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EXHIBIT 10.29
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XXXXXXXX XXXXX, XXXX XXX XXXXXX XX XXXXXX,
XXXXXXXX
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
PLAINTIFF: Xxxxxxx X. Xxxxx, on behalf of himself
and all others similarly situated Case No.: 01CV26
DEFENDANTS: Metretek Technologies, Inc., et al. Courtroom 2
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STIPULATION OF SETTLEMENT
This Stipulation of Settlement (the "Stipulation"), dated as of March 26,
2003, is made and entered into by and among the following parties (as
defined further in Section V (1) hereof) to the above-entitled Litigation:
(i) the Plaintiff (in his representative capacity on behalf of himself and
the Class) by and through his counsel of record in the Litigation; and (ii)
the "Settling Defendants" by and through their counsel of record in the
Litigation. The Stipulation is intended by the Settling Parties to fully,
finally and forever resolve, discharge and settle the Released Claims (as
defined herein), upon and subject to the terms and conditions set out in
this joint Stipulation of Settlement. This settlement is contingent upon
resolution of an Interpleader Action to be filed by or against the Settling
Defendants' insurance company and the payment of a minimum amount of
Insurance Proceeds into the Settlement Fund as provided herein.
I. THE LITIGATION
This lawsuit (referred to in this Stipulation as "the Class Action" or
"the Litigation") was filed in the District Court for the City and County of
Denver, Colorado on January 3, 2001. The Class Action generally alleges that the
Settling Defendants and others engaged in violations of the Colorado Securities
Act in connection with the selling of units in Xxxxxx Midstream 1997-1 Business
Trust (hereinafter "Trust").
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II. PRETRIAL PROCEEDINGS AND DISCOVERY IN THE LITIGATION
Class Counsel has conducted extensive research and investigation during
the prosecution of the Litigation. This discovery and investigation has
included, inter alia, (i) inspection of hundreds of pages of documents produced
by the Settling Defendants, available public records, and documents voluntarily
provided by numerous cooperating class members; (ii) review of hundreds of pages
of the PPM and its supplements; (iii) review of a previously filed federal
lawsuit and arbitration relating to the Amoco Contract that is also at issue in
this case, (iv) exhaustive pre-filing investigation of the claims and counts set
out in the original complaint and proposed amended complaint, (v) retention of a
private investigator to search for assets to satisfy a judgment or evaluate the
settlement offer, (vi) an investigation of the tariffs and regulations governing
the transmission of natural gas liquids, and (vii) extensive research of the
applicable law with respect to the claims asserted in the Complaint and the
potential defenses thereto.
Class Counsel also filed and prevailed on a motion for class
certification, filed a motion for partial summary judgment that is currently
pending, opposed the Defendants' various motions to dismiss, and opposed the
Settling Defendants motion for partial summary judgment regarding collateral
estoppel. Class Counsel also defended the deposition of the class representative
and participated in the deposition of the primary broker-dealer. Class Counsel
have also served detailed discovery on the Defendants including interrogatories,
request for production of documents and request for admissions. Class Counsel
also drafted a proposed Second Amendment to their Complaint that has been
provided to the Metretek Defendants in order to demonstrate the "road ahead" in
the event there was not a settlement.
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III. SETTLING DEFENDANTS' STATEMENT
The Settling Defendants have denied and continue to deny each and all
of the claims and contentions alleged by the Representative Plaintiff on behalf
of the Class. The Settling Defendants also have denied and continue to deny,
inter alia, the allegations that the Representative Plaintiff or the Class has
suffered damage. The Settling Defendants have concluded that the further conduct
of the Litigation concerning the Released Claims would be protracted and
expensive, and they also have taken into account the uncertainty and risks
inherent in any litigation, especially in complex cases like this Litigation.
Therefore, the Settling Defendants have determined that it is desirable and
beneficial to them that the Litigation concerning the Released Claims be fully
and finally settled as to them in the manner and upon the terms and conditions
set forth in this Stipulation.
The Settling Defendants have asserted cross claims in the Litigation
for fraud, negligent misrepresentation, breach of contract, breach of fiduciary
duty, civil conspiracy, contribution and contractual indemnification against
Xxxx Xxxxxxx and his companies, Xxxxxxx Oil, Inc. and Farstad Gas and Oil, LLC.
The Settling Defendants intend to continue to pursue their claims against these
Farstad defendants.
IV. CLAIMS OF THE REPRESENTATIVE PLAINTIFF AND BENEFITS OF SETTLEMENT
The Representative Plaintiff believes that the claims asserted in the
Litigation have merit and that the evidence developed to date in the Litigation
supports the claims asserted. However, Class Counsel and the Representative
Plaintiff recognize and acknowledge the expense and length of continued
proceedings necessary to prosecute the Litigation against the Settling
Defendants through trial and through appeals. Counsel for the Representative
Plaintiff also have
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taken into account the uncertainty and risks inherent in any litigation,
especially in complex cases like this Litigation, and they believe that the
settlement set forth in the Stipulation confers substantial benefits upon the
Class and each of the Class Members. Based on their evaluation, Class Counsel
and the Representative Plaintiff have determined that the settlement set forth
in the Stipulation is in the best interests of the Class and each of the Class
Members.
V. TERMS OF STIPULATION AND AGREEMENT OF SETTLEMENT
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the
Representative Plaintiff (for himself and the Class), and the Settling
Defendants, by and through their respective attorneys of record, that, subject
to the approval of the Court and the satisfaction of the conditions set forth
herein, the Litigation and the Released Claims (defined below) shall be finally
and fully compromised and settled, as to the Released Persons (defined below),
upon and subject to the terms and conditions of the Stipulation, as follows:
1. DEFINITIONS
As used in the Stipulation, the following terms have the meanings
specified below. Any defined term in this Stipulation that is not otherwise
defined herein shall have the meaning set forth in the Complaint.
"Brokerage Firms" means IFG Network Securities, Inc., Intrust
Financial Services, Investment Tax Strategies, Professional Planning,
Xxxxx Financial Service, Capital Strategies, Ltd., Sentra Securities, GBS
Financial, Strategic Assets, Inc., and Xxxxx Xxxxx & Co. Brokerage Firms does
not mean or include Xxxxxx Capital Resources, Inc. or Xxxxxx X. Xxxxxxx.
"Class" means all persons or entities who are members of that certain
class certified by the Court on September 28, 2001, in connection with the Class
Action and who did not voluntarily opt out of the class.
