EXHIBIT 10.2
METRETEK TECHNOLOGIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
1998 STOCK INCENTIVE PLAN
(DIRECTORS)
This NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is effective
as of the date set forth as the Grant Date in the attached Notice of Stock
Option Grant (the "Grant Date"), by and between Metretek Technologies, Inc., a
Delaware corporation (the "Company"), and the individual named as the Optionee
in the attached Notice of Stock Option Grant (the "Optionee").
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 (the "Board") has authorized a grant to the Optionee of an option to
purchase shares of Common Stock, par value $.01 per share (the "Common Stock"),
of the Company on the terms and subject to the conditions set forth in this
Agreement;
Agreement
NOW, THEREFORE, in consideration of the premises, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Grant of Option. Upon the terms and conditions set forth in the
Plan, this Agreement and the attached Notice of Stock Option Grant, all of which
are incorporated herein by this reference the Company grants to the Optionee the
option (the "Option") to purchase the number of shares of Common Stock set forth
on the attached Notice of Stock Option Grant (the "Option Shares") at the
purchase price set forth on the attached Notice of Stock Option Grant (the
"Exercise Price"), which Exercise Price the Board of Directors has determined to
be equal to or greater than the fair market value of the Common Stock on the
Grant Date. 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 Option is not intended to qualify as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. Vesting of Option. The Option shall vest and become exercisable in
accordance with the vesting schedule set forth in the attached Notice of Stock
Option Grant.
3. Exercise of Option. The Option may be exercised by the Optionee (or
by any other person permitted by Section 8 hereof to exercise the Option) in
accordance with the following provisions:
(a) Method of Exercise. The Option may be exercised, in whole or
in part, by giving written notice of exercise to the Company at its principal
executive offices stating the number of Option Shares to be purchased upon such
exercise, accompanied by payment in full of the Exercise Price for the Option
Shares to be purchased. Payment of the Exercise Price shall be made by any of
the following methods, or a combination thereof, at the election of the
Optionee:
(i) Cash;
(ii) Check, bank draft or money order made payable to the
Company;
(iii) Delivery of shares of Common Stock already owned by the
Optionee, surrendered in proper form for transfer and
valued at their Fair Market Value (as defined in the
Plan) on the date of delivery; or
(iv) By irrevocable direction to a securities broker or
dealer acceptable to the Company to sell the Option
Shares and deliver all or part of the sales proceeds to
the Company.
(b) Delivery of Certificates. After payment in full for the Option
Shares purchased pursuant to the exercise of the Option has been received, the
Company shall deliver to the Optionee properly executed certificates
representing such Option Shares as promptly thereafter as is reasonably
practicable.
(c) Tax Withholding. In the event that the Company determines that
it is required to withhold any tax as a result of the exercise of the Option,
the Optionee, as a condition to the exercise of this option, shall make
arrangements satisfactory to the Company to enable it to satisfy all withholding
requirements. The Optionee shall also make arrangements satisfactory to the
Company to enable it to satisfy any withholding requirements that may arise in
connection with the vesting or disposition of Option Shares purchased by
exercising this option.
4. Expiration of the Option.
(a) Expiration Date. The Option shall expire upon the "Expiration
Date" set forth in the attached Notice of Stock Option Grant (the "Expiration
Date"); provided, however, that if the Optionee ceases to be a member of the
Board prior to the Expiration Date, then the Optionee's right to exercise the
Option, to the extent it is otherwise then exercisable pursuant to Section 2
hereof, shall be limited as provided in this Section 4.
(b) Death. In the event of the death of the Optionee, the Option
may continue to be exercised, to the extent the Option is otherwise exercisable
on the date of the Optionee's death (and without any further vesting), by the
Optionee's estate, personal representative or beneficiary, until the earlier of
the Expiration Date or one year after the date of death, on which date the
Option shall expire.
(c) Termination of Service as a Director.
(i) Termination other than Upon Death or for Cause. In the
event the Optionee ceases to serve as a member of the Board for any reason,
other than dismissal for "cause" or upon death, then the Option may continue to
be exercised, to the extent the Option is otherwise exercisable on the date of
Optionee's termination of service as a member of the Board (and without any
further vesting), until the earlier of the Expiration Date or the date after
termination that is the number of years equal to the number of full or partial
years the Optionee served as a member of the Board, on which date the Option
shall expire.
(ii) Continuing Service. For purposes of this Section 4, if
the Optionee ceases to serve as a member of the Board and, immediately
thereafter, is employed by the Company, or a Subsidiary of the Company, then for
purposes of determining the expiration of the Option pursuant to this Section 4,
the Optionee shall not be deemed to have ceased to serve as a member of the
Board and the Optionee's continued employment by the Company, or a Subsidiary of
the Company, shall be deemed to be continued service as a member of the Board.
(iii) Termination for "Cause". The Options shall immediately
expire on the date the Optionee's services as a member of the Board terminate,
if the Optionee is dismissed from the Board for "cause". For purpose of this
Section 4, "cause" shall mean conduct involving one or more of the following:
(A) the substantial and continuing failure of the Optionee, after notice
thereof, to render services to the Company in accordance with the terms or
requirements of his duties; (B) disloyalty, gross negligence, willful
misconduct, dishonesty or breach of fiduciary duty to the Company; (C) the
commission of an act of embezzlement or fraud; (D) deliberate disregard of the
rules or policies of the Company which results in direct or indirect loss,
damage or injury to the Company; (E) the unauthorized disclosure of any trade
secret or confidential information of the Company; or (F) the commission of an
act which constitutes unfair competition with the Company or which induces any
customer or supplier to breach a contract with the Company.
