Exhibit 10.1
METRETEK TECHNOLOGIES, INC.
2005 EXECUTIVE INCENTIVE COMPENSATION PLAN
ADOPTED AS OF MARCH 24, 2005
SECTION 1. PURPOSE. The purpose of the Metretek Technologies, Inc. 2005
Executive Incentive Compensation Plan are to provide annual incentives and
rewards to executive officers of Metretek Technologies, Inc. and its
subsidiaries (collectively, the "Company") for contributing to the growth,
profitability, cash flow and financial success of the Company based on the level
of achievement of financial and other performance criteria, and to enhance the
ability of the Company to attract, retain and motivate these high-quality
executives.
SECTION 2. DEFINITIONS. The following terms as used in the Plan shall have
the meanings set forth below:
(a) "Award" means a cash payment made under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time
to time, together with the rules, regulations and interpretations promulgated
thereunder, and any successor provisions, rules, regulations and
interpretations.
(d) "Committee" means the Compensation Committee of the Board, or any
successor committee appointed by the Board to administer the Plan.
(e) "Company" means Metretek Technologies, Inc., a Delaware corporation,
together with any successor thereto, and its Subsidiaries.
(f) "Effective Date" of the Plan means March 24, 2005.
(g) "Executive" means an officer or other key employee of the Company or
any Subsidiary.
(h) "Fiscal Year" means the fiscal year of the Company, which is the
period commencing on January 1 and ending on December 31 of each calendar year.
(i) "Participant" means, as to any Performance Period, any Executive who
has been selected by the Committee to participate in the Plan for such
Performance Period.
(j) "Performance Criteria" means the standards of measurement of Company
performance and individual performance for each Performance Period as
established by the Committee pursuant to Section 5 below.
(k) "Person" means any individual, corporation, partnership, limited
liability company, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
(l) "Plan" means the Metretek Technologies, Inc. 2005 Executive
Incentive Compensation Plan, as amended from time to time in accordance with the
provisions hereof.
(m) "Performance Period" means a period of time selected by the
Committee to which an Award relates.
(n) "Subsidiary" means any corporation, partnership, limited liability
company, trust or other entity (whether now or hereafter existing) which, on the
date of determination, qualifies as a subsidiary corporation of the Company
under Section 425(f) of the Code, and any successor thereto.
SECTION 3. ADMINISTRATION.
(a) Authority of the Committee. The Plan shall be administered by
the Committee. Subject to the terms of the Plan and applicable law and subject
to such resolutions, not inconsistent with the Plan, as may be adopted by the
Board, and in addition to other express powers and authorizations conferred on
the Committee by the Plan, the
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Committee shall have full power and authority to: (i) designate the
Participants; (ii) grant Awards under the Plan to Participants; (iii) determine
the type or types of Performance Criteria and the Performance Period with
respect to each Award; (iv) determine the size of Awards and establish any other
terms and conditions of any Award; (v) construe, interpret and administer the
Plan and any instrument or agreement relating to, or Award made under, the Plan;
(vi) adopt, amend, suspend, waive or rescind such rules and regulations and
appoint such agents as it shall deem necessary or desirable for the
administration of the Plan; (vii) correct any defect or supply any omission or
reconcile any inconsistency, and to construe and interpret the Plan, the rules
and regulations, any Award Agreement or other instrument entered into or Award
made under the Plan; and (viii) make any other determinations and decisions and
take any other action that the Board deems necessary or desirable for the
administration of the Plan.
(b) Exercise of Authority. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations and other decisions
under or with respect to the Plan or any Award shall be within the sole
discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all Persons, including the Company, its
Subsidiaries, Executives, Participants and their legal representatives and
beneficiaries and stockholders. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed
as limiting any power or authority of the Committee. The Committee may delegate
to officers or managers of the Company or any Subsidiary, or committees thereof,
the authority, subject to such terms as the Committee shall determine, to
perform such functions, including administrative functions, as the Committee may
determine, to the extent that such delegation will not cause Awards intended to
qualify as "performance-based compensation" under Section 162(m) of the Code of
the Code to fail to so qualify. The Committee may appoint agents to assist it in
administering the Plan.
(c) Committee Proceedings. The Committee shall hold its meetings
at such times and places as it shall deem advisable. A majority of the members
of the Committee shall constitute a quorum and all determinations shall be made
by a majority of such quorum. Any determination reduced to writing and signed by
all of the members of the Committee shall be fully as effective as if it had
been made by a majority vote at a meeting of the Committee duly called and held.