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"Class Action" means the lawsuit filed in the District Court for the
City and County of Denver, Colorado as Case No. 01 CV 26, captioned Xxxxxxx X.
Xxxxx, on behalf of himself and all others similarly situated v. Metretek
Technologies, Inc., et al. The Class Action is also referred to in this
Stipulation as the Litigation.
"Class Counsel" means the following counsel for Representative
Plaintiff in the Litigation: The Law Office of Xxxxxxx X. Xxxxxxx, Xxxxxxx &
Xxxxxxx, and Treece, Alfrey, Xxxxx & Bosworth, P.C.
"Class Member" or "Member of the Class" means a Person who falls within
the definition of the Class as set forth in herein, including his, her, its or
their respective past, present and future employees, agents, officers,
directors, principals, members, partners, predecessors, successors, heirs,
executors, administrators, trustees, assigns, representatives, attorneys,
consultants, advisors, parents, insurers, subsidiaries, and related or
affiliated entities. Excluded from the class are the Defendants, their
affiliates, officers, directors, trustees, family members, employees and any
individual that opted out of the class.
"Claims Against Xxxxxxx" means those claims against any of the Xxxxxxx
Defendants that are being asserted by either the Class or any of the Metretek
Defendants.
"Contribution Claims" has the meaning set forth in Section 2.3.3.
"Effective Date" means the first date by which all of the events and
conditions specified in Sections 6 and 8 of the Stipulation have been met and
have occurred. "Escrow Account" means the account established under Section 2.1.
"Escrow Agent" means the Person serving as the Escrow Agent under the
Escrow Agreement, which Person shall be a bank or trust company organized under
the laws of the United States of America or the State of Colorado or New York,
having capital and surplus of
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not less than $100 million, and shall be authorized under the laws
governing its organization to exercise corporate trust powers and shall be
authorized under such laws of the State of Colorado to enter into and perform
the Escrow Agreement.
"Escrow Agreement" shall mean that certain agreement required under
Section 2.1 in connection with the Escrow Account to be entered into between the
Settling Parties, provided that if the language of such agreement cannot be
agreed upon, then the Settling Parties agree to arbitrate any language disputes
before a single American Arbitration Association arbitrator in Denver, Colorado
to be mutually agreed to by Class Counsel and Metretek.
"Escrow Funds" means any funds deposited into the Escrow Account, and
shall include any interest or earnings thereon.
"Failure Date" means the date (should it occur) that the Court's Final
Judgment and Order approving this Settlement as required in Section 6 is
overturned, in whole or in material part, by final, non-appealable order or
ruling of this Court or another court of competent jurisdiction with
authority to do so, or when any one or more of the conditions in Section 8
are not satisfied; provided that the Failure Date shall mean December 31,
2006 or such later date as may be agreed to by the Settling Parties if
neither the Failure Date nor the Effective Date shall have occurred on or
before such date.
"Xxxxxxx Defendants" means Xxxx Xxxxxxx (in his individual capacity and not
as an active trustee as set forth herein), Farstad Gas & Oil, LLC, and
Xxxxxxx Oil, Inc., and any of their affiliates including without
limitation, SPF Energy, Inc.
"Final" means (i) the date of final affirmance on an appeal from a
judgment, the expiration of the time for a petition for a writ of certiorari to
review a judgment and, if certiorari be granted, the date of final affirmance of
a judgment following review pursuant to that grant; or (ii) the date of final
dismissal of any appeal from a judgment or the final dismissal of any proceeding
on certiorari to review a judgment; or (iii) if no appeal is filed, the
expiration date of the time for the filing or noticing of any appeal from a
judgment, i.e., thirty (30) days after entry of the judgment or such longer time
as allowed by extension.
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"Gulf" means Gulf Insurance Company, the issuer of the Insurance
Policy.
"Insurance Policy" means the Directors and Officers Liability and
Company Indemnification Insurance Policy No. GAO719191 issued by Gulf to
Metretek.
"Insurance Proceeds" means those proceeds available under the Insurance
Policy.
"Interpleader Account" shall mean the account established by this Court
to accept the Insurance Proceeds subject to an escrow arrangement if such
Insurance Proceeds are interpled to this Court by Gulf.
"Interpleader Action" shall mean that action or claim commenced by Gulf
in order to obtain court approval for the application of the Insurance Proceeds
as required in this Stipulation, or some other action or claim commenced against
Gulf to achieve the same result.
"Interpled Funds" shall mean the Insurance Proceeds deposited into the
Interpleader Account by Gulf, along with any interest or earnings thereon.
"Judgment" means the judgment to be rendered by the Court, finally
approving the terms of this settlement as set forth in this Stipulation.
"Lead Class Counsel" means Xxxxxxx X. Xxxxxxx of The Law Office of
Xxxxxxx X. Xxxxxxx.
"Litigation" means that certain lawsuit filed in the District Court for
the City and County of Denver, Colorado as Case No. 01CV26, captioned Xxxxxxx X.
Xxxxx, on behalf of himself and all others similarly situated v. Metretek
Technologies, Inc., et al. The Litigation is also referred to in this
Stipulation as the Class Action.
"Metretek" means Metretek Technologies, Inc.
"Metretek Claims" has the meaning set forth in Section 2.3.
"Metretek Counterclaims" has the meaning set forth in Section 2.3.3.
"Metretek Defendants" shall mean Xxxxxx Midstream 1997-1 Business Trust
("Trust"), Xxxxxx Midstream-Xxxxxxx, LLC, Metretek Technologies, Inc., Xxxxxx
Gas Transmission,
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Inc., Xxxxxx Capital Resources, Inc., W. Xxxxxxx Xxxxxx ("Xxxxxx"),
Xxxxxxx X. Xxxxxx ("Xxxxxx"), and Xxxxxx X. Xxxxxxx ("Packard"). Xxxxxx, Xxxxxx
and Packard may be referred to together as the "Individual Metretek Defendants."
The Metretek Defendants are also referred to in this Stipulation as the Settling
Defendants.
"Metretek Note" means a $3 Million note from Metretek Technologies,
Inc. in the form attached hereto as EXHIBIT A, that is guaranteed by the Trust
and all subsidiaries of Metretek pursuant to guarantees in the form attached
hereto as EXHIBIT B.
"Metretek Persons" means Metretek, all subsidiaries of Metretek
including, without limitation, Southern Flow Companies, Inc., and all
Individual Metretek Defendants.
