements of applicable law or applicable rules and
regulations thereunder, including the requirements of Rule 16b-3, then such
terms or provisions shall be deemed inoperative to the extent necessary to avoid
the conflict with applicable law, or applicable rules and regulations, without
invalidating new remaining provisions hereof.
(f) Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the limitations set forth in Sections 3 and 9 hereof.
(g) Specific Performance and Remedies. The rights of the parties
under this Agreement are unique and, accordingly, the parties shall have the
right to, in addition to any other remedies as may be available to any of them
at law or in equity, to enforce their rights hereunder by actions for specific
performance in addition to any other legal or equitable remedies that they might
have to the extent permitted by law. All rights and remedies of the Company and
of the Grantee enumerated in this Agreement shall be accumulative, and, except
as expressly provided otherwise in this Agreement, none shall exclude any other
rights or remedies allowed by law or in equity, and each of said rights or
remedies may be exercised and enforced concurrently.
(h) Waivers. Any of the provisions of this Agreement may be waived
by an instrument in writing with the consent of the party or parties whose
rights are being waived. Any waiver of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
of that provision or of any other provision hereof.
(i) Captions. The captions contained in this Agreement are
included for convenience of reference only and do not define, limit, explain or
modify this Agreement or its interpretation, construction or meaning and are in
no way to be construed as a part of this Agreement.
(j) Construction. For purposes of this Agreement, the following
rules of construction shall apply: (i) the word "or" is disjunctive but not
necessarily exclusive; and (ii) the number and gender of each pronoun shall be
construed to be such number and gender as the context, circumstances or its
antecedent may require.
* * * * * * * * *
SIGNATURE PAGE
IN WITNESS WHEREOF, the undersigned have caused this Restricted Stock
Agreement to be executed as of the date first above written.
Grant Date: ___________, 200__
Restricted Shares:____________________
METRETEK TECHNOLOGIES, INC.
By: _________________________________
Its: ________________________________
GRANTEE:
_____________________________________
Signature
_____________________________________
Print Name
_____________________________________
Street Address
_____________________________________
City State Zip Code
VESTING SCHEDULE
Vesting Date Vesting Percentage
___________ __________________
___________ __________________
___________ __________________