(d) Limitation of Liability. The Committee and each member thereof
shall be entitled to, in good faith, rely or act upon any report or other
information furnished to him or her by any executive officer, other officer or
employee of the Company or a Subsidiary, the Company's independent auditors,
legal counsel, other consultants or any other agents assisting in the
administration of the Plan. Members of the Committee, and any officer or
employee of the Company or a Subsidiary acting at the direction or on behalf of
the Committee, shall not be personally liable for any action or determination
taken or made in good faith with respect to the Plan, and shall, to the extent
permitted by law, be fully indemnified and protected by the Company with respect
to any such action or determination.
SECTION 4. ELIGIBILITY. Executives shall be eligible to be selected by the
Committee to be Participants in the Plan and to be granted Awards under the
Plan.
SECTION 5. AWARDS.
(a) General. Subject to the provisions of the Plan, Awards may be
granted as set forth in this Section 5. In addition, the Committee may impose on
any Award or the exercise thereof, at the date of grant or thereafter (subject
to the terms of Section 7 hereof), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee shall determine,
including terms requiring forfeiture of Awards in the event of termination of
employment by the Participant and terms permitting a Participant to make
elections pertaining to his Award. Subject to the provisions of the Plan, the
Committee shall have the right, in its sole and absolute discretion, to
accelerate the vesting or exercising of any Award granted under the Plan. Except
as required by applicable law, Awards shall be granted for no consideration
other than prior and future services.
(b) Establishment of Performance Criteria. At the commencement of
each Performance Period, the Committee shall establish for each Participant one
or more Performance Criteria for such Performance Period, and the relative
weight to be given to each Performance Criteria. The Performance Criteria and
the weighting thereof may vary by Participant and may be different for different
Performance Periods. The Performance Criteria utilized by the Committee for each
Participant may be based on individual performance, corporate financial measures
(including but not limited to revenues, operating income, pre-tax income, net
income, gross profit, costs, cash flow, EBITDA, any of the preceding measures as
a percent of sales, earnings per share, return on equity, return on investment,
total stockholder return and change in Company stock price), other Company and
business unit financial objectives, operational efficiency measures, and other
measurable objectives tied to the Company's success or such other criteria as
the Committee shall determine in its discretion.
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(c) Determination and Payment of Awards. As soon as practicable
after the end of a Performance Period, the Committee will determine the amount,
if any, of the Award earned by each Participant under the applicable Performance
Criteria, based on information certified to it by management, that the
Performance Criteria applicable thereto have been achieved, provided that if the
Performance Period is or ends at the end of the Company's fiscal year, Awards
will be payable only after the Company's annual financial statements have been
audited and filed with the Securities and Exchange Commission. Awards will be
payable promptly after the determination of the Awards by the Committee. Awards
under the Plan will be paid to the Participants in cash, provided that the
Committee may, in its discretion, permit Participants to defer the payment of
all or a portion of their Awards in accordance with Section 409A of the Code, or
if the Company has adopted a deferred compensation plan and the Participant is
also eligible to participate therein, to defer the payment of all or a portion
of their Awards in accordance with the terms of such Plan
(d) Deferral of Awards. A Participant may elect to defer payment
of all or a portion of an Award under the Plan if such deferral is permitted by
such Participant pursuant to the terms of a deferred compensation plan of the
Company existing at the time the election to defer is permitted to be made, and
the Participant complies with the terms of such plan.
(e) Maximum Amount of Awards. The maximum dollar amount that may
be awarded under the Plan during any fiscal year of the Company to any
Participant may not exceed 200% of that Participant's annual base salary for
such year.
(f) Negative Discretion. Notwithstanding the attainment by the
Company or any Participant of one or more specified Performance Criteria, the
Committee has the discretion to pay less than the maximum incentive award that
relates to that level of performance.
SECTION 6. TERMINATION OF EMPLOYMENT.
(a) General Termination of Rights Hereunder. Except as may be
otherwise provided in a binding employment agreement between the Company and a
Participant, in the event a Participant's employment with the Company terminates
for any reason, voluntarily or involuntarily, before the last date of a
Performance Period, then that Participant shall have no further rights under the
Plan and shall not be entitled to payment of any Award under the Plan, except as
provided in this Section 6.