"Net Recovery" has the meaning set forth in Section 2.3.4.
"Notice" means the Notice of Proposed Settlement Of Class Claims
referred to in Section 5.1.
"Payment Date" means that date which is 30 days after the Court enters
the Final Judgment and Order as required in Section 6, or such
additional time as permitted by Court order for the filing of an appeal
of the Final Judgment and Order, or such later date as may be agreed to
by the Settling Parties.
"Person" means an individual, corporation, partnership, limited
partnership, association, joint stock company, estate, legal
representative, trust, unincorporated association, government or any
political subdivision or agency thereof, and any business or legal
entity and their spouses, heirs, predecessors, successors,
representatives, or assignees.
"Prepayment Amount" has the meaning set forth in Section 2.3.5.
"Released Claims" shall mean and include any and all claims, causes of
action, demands, rights, liabilities, costs and expenses (including without
limitation attorneys' fees and interest) of any kind or nature whatsoever,
whether based on statutory, tort, contractual or any other theory of recovery or
liability, whether at law or in equity, whether asserted or unasserted, whether
known or unknown (including Unknown Claims as defined below), that have been or
that could have been asserted in this or any other forum or proceeding by or on
behalf of the Representative Plaintiff, the Class, or any Member of the Class
(together, "Releasors") directly or indirectly based upon, arising out of, or
related to (a) the Trust, (b) any purchases or sales of securities in
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the Trust or investment in the Trust, (c) the subject matter of the
Litigation, (d) any action, omission, duty or obligation of any Released Person
related thereto, (e) the institution, prosecution, assertion, defense or
resolution of the Litigation (except with respect to the obligations in this
Stipulation), (f) any communications to or with any Person, or (g) otherwise
arising out of or relating to any facts, circumstances, allegations, claims,
causes of action, representations, statements, reports, disclosures,
transactions, events, occurrences, acts, omissions or failures to act in
connection with the Trust or by any Settling Defendant or any Released Person of
whatever kind or character whatsoever, irrespective of the state of mind of the
actor performing or omitting to perform the same that have been or could have
been alleged in any pleading, amended pleading, argument, complaint, amended
complaint, brief, motion, report or filing in the Litigation, or any other forum
or other proceeding.
"Released Persons" means each and all of the Settling Defendants, and
his, its or their respective past, present and future employees, agents,
officers, directors, principals, members, partners, predecessors, successors,
heirs, executors, administrators, trustees, assigns, representatives, attorneys,
accountants, consultants, advisors, parents, insurers, subsidiaries, and related
or affiliated entities including, without limitation, Southern Flow Companies,
Inc., Kendor Jones, Welborn, Xxxxxxxx, Xxxx & Xxxxxx, P.C., Xxxxxx X. Xxxxx,
Xx., Xxxxxxx & Xxxxxxxxx, P.C., Xxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, P.C.,
Xxxxxx & Xxxxx, the Brokerage Firms (except as limited by Section 3.3 below),
Xxxxxx Xxxxx Xxxxx Xxxxxxxxx & Xxxxxx, LLC, Kegler, Brown, Hill & Xxxxxx Co.,
L.P.A., Xxxxxxxx Corn Xxxx & Xxxxxx, P.C., and Xxxxxx Xxxx XxXxxx & Xxxxxx, and
his, its, or their respective past, present and future employees, agents,
officers, directors, principals, members, partners, predecessors, successors,
heirs, executors, administrators, trustees, assigns, representatives, attorneys,
consultants,
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advisors, parents, insurers, subsidiaries, and related or affiliated entities,
but specifically excluding the Xxxxxxx Defendants.
"Remaining Defendants" shall mean the Xxxxxxx Defendants and any other
party named as a defendant in the Metretek Claims.
"Representative Plaintiff" means Xxxxxxx Xxxxx.
"Settlement" means the settlement contemplated by this Stipulation as
approved by the Court.
"Settlement Fund" is the sum of (a), (b), (c) and (d) below: (a) an
initial payment of $2.75 Million, (b) all regularly scheduled payments made
under the $3 Million Metretek Note, (c) any Net Recovery from the Xxxxxxx
Defendants or any other person on account of either Claims Against Xxxxxxx or
Metretek Claims whether such Net Recovery is additional consideration or
Prepayment Amounts, (d) all accrued interest or earnings on (a) through (c).
"Settling Defendants" means the Metretek Defendants. The Settling
Defendants are also referred to in this Stipulation as the Metretek
Defendants.
"Settling Parties" means, collectively, each of the Settling Defendants
and the Representative Plaintiff on behalf of himself and the Class.
"Settling Party" means any of the Settling Defendants or the
Representative Plaintiff on behalf of himself and the Class.
"Stipulation" means this Stipulation of Settlement, together with all
Exhibits hereto. "Stock Sale Prepayment" has the meaning set forth in Section
2.4.
"Unknown Claims" means any Released Claims which the Representative
Plaintiff or Class Members do not know or suspect to exist in his, her or its
favor against the Released Persons at the time of the release of the Released
Persons which, if known by him, her, or it, might have affected his, her, or its
settlement with and release of the Released Persons, or might
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have affected his, her, or its decision not to object to this
settlement. The Representative Plaintiff and Class Members may hereafter
discover facts in addition to or different from those which he or she now knows
or believes to be true with respect to the subject matter of the Released
Claims, but hereby stipulate and agree that the Representative Plaintiff and
Class Members shall be deemed to, upon the Effective Date, fully, finally, and
forever settle and release any and all Released Claims, as against the Released
Persons, known or unknown, suspected or unsuspected, contingent or
non-contingent, whether or not concealed or hidden, which now exist, or
heretofore have existed upon any theory of law or equity, including, but not
limited to, conduct which is negligent, intentional, with or without malice, or
a breach of any duty, law or rule including, but not limited to state and
federal securities and racketeering laws, without regard to the subsequent
discovery or existence of such different or additional facts. The Representative
Plaintiff and Class Members acknowledge that the foregoing waiver was separately
bargained for and is a key element of the Settlement of which this release is a
part.
"WF Subsidiaries" means Southern Flow Companies, Inc., Metretek,
Incorporated and PowerSecure, Inc.