5. 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, for
a period of 60 days following a Change in Control, the Optionee may elect to
surrender any outstanding portion of the Option and to receive, in full
satisfaction therefor, a cash payment equal to the value of the Option
calculated on the basis of the Change in Control Price (as defined in the Plan)
of any Option Shares or the Fair Market Value of any property other than Option
Shares relating to such Option; provided, however, that in the case of a Change
in Control described in Section 9(b)(i)(C) or (D) of the Plan, the payment
described in this sentence shall not necessarily be made in cash but instead may
be made in the same form (i.e., cash, shares of Common Stock, other securities
or a combination thereof) as holders of shares of Common Stock receive in
exchange for their shares of Common Stock in the
transaction that results in the Change in Control. The rights of the Optionee in
the event of a Change in Control shall be governed by the Plan.
6. Adjustments in the Common Stock.
(a) In the event that any dividend or other distribution (whether
in the form of cash, Shares, 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
Optionee's rights under this Agreement, then the Board shall proportionately
adjust any or all of (i) the number and kind of Option Shares which may
thereafter be issued in connection with the Option; (ii) the number and kind of
Option Shares issued or issuable with respect to outstanding Options; and (iii)
the Purchase Price.
(b) The grant of this Option shall not affect in any way the right
of the Company to adjust, reclassify, reorganize, or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
7. Legality of Initial Issuance.
No Option Shares shall be issued upon the exercise of this Option
unless and until the Company has determined that:
(a) the Company has taken all actions required to register the
Option Shares under the Securities Act or to perfect an exemption from the
registration requirements thereof;
(b) any applicable listing requirement of any stock exchange or
other securities market on which the Common Stock is listed or traded has been
satisfied; and
(c) any other applicable provision of state or federal law has
been satisfied.
8. Transferability of the Option. The Option shall be transferable by
the Optionee only as follows:
(a) By will or the laws of descent and distribution;
(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; or
(c) Without consideration (other than in exchange for an interest
in one of the following partnerships, limited liability companies or other
entities), to (i) the Optionee's spouse, children or grandchildren (whether by
blood, adoption or step) ("Family Members"), (ii) any trust in which Optionee
and such Optionee's Family Members have more than 50% of the beneficial
interests, or (iii) any partnership, limited liability company or other entity
in which the Optionee and such Optionee's Family Members own more than 50% of
the voting interests, provided that (x) following any transfer of the Option
pursuant to this Section 8(c), the Option shall continue to be subject to the
same terms and conditions as were applicable immediately prior to transfer,
provided that for purposes of this Agreement, any reference to the Optionee
shall be deemed to refer to the transferee, (y) in the event of a transferee's
death, the Option may be exercised by the personal representative of the
transferee's estate or, if no personal representative has been appointed, by the
successor or successors in interest determined under the transferee's will or
under applicable laws of descent and distribution, and (z) the events of
expiration of the Option set forth in Section 4 hereof shall continue to be
applied with respect to the original Optionee, following which the Option shall
be exercisable by the transferee only to the extent and for the period specified
in Section 4 hereof.
9. Plan Controls. This Option is granted pursuant to, and shall be
interpreted in a manner consistent with, the Plan. Any provision of this Option
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 Option which are not set forth in this
Agreement shall be deemed to be incorporated herein by this reference. Optionee
acknowledges he has received a copy of the Plan prior to executing this
Agreement.
10. No Rights As Stockholder Until Exercise. The Optionee shall have no
rights as a stockholder with respect to the Option Shares unless and until such
time as the Optionee has exercised the Option by delivering a properly completed
and executed notice of exercise and has paid in full the Purchase Price for the
number of Option Shares for which the Option is to be so exercised in accordance
with Section 2 hereof and certificates representing the Option Shares have been
issued to the Optionee with respect thereto. Except as expressly provided in the
Plan and Section 6 hereof with respect to certain changes in the capitalization
of the Company, no adjustment in the number of Options or the Purchase Price
shall be made for dividends or similar rights for which the record date is prior
to such date of exercise.
11. No Right to Employment. Nothing contained in the Plan or this
Agreement shall confer, and the grant of the Option shall not be construed as
conferring, upon the Optionee, any right to continue in the employ or service of
the Company or any Subsidiary of the Company or interfering in any way with the
right of the Company or any Subsidiary of the Company to (a) terminate the
Optionee's employment or service at any time, or (b) increase or decrease the
compensation of the Optionee from the rate in existence at the time of granting
the Option.
12. Compliance with Rule 16b-3. If Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended, or any successor provision applies
to the Optionee or to the grant of the Option pursuant to the Plan to the
Optionee, then the grant of the Option hereunder is intended to be in compliance
with one or more of the exemptions provided in Rule 16b-3.
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 Optionee, at the address set forth below his
signature on the attached Notice of Stock Option Grant.
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 Option is or becomes or is deemed to be invalid, illegal or unenforceable in
any jurisdiction, or would disqualify the Plan, this Agreement or the Option
under any law, this Agreement and the Option 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 Option, 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 Option 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) Successor and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(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 Optionee 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.
(End of Non-Qualified Stock Option Agreement)