(b) Termination by the Company for Cause. If a Participant's
employment is terminated by the Company for "cause", as defined and determined
by the Committee in its sole discretion (provided that if the Participant has an
employment agreement with the Company and the term "cause" or a like term is
defined therein, the definition in such employment agreement shall be used),
then that Participant shall have no further rights under the Plan and shall not
be entitled to payment of any Award under the Plan with respect to any prior or
current Performance Period.
(c) Termination by the Company without Cause or due to a Change in
Control. If a Participant's employment is terminated by the Company without
"cause" (as defined in Section 6((b)) or upon or following a change in control
of the Company (as defined by the Committee), as defined and determined by the
Committee in its sole discretion, then that Participant shall be entitled to
payment of any Award under the Plan to which such Participant would have been
entitled if such Participant had remained employed with the Company throughout
the Performance Period in effect on the date of termination (the "Pro Forma
Award").
(d) Termination Due to Participant's Death or Disability. In the
event the Participant's termination of employment occurs due to the
Participant's death or disability, then the Participant (or his estate or
beneficiaries) shall be entitled to receive a pro rata portion of the Award to
which such Participant would have been entitled if such Participant had remained
employed with the Company throughout the Performance Period in effect on the
date of termination, based on (i) a fraction, (A) the numerator of which is
equal to the number of months (including the month of termination) the
Participant was employed during such Performance Period, (B) and the divisor of
which is equal to the number of months in the Performance Period, multiplied by
(ii) the amount of the Award divided by (divided by twelve (12), (ii) multiplied
by the Pro Forma Award.
(e) Termination Due to Voluntary Termination by the Participant.
In the event the Participant's employment is voluntarily terminated by the
Participant, then the Committee may, in its sole and complete discretion, value
and direct that some portion of the Aware be deemed earned and payable, taking
into account the duration of employment during the Performance Period, the
Participant's performance, and such other matters as the Committee shall deem
appropriate.
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SECTION 7. AMENDMENTS TO AND TERMINATION OF THE PLAN AND AWARDS. The Board
may, in its sole discretion, from time to time amend, alter, suspend,
discontinue or terminate the Plan or the Committee's authority to grant Awards
under the Plan without the consent of stockholders or Participants; provided,
however, that, without the consent of the Participant, no amendment, alteration,
suspension, discontinuation or termination of the Plan may materially and
adversely affect the rights of such Participant under any Award theretofor
granted to him. The Committee may waive any conditions or rights under, amend
any terms of, or amend, alter, suspend, discontinue or terminate, any Award
theretofore granted, prospectively or retrospectively; provided, however, that,
without the consent of the Participant, no amendment, alteration, suspension,
discontinuation or termination of any Award may materially and adversely affect
the rights of such Participant under any Award theretofore granted to him.
SECTION 8. GENERAL PROVISIONS.
(a) 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 any benefits under any Award until completion of any required
action under any applicable federal, state or local law, rule, regulation,
order, decree or other requirement, or compliance with any other obligation of
the Company, as the Board may consider appropriate, and may require any
Participant 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 payment of any Award in compliance with applicable laws,
rules, and regulations, listing requirements, or other obligations.
(b) No Transferability. No Award granted under the Plan, nor any
other rights acquired by a Participant under the Plan, shall be assignable or
transferable by a Participant, other than by a will or the laws of descent and
distribution, or pursuant to a qualified domestic relations order as defined
under the Code or Title I of the Board of Retirement Income Security Act of
1974, and no Award under this Plan shall be subject in any manner to
anticipation, pledge, encumbrance, charge, garnishment, execution or levy or
lien of any kind, whether voluntary or involuntary, and any attempt contrary
thereto shall be void.. Following any permitted transfer, any transferee shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer.
(c) Designation of Beneficiary. Subject to applicable law, each
Participant shall have the right to file with the Company a written designation
of one or more persons as beneficiaries who shall be entitled to receive the
amount, if any, payable under the Plan pursuant to an award upon the
Participant's death. A Participant may from time to time revoke or change the
beneficiary by filing a new designation with the Company. The last such
designation received by the Company shall be controlling,; provided, however,
that no designation, change or evocation thereof shall be effective until
received by the Company prior the to the Participant's death, and in no event
shall it be effective as of a date prior to receipt. If no such beneficiary
designation is in effect at the time of a Participant's death, or if no
designated beneficiary survives the Participant, or if such designation
conflicts with law, the payment of the amount, if any, payable pursuant to an
Award under the Plan upon the Participant's death shall be made to the
Participant's estate by the Committee. if the Committee is in doubt as to the
right of any person to receive any amount, then the Committee may retain such
amount, without liability for any interest thereon, until the rights thereto are
determined, or the Committee may pay such amount into any court of appropriate
jurisdiction or to the estate of the Participant, in which event the Company and
the Committee shall have no further liability to any Person with respect to such
a amount.