2. CLASS CONSIDERATION FOR SETTLEMENT
The Representative Plaintiff and Class Counsel agreed to settle this
Litigation only after determining that (a) the Representative Plaintiff and
members of the Class will receive substantial monetary and/or other
additional benefits as a result of the Settlement, (b) there were
substantial risks attendant to the continuation of the Litigation, (c) the
Settlement provides for a prompt and efficient resolution of all claims
against the Settling Defendants, and (d) the Settlement is in the best
interests of the Representative Plaintiff and members of the Class and
constitutes a fair, reasonable and adequate resolution of the Litigation as
to the Settling Defendants.
2.1 THE $2.75 MILLION PAYMENT
Within 5 business days after the Payment Date, Metretek will pay into an
Escrow Account as Escrow Funds an amount equal to the difference between
$2,750,000 and the amount of the Interpled Funds, so long as the amount of
the Interpled Funds is not less than $2,375,000. If,
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as of the Payment Date, Gulf has not interpled any Interpled Funds,
Metretek will pay into an Escrow Account as Escrow Funds an amount equal to
the difference between $2,750,000 and the amount of the Insurance Proceeds
available as of that date under the Insurance Policy as represented by
Gulf, so long as the amount of the Insurance Proceeds as of that date is
not less than $2,375,000.
The Escrow Account will be governed by an Escrow Agreement agreeable to
Lead Class Counsel, Metretek and the Escrow Agent thereunder, and will
require the signatures and authorization of both Lead Class Counsel and
Metretek to make any disbursements of Escrow Funds to any Person. Fees of
the Escrow Agent will be payable first out of any interest or earnings on
the Escrow Funds, with the remaining fees shared equally by Metretek and
the Class. In the event there is no current interest or earnings available
to pay the fees, Metretek and the Class shall be entitled to reimbursement
from subsequent interest or earnings.
No Person, other than the Escrow Agent, Metretek or the Settlement Fund,
shall have any rights or interest in the Escrow Account or the Escrow
Funds, and under no circumstances shall the Escrow Agent be permitted, to
disburse any Escrow Funds to any Person other than Metretek or the
Settlement Fund, and then only as provided and permitted in this
Stipulation and in the Escrow Agreement.
In addition, the Insurance Proceeds shall either be paid into the Escrow
Account as additional Escrow Funds or into the Interpleader Account as
Interpled Funds as soon as made available by Gulf. Any Escrow Funds or
Interpled Funds shall be retained in the Escrow Account or the Interpleader
Account, respectively, until either the Failure Date or the Effective Date
occurs. The Settling Defendants represent that as of the date of this
Stipulation they have been advised by Gulf that the Insurance Proceeds
exceed $2,375,000.
In the event the Failure Date occurs, then all Escrow Funds and Interpled
Funds shall be immediately returned (with any interest or earnings thereon,
but less any fees or expenses of the Escrow Account or Interpleader
Account) to the Person depositing such funds, and both Lead Class Counsel
and Metretek agree to sign an authorization to that effect and deliver the
same to the Escrow Agent. In the event the Effective Date occurs, then all
such Escrow Funds and all Interpled Funds shall be immediately paid into
the Settlement Fund (with any interest or earnings thereon, but less any
fees or expenses of the Escrow Account or Interpleader Account), and both
Lead Class Counsel and Metretek agree to sign an authorization to that
effect and deliver the same to the Escrow Agent. In the event the Effective
Date occurs on or before the Payment Date, then the Escrow Funds and
Interpled Funds (with any interest or earnings thereon) may be paid
directly into the Settlement Fund instead of into the Escrow Account or
Interpleader Account.
It is understood that this Settlement is conditioned upon Gulf actually
paying, either pursuant to a Final judgment in the Interpleader Action or
otherwise, to either Metretek or the Settlement Fund, whether directly,
through the Interpleader Account, through the Escrow Account or otherwise,
the sum of at least $2,375,000 in Insurance Proceeds from the Insurance
Policy on behalf of the
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Settling Defendants as provided in this Stipulation and such Insurance
Proceeds not being subject to any further claims by any other Person;
provided, however, that Metretek shall have the right, in its sole
discretion, but not the obligation to waive such condition if Gulf pays a
lesser amount of Insurance Proceeds on behalf of the Settling Defendants
that Metretek, in its sole discretion, deems acceptable. Prior to the
Preliminary Approval Hearing (as defined below) the Metretek Defendants
will submit affidavits to the effect that no other insurance policies apply
to the issues raised in the Litigation.
2.2 The $3 Million Metretek Note
Within 5 business days after the Payment Date, Metretek shall execute a
note payable to the Settlement Fund for the benefit of the Class in the amount
of $3,000,000 (the "Metretek Note"). The Metretek Note shall be in the form
attached hereto as EXHIBIT A and shall bear interest at the Wall Street Journal
prime rate plus 3% and will be payable in 16 quarterly installments of $187,500
plus accrued interest, commencing on the first day of the month which is six (6)
months after the Payment Date. In the event that neither the Effective Date nor
Failure Date has occurred by the time the Metretek Note is payable, then
Metretek shall pay all installments as due under the Metretek Note as Escrow
Funds into the Escrow Account referenced in Section 2.1 above. These
installments shall be retained as Escrow Funds in the Escrow Account until
either the Effective Date or Failure Date occurs. In the event the Failure Date
occurs, then all such payments under the Metretek Note (along with any interest
or earnings thereon) shall be immediately returned to Metretek, and both Lead
Class Counsel and Metretek agree to sign an authorization to that effect and
deliver the same to the Escrow Agent. In the event the Effective Date occurs,
then all such payments under the Metretek Note (with any interest or earnings
thereon) shall be immediately paid into the Settlement Fund, and both Lead Class
Counsel and Metretek agree to sign an authorization to that effect and deliver
the same to the Escrow Agent. In the event the Effective Date occurs on or
before the Payment Date, then the payments under the Metretek Note (with any
interest or earnings thereon) may be paid directly into the Settlement Fund
instead of the Escrow Account.
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The Metretek Note shall be guaranteed by the Trust and all subsidiaries
of Metretek pursuant to guarantees in the form attached hereto as EXHIBIT B.
Notwithstanding the foregoing, no individual (including Wanger, Packard, and
Xxxxxx) shall be required to guarantee the Metretek Note. In the event that the
Failure Date occurs, then the Metretek Note along with any guarantees shall be
returned to Metretek.
2.3 THE METRETEK CLAIMS
2.3.1 The Metretek Defendants believe they may have valid causes of action
against Xxxx Xxxxxxx, Farstad Gas & Oil, LLC, Xxxxxxx Oil, Inc., Welborn,
Sullivan, Xxxx & Xxxxxx, P.C., Xxxxxxx & Xxxxxxxxx, P.C., IFG Network
Securities, Inc., Xxxxxxx X. Xxxxxxxx, and Xxxxxx & Xxxxx relating to the
Trust, sale of Trust units, the Xxxxxxx Product, the Xxxxxxx Facility,
Amoco Contract and the other facts and circumstances giving rise to
Plaintiff's claims set forth in his complaint. The Metretek Defendants have
either asserted claims against these parties in the Litigation or have
obtained tolling agreements with these third parties.
2.3.2 The Metretek Defendants shall either (a) vigorously prosecute the
"Metretek Claims" referenced in the immediately preceding Paragraph, or, in
the alternative, (b) such Metretek Defendants may satisfy this obligation
by requesting that Class Counsel prosecute such Metretek Claims, and defend
any resulting "Contribution Claims" (as defined below), in the manner set
forth in the next paragraph. In the event some Metretek Defendants agree to
request Class Counsel but others do not, all Metretek Defendants agree to
be bound by a majority vote of Metretek Defendants.
2.3.3 In the event the Metretek Defendants make this request of Class
Counsel, then Class Counsel will prosecute those Metretek Claims that Class
Counsel in their sole discretion shall determine to prosecute, and defend any
resulting Contribution Claims (as defined below). The Metretek Defendants shall
retain separate counsel to defend any "Metretek Counterclaims" (as defined
below). Class Counsel shall have no duty to defend against any Metretek
Counterclaims. In the event that Class Counsel elects not to prosecute any of
the disclosed Metretek Claims by expressly advising Metretek in writing of the
same within thirty (30) days from the request by the Metretek Defendants, then
the Metretek Defendants, or any of them, may, but shall not be required to,
prosecute such Metretek Claims by other counsel of its own
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selection. All Metretek Defendants agree that Class Counsel shall have the right
to prosecute (or not prosecute) such claims, as Class Counsel shall in their
sole discretion determine. However, if Class Counsel prosecutes any Metretek
Claims, they must also defend any resulting Contribution Claims.
To the extent that any Person recovers from any Metretek Person on any
claim, cross claim, counterclaim or third party claim by such Person that is
based in whole or in part on such Person's liability, directly or indirectly, to
the Representative Plaintiff, the Class or any Class Member including, without
limitation, any claim for contribution or indemnification (collectively,
"Contribution Claims"), then the amount of such Contribution Claims including,
without limitation, any damages, interest, costs, expenses, fees or attorneys'
fees, shall be paid from any amounts recovered by either the Metretek Person or
the Class, as applicable, from the prosecution of any Metretek Claims, and shall
be deducted from any computations of "Net Recovery" (as defined below).
"Metretek Counterclaims" are all claims brought against any Metretek Person
other than the "Contribution Claims."
2.3.4 Any Metretek Defendant requesting Class Counsel to prosecute such
Metretek Claims agrees that Class Counsel shall work on a 100% contingent
basis and shall advance all costs incurred in prosecuting such Metretek
Claims and defending any resulting Contribution Claims by those Persons
against whom Class Counsel is prosecuting Metretek Claims or by any other
Person as a result of those Metretek Claims. Any such Metretek Defendant
also agrees that from any recovery Class Counsel shall be entitled to
deduct the first 1/3 of the "Net Recovery" (as defined in the following
sentence) of any amounts received as contingent attorneys' fees and shall
also be entitled to the reimbursement of all expenses incurred in the
prosecution of the Metretek Claims and defense of any resulting
Contribution Claims from the remaining balance of the Net Recovery. If the
Metretek Defendants do not request that Class Counsel prosecute any
Metretek Claims, or if Class Counsel elects not to prosecute any Metretek
Claims, then counsel selected by the Metretek Defendants shall be entitled
to deduct the first 1/3 of the "Net Recovery" (as defined in the following
sentence) of any amounts received as contingent attorneys' fees and shall
also be entitled to the reimbursement of all expenses incurred in the
prosecution of the Metretek Claims and defense of any resulting
Contribution Claims from the remaining balance of the Net Recovery.
15
As used herein, the term "Net Recovery" shall mean the amount of any
damages, interest, fees, expenses or other amounts paid on any Metretek
Claims or any Claim Against Xxxxxxx prosecuted on behalf of the Class,
pursuant to a Final judgment, or pursuant to a settlement of such claims,
after payment on account of any resulting Contribution Claims made against
and payable by any Metretek Person in connection with such prosecuted
claims. No Metretek Claim or Claim Against Xxxxxxx shall be settled without
a full, complete and final release of all Metretek Persons.
2.3.5 100% of any Net Recovery, after application of any proceeds as
provided in Section 2.3.4, shall be paid into the Settlement Fund for the
benefit of the Class. Of this amount: (a) 50% of such Net Recovery shall be
treated as additional consideration for this settlement, and (b) 50% of any Net
Recovery shall be treated as a "Prepayment Amount" as set forth in Paragraphs
2.3.6 and 2.3.7 below.
2.3.6 All Prepayment Amounts shall be paid into the Settlement Fund for
the benefit of the Class. The Prepayment Amount shall be treated as a prepayment
of the Metretek Note and shall be applied against the last quarterly
installments due under the Metretek Note so as to reduce the term of the
Metretek Note. In the event the Prepayment Amount exceeds the aggregate amount
still then due on the Metretek Note, then Metretek shall be directly paid such
excess Prepayment Amount up to the total amount actually paid under the Metretek
Note. Such direct payments of any excess Prepayment Amount shall be made at the
same time Class Members are sent their checks of the Net Recovery referred to in
the first sentence of this Section 2.3.6.
2.3.7 The Prepayment Amount shall be capped at the sum of the total
amount actually paid under the Metretek Note plus the aggregate amount still due
on or before the maturity date under the Metretek Note. Any part of the
Prepayment Amount exceeding the sum of the total amount actually paid under the
Metretek Note plus the aggregate amount still due on or before
16
the maturity date under the Metretek Note shall not be paid to Metretek
but rather shall be paid into the Settlement Fund as additional consideration
for the benefit of the Class.