(d) No Rights to Awards. Nothing in the Plan shall be construed as
giving any Participant, Executive or other Person any right to claim to be
granted any Award under the Plan, or to be treated uniformly with other
Participants and Executives.
(e) Tax Withholding. The Company or any Subsidiary is authorized
to withhold from any Award granted or any payment due under the Plan amounts of
withholding and other taxes due with respect to an Award and to take such other
action as the Committee may deem necessary or advisable to enable the Company
and Participants to satisfy obligations for the payment of withholding taxes and
other tax obligations relating to any Awards
(f) No Right to Employment. Nothing contained in the Plan or any
Award Agreement shall confer, and no grant of an Award shall be construed as,
(i) conferring, upon any Participant or any Executive, any right to continue in
the employ or service of the Company or any Subsidiary or (ii) interfering in
any way with the right of the Company or any Subsidiary to (A) terminate any
Participant's or Executive's employment or service at any time or (B) increase
or decrease the compensation of any Participant or Officer from the rate in
existence at the time of granting of an Award, except as may be expressly
provided in any Award Agreement or other compensation arrangement.
(g) Unfunded Status of Awards. The Plan is intended to constitute
an "unfunded" plan for incentive and deferred compensation, and the Company
shall not have any obligation to establish any trust or other special or
separate fund or to make any other segregation of assets to assure the payment
of any Award under the Plan. With respect to any
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payments not yet made to Participant pursuant to an Award, nothing contained in
the Plan or any Award shall give any such Participant any rights that are
greater than those of a general unsecured creditor of the Company; provided,
however, that the Board, in its sole and absolute discretion, may authorize the
creation of trusts or make other arrangements to meet the Company's obligations
under the Plan to deliver cash pursuant to any Award, which trusts or other
arrangements shall be consistent with the "unfunded" status of the Plan unless
the Board otherwise determines.
(h) No Limitation on Other Compensatory Arrangements. Nothing
contained in the Plan shall prevent the Company or any Subsidiary from adopting
or continuing in effect other or additional compensation arrangements (which may
include, without limitation, employment agreements with executives and
arrangements which relate to Awards under the Plan), and such arrangements may
be either generally applicable only in specific cases.
(i) Governing Law. The validity, interpretation, construction and
effect of the Plan, any rules and regulations relating to the Plan and any Award
thereunder shall be governed by the laws of the State of Delaware (without
regard to provisions governing conflicts of laws) and applicable federal law.
(j) Severability. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction
or as to any Person or Award, or would disqualify the Plan or any Award under
any law deemed amended to conform to applicable laws or, if it cannot be
construed or deemed amended without, in the determination of the Board,
materially altering the intent of the Plan, it shall be deleted and the
remainder of the Plan shall remain in full force and effect; provided, however,
that, unless otherwise determined by the Board, the provision shall not be
construed or deemed amended or deleted with respect to any Participant whose
rights and obligations under the Plan are not subject to the law of such
jurisdiction or the law deemed applicable by the Board.
(k) Headings. Headings are given to the sections and subsections
of the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
(l) Indemnification. Each person who is or shall have been a
member of the Committee shall be indemnified and held harmless by the Company
against and from any loss, cost, liability or expense that may be imposed upon
or reasonably incurred by him in connection with or resulting from any claim,
action, suit or proceeding to which he may be made a party or in which he may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by him in settlement thereof, with the
Company's approval, or paid by him in satisfaction of any judgment in any such
action, suit or proceeding against him, provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive and shall be independent of any other
rights of indemnification to which such persons may be entitled under the
Company's Certificate of Incorporation or By-laws, by contract, as a matter of
law, or otherwise.
(m) Construction. For purposes of the Plan, the following rules of
construction shall apply: (i) the word "or" is disjunctive but not necessarily
exclusive; (ii) words in the singular include the plural; words in the plural
include the singular; and words in the neuter gender include the masculine and
feminine genders; and (iii) words in the masculine or feminine gender include
the other and neuter genders.
(n) Costs and Expenses. The costs and expenses of administering
the Plan shall be borne solely by the Company.
SECTION 12. EFFECTIVE DATE AND TERMINATION.
(a) The Plan shall become effective as of the Effective Date.
(b) No Awards shall be made under the Plan after December 31,
2015.
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