2.3.8 Notwithstanding anything to the contrary set forth in this Section
2.3, in the event that neither the Effective Date nor Failure Date has
occurred by the time that there is a Net Recovery on the Metretek Claims,
then the Net Recovery shall be paid into the Escrow Account referenced in
Section 2.1 above. All such payments shall be retained in the Escrow
Account until either the Effective Date or the Failure Date occurs. If the
Failure Date occurs, then the Net Recovery from the Metretek Claims shall
be immediately returned (along with any interest or earnings thereon, but
less any fees or expenses of the Escrow Account) to Metretek, and both Lead
Class Counsel and Metretek agree to sign an authorization to that effect
and deliver the same to the Escrow Agent. In the event the Failure Date
occurs, Class Counsel shall be entitled to keep any fees earned or expenses
reimbursed in connection with prosecution of the Metretek Claims. In the
event the Effective Date occurs, then any Net Recovery shall be immediately
applied (along with any interest or earnings thereon, but less any fees or
expenses of the Escrow Account) as set forth in Sections 2.3.5, 2.3.6 and
2.3.7.
2.4 STOCK SALE PREPAYMENTS
2.4.1 Currently, Metretek owns 100% of the common stock of Southern
Flow Companies, Inc., Metretek, Incorporated and PowerSecure, Inc. (collectively
the "WF Subsidiaries"). Currently, the common stock is the only one class of
stock in the WF Subsidiaries.
2.4.2 Metretek agrees that none of the WF Subsidiaries will create any
other class of stock. Metretek agrees that none of the WF Subsidiaries will sell
any of its common stock, without the written consent of Lead Class Counsel,
which may be given or withheld at his sole discretion for any reason, or no
reason at all; provided, however, that Powersecure, Inc. ("Powersecure") shall
be permitted, without the consent of lead class counsel, to issue 15% of its
common stock outstanding as of January 1, 2003 to its employees, as previously
authorized by Powersecure.
2.4.3 In the event that Metretek desires to sell any of the common
stock of any WF Subsidiary without obtaining Lead Class Counsel's consent, it
may do so provided that (i) each
17
of the WF Subsidiaries who desires to sell such stock makes a
prepayment on the Metretek Note in the amount of the lesser of at least $1
Million or the then outstanding balance (principal and interest) of the Metretek
Note, or (ii) if more than one of the WF Subsidiaries desires to sell any of
their common stock, then each WF Subsidiary selling stock shall make a
prepayment on the Metretek Note of at least $1 Million or their prorata share of
the then outstanding balance (principal and interest) of the Metretek Note. For
example, if all three of the WF Subsidiaries desired to sell common stock, then
the aggregate prepayment amount would be the lesser of $3 Million or the then
outstanding balance (principal and interest) of the Metretek Note.
2.4.4 All of such prepayments of the Metretek Note (the "Stock Sale
Prepayments") shall be paid into the Settlement Fund for the benefit of the
Class and shall be applied against the last quarterly installments due under the
Metretek Note so as to reduce the term of the Metretek Note. In the event that
any of the Stock Sale Prepayments would exceed the aggregate amount still then
due on the Metretek Note, then the obligation to make Stock Sale Prepayments
would be limited to the amount then still due on the Metretek Note. For example,
if two of the WF Subsidiaries desired to sell common stock at a time in which
the amount due under the Metretek Note was $1.6 Million, then each of the WF
Subsidiaries would make a Stock Sale Prepayment of $800,000.
2.4.5 Notwithstanding anything to the contrary set forth in this
Section 2.4, in the event that neither the Effective Date nor Failure Date has
occurred by the time that there is a Stock Sale Prepayment, then the Stock Sale
Prepayment shall be paid into the Escrow Account referenced in Section 2.1
above. All such Stock Sale Prepayments shall be retained in the Escrow Account
until either the Effective Date or the Failure Date occurs. If the Failure Date
occurs, then the Stock Sale Prepayments shall be immediately returned (along
with any interest or earnings
18
thereon, but less any fees or expenses of the Escrow Account) to
Metretek, and both Lead Class Counsel and Metretek agree to sign an
authorization to that effect and deliver the same to the Escrow Agent. In the
event the Effective Date occurs, then any Stock Sale Prepayments in the Escrow
Account shall be immediately applied (along with any interest or earnings
thereon, but less any fees or expenses of the Escrow Account) as set forth in
Section 2.4.4.
3. SETTLING DEFENDANTS' CONSIDERATION FOR SETTLEMENT
3.1 RELEASES FOR SETTLING DEFENDANTS
Upon the Effective Date, the Representative Plaintiff and Class
Members, individually and collectively, shall be deemed to have, and by
operation of the Judgment shall have, irrevocably, fully, finally, and forever
released, relinquished and discharged each and all of the Settling Defendants
and Released Persons from all Released Claims (including Unknown Claims), except
claims to enforce this Stipulation.
The Representative Plaintiff and Class Members, individually and
collectively, expressly and intentionally waive all rights and benefits which
it, he, she or they now have, or in the future may have, under the terms of
section 1542 of the Civil Code of the State of California, which section
provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Upon the Effective Date, each of the Settling Defendants shall be
deemed to have, and by operation of the Judgment shall have, irrevocably, fully,
finally, and forever released, relinquished and discharged each and all of the
Representative Plaintiff, the Class Members, and
19
Class Counsel from all Released Claims (including Unknown Claims),
except claims to enforce this Stipulation.
3.2 RELEASE FOR XXXX XXXXXXX
Upon the Effective Date, the Representative Plaintiff and all Class
Members shall release Xxxx Xxxxxxx from claims due to any error, misstatement,
misleading statement, act, omission, neglect, or breach of duty committed or
attempted, or allegedly committed or attempted in his capacity as an Active
Trustee of the Trust or any claims solely by reason of his status as an Active
Trustee of the Trust. However, Xxxx Xxxxxxx shall not be released for any claim
(a) brought about or contributed to by any deliberately fraudulent or
deliberately dishonest act or omission or any willful violation of any statute
or regulation by Xxxx Xxxxxxx if a judgment or other final adjudication adverse
to Xxxx Xxxxxxx establishes such a deliberately fraudulent or deliberately
dishonest act or omission or willful violation; (b) for Xxxx Xxxxxxx gaining in
fact any personal profit, remuneration or advantage to which Xxxx Xxxxxxx was
not legally entitled; (c) brought by or on behalf of the Metretek Persons, or
(d) for actions or conduct taken in any other capacity other than an active
trustee of the Trust.
Notwithstanding anything to the contrary set forth in this Section 3.2,
upon the Effective Date Xxxx Xxxxxxx shall be released from all claims which are
covered by the Insurance Policy.
3.3 LIMITATION ON RELEASE OF BROKERAGE FIRMS
With respect to release of the Brokerage Firms only, the Released
Claims are not intended to include any claims against the Brokerage Firms that
are unique to a particular Class Member. For example, claims that Class Members
may have against the Brokerage Firms with respect to suitability of an
investment in the Trust, or with respect to any other investments or general
investment advice (unrelated to the Trust), services etc. These examples are
illustrative, not
29
exhaustive. This Section 3.3 is not intended to affect, alter or limit
in any way, the release of Released Claims by the Representative Plaintiff and
Class Members against the Metretek Persons.
3.4 CLAIMS AGAINST XXXXXXX
The Settling Parties recognize that both the Class and various Metretek
Defendants are asserting claims against the Xxxxxxx Defendants. Claims Against
Xxxxxxx prosecuted on behalf of the Metretek Defendants shall be considered to
be Metretek Claims and shall be treated as set forth in Section 2.3. Except for
those claims released against the Released Persons and the claims released
against Xxxx Xxxxxxx as set forth in Section 3.2, Class Counsel may, on behalf
of the Class, prosecute any and all other claims including Claims Against
Xxxxxxx. The Class may prosecute such claims (or not prosecute such claims) as
determined by the Representative Plaintiff and Class Counsel in their sole
discretion for any reason, or no reason at all. Neither the Class,
Representative Plaintiff or Class Counsel shall have any duty or obligation to
the Settling Defendants, or any of them, to prosecute any claims. However, if
Class Counsel prosecutes any Claims Against Xxxxxxx, they must also defend any
resulting Contribution Claims. No Claims Against Xxxxxxx shall be settled
without a full, complete and final release of all Metretek Persons. Regardless
of whether or not the Effective Date or Failure Date has occurred, the Net
Recovery from any Claims Against Xxxxxxx prosecuted on behalf of the Class shall
not be paid into the Escrow Account, but shall be paid into the Settlement Fund.
In the event the Effective Date occurs, then a portion of the Net Recovery from
any Claims Against Xxxxxxx prosecuted on behalf of the Class shall be treated as
a Prepayment Amount against Metretek's obligations under the Metretek Note in
the same manner as the Net Recovery from Metretek Claims is treated under
Sections 2.3.4, 2.3.5, 2.3.6 and 2.3.7 above.
21
3.5 PROPORTIONATE CREDIT AND DISCHARGE IN FAVOR OF REMAINING DEFENDANTS
AND SETTLEMENT CONTRIBUTION BAR
The Settling Parties agree and acknowledge that this is a good faith,
non-collusive settlement. With respect to the claims that the Representative
Plaintiff and each of the Class Members have asserted or may assert against any
other Person including, but not limited to, the Xxxxxxx Defendants, related to
the Trust, sale of Trust units, the Xxxxxxx Product, the Xxxxxxx Facility, Amoco
Contract or arising out of the other facts and circumstances giving rise to
Plaintiff's claims set forth in this Litigation, the Representative Plaintiff
and each of the Class Members discharge, credit and fully satisfy against the
total recovery from such Persons, that fraction or percentage of the total claim
or damages which may be determined to have been caused by the Settling
Defendants. The purpose of this credit and discharge is to enable the Settling
Defendants to obtain a dismissal of any claims brought by other persons or
entities for contribution, indemnification or similar claims where the damages
sought by the claiming party are based in whole or in part on the claiming
party's liability, directly or indirectly, to the Representative Plaintiff, the
Class or any Class Member.
The Settling Parties also agree to ask the Court for entry of a
settlement contribution bar order in favor of the Settling Defendants, which bar
will be consistent with the terms of C.R.S. ss. 13-50.5-105 and C.R.S. ss.
11-51-604(13), and which will extinguish any rights, claims or causes of action
by any Remaining Defendants against any of the Settling Defendants and any of
their past, present or future employees, agents, officers, directors,
principals, members, partners, predecessors, successors, heirs, executors,
administrators, trustees, assigns, representatives, attorneys, accountants,
consultants, advisors, parents, insurers, subsidiaries, and related or
affiliated entities, for contribution, indemnification or similar claims where
the damages sought
22
by the claiming party are based in whole or in part on the claiming
party's liability, directly or indirectly, to the Representative Plaintiff, the
Class or any Class Member.
This Stipulation will fail if this contribution bar order is not
included in the Final Judgment and Order. However, Metretek may waive this
condition at any time. Notwithstanding anything to the contrary set forth
herein, in the event that the Stipulation fails as a result of the Court's
failure to include the requested contribution bar order in the Final Judgment
and Order, and if Metretek fails to waive this condition in writing within 5
business days after the date the Judgment is entered by the Court, then Metretek
agrees to pay $200,000 into the Court within 60 days for the benefit of the
Class. Metretek shall have the right, in its sole discretion, but not the
obligation to appeal any decision adverse to the Settling Defendants regarding
the contribution bar. However, such an appeal shall not extend the period of
time Metretek has to decide whether or not to waive this condition or pay the
$200,000. In the event, Metretek does not waive the condition and pays the
$200,000 such money shall never be refundable to Metretek even if Metretek later
prevails on appeal.
If this contribution bar order is included in the Final Judgment, any
appeal from such order or reversal or modification thereof, shall not operate to
terminate or cancel this Stipulation or affect or delay the finality of the
Final Judgment and Order approving this Stipulation and the Settlement.
3.6 Upon execution of this Stipulation, the Representative Plaintiff
agrees to withdraw his Motion for Partial Summary Judgment as to Liability for
Claims II and III and his Interrogatories, Requests for Production and Requests
for Admission as to the Metretek Defendants. Class Counsel shall make whatever
filings are necessary to advise the Court that the motion and discovery requests
have been withdrawn.
23
4. ADMINISTRATION OF THE SETTLEMENT AND SETTLEMENT FUND
4.1 Class Counsel, or their authorized agents, acting on behalf of the
Class, and subject to the supervision, direction and approval of the Court,
shall monitor the calculation of distributions of that portion of the Settlement
Fund that is finally awarded by the Court to the Class Members. Metretek shall
at least twenty (20) days prior to making any distribution of any money in the
Settlement Fund provide to Class Counsel a schedule of proposed distributions.
4.2 The Settlement Fund shall be held in a segregated account for the
benefit of the beneficiaries of the Settlement Fund maintained at a National
Bank authorized to do business in the State of Colorado with capital and surplus
of at least $500,000,000. The funds in this account will be held in an interest
bearing account at the bank at a commercially reasonable rate or invested in
United States government securities. Metretek shall act as trustee of the
account, but this account must be separate and apart from the accounts of the
Settling Defendants and will be the property of the beneficiaries of the
Settlement Fund and not the Settling Defendants and will not be subject to the
claims of creditors of the Settling Defendants.
Metretek's responsibilities as trustee shall be limited to those
responsibilities articulated in this Stipulation. Metretek shall not be liable
for any error of judgment or for any actions taken or omitted by Metretek or any
other Person in connection with the performance of its duties and obligations
with respect to the Settlement Fund, except in the case of its own willful
misconduct, bad faith or fraud. Metretek's duties and responsibilities in
connection with the administration of the Settlement Fund shall be purely
ministerial and shall be limited to those expressly set forth herein. Metretek
shall not in such capacity be deemed to be acting as a principal, participant or
beneficiary of and shall have no liability or responsibility for any actions or
omissions of the National Bank holding such funds.
24
4.3 The Settlement Fund shall be used to pay the entire amount of any
fees and costs awarded by the Court to Class Counsel and the remainder shall be
divided among Class Members so that each Class Member receives the percentage of
the Settlement Fund equal to the amount invested in Trust Units by such
individual Class Member divided by the total amount invested in Trust Units by
all Class Members. Unless otherwise agreed to by Class Counsel, the Settlement
Fund shall make distributions to beneficiaries within 5 business days of the
receipt of the $2.75 Million Payment, any installment paid under the Metretek
Note or the receipt of any proceeds from prosecution of the Metretek Claims or
Claims Against Xxxxxxx, provided that in the event the amount of the Net
Proceeds from claims is less than $200,000 then such amount may be paid with the
next installment under the Metretek Note.
4.4 The Parties agree to treat the Settlement Fund as being at all
times a "qualified settlement fund" within the meaning of Treasury Regulation
ss. 1.468B-1. For the purpose of ss. 468B of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder including Treasury
Regulation ss. 1.468B-2(k)(3), the "administrator" shall be Metretek. Metretek
shall timely and properly file all informational and other tax returns necessary
or advisable with respect to the Settlement Fund (including without limitation
the returns described in Treasury Regulation ss. l.468B-2(k)). Metretek shall
also timely make such elections as necessary or advisable to carry out the
provisions of this Stipulation. Such elections shall be made in compliance with
the procedures and requirements contained in such regulations. It shall be the
responsibility of Metretek to timely and properly prepare and deliver the
necessary documentation for signature by all necessary parties, and thereafter
to cause the appropriate filing to occur.
25
4.5 Metretek agrees that it will pay the costs of printing and mailing
of the Notice. All costs associated with administration of the Settlement Fund,
including, but not limited to, taxes, preparation of tax returns, payment of
bank fees, and audit fees, shall be borne exclusively by the Settlement Fund.
Class Counsel shall be notified of any costs in excess of $1,000 and shall the
right to veto any such costs if in their sole opinion they deem such costs to be
excessive or unreasonable.
5. NOTICE ORDER AND SETTLEMENT HEARING
5.1 In sufficient time for the preliminary approval hearing to be set
as soon as practicable (the "Preliminary Approval Hearing"), the Settling
Parties shall submit the Stipulation together with its Exhibits to the Court and
shall jointly apply for entry of an order (the "Preliminary Approval Order"),
requesting the preliminary approval of the settlement set forth in the
Stipulation, and approval for the mailing of a settlement notice to be drafted
by Class Counsel which shall include the general terms of the settlement set
forth in the Stipulation, the general terms of the Fee and Expense Application
and the date of the Settlement Hearing. The Settling Parties shall submit a
proposed Notice and Preliminary Approval Order prior to the Preliminary Approval
Hearing.
5.2 The Metretek Defendants shall request that the Court enter an order
and judgment deciding the Interpleader Action prior to or at the time of the
Preliminary Approval Hearing. Class Counsel agrees to cooperate with the
Metretek Defendants in expediting the Interpleader Action. The Metretek
Defendants shall have the right, in their sole discretion, but not the
obligation, to appeal any decision adverse to them in the Interpleader Action.
5.3 The Settling Parties shall request that, after notice is given, the
Court hold the Settlement Hearing and finally approve this settlement as set
forth herein. At the Settlement Hearing, the Class Counsel also will request
that the Court approve the fee and expense application.
26
5.4 The Preliminary Approval Order shall specifically include
provisions that, among other things, will:
(a) Preliminarily approve the Stipulation and the settlement set forth
herein as meeting the standards for preliminary approval and being in good faith
and non-collusive;
(b) Approve the form of Notice of Settlement of Class Action ("Notice")
reflecting the agreement set forth in this Stipulation for mailing to members of
the Class;
(c) Schedule a hearing (the "Settlement Hearing") to be held by the
Court as soon as practicable from the date of the Preliminary Approval Order to
consider and determine whether (i) the proposed settlement of the Litigation
against the Settling Defendants as contained in the Stipulation should be
approved as fair, adequate, and reasonable, and in good faith and non-collusive;
and (ii) the Judgment approving the settlement should be entered;
(c) Provide that at the Settlement Hearing, the Court shall determine
and enter an order regarding whether and in what amount attorneys' fees and
reimbursement of expenses should be awarded to the Class Counsel;
(e) Provide that pending final determination of whether the settlement
contained in the Stipulation should be approved as required in Section 6,
neither the Representative Plaintiff, nor any Class Member, either directly,
representatively, derivatively or in any other capacity shall commence or
prosecute any action or proceeding in any court or tribunal asserting any of the
Released Claims against the Released Persons;
(f) Provide that any objections to (i) the proposed settlement
contained in the Stipulation; (ii) entry of the Judgment approving the
Settlement; or (iii) the Class Counsels' Fee and Expense Application, shall be
heard and any papers submitted in support of said objections shall be received
and considered by the Court at the Settlement Hearing only if, on or before a
date to be
27
specified in the Notice Order, Persons making objections shall file
and serve on all parties notice of their intention to appear (which shall set
forth each objection and the basis therefore) and copies of any papers in
support of their position as set forth in the Notice Order;
(g) Provide that, upon the occurrence of the Effective Date, all Class
Members shall be permanently enjoined and barred from asserting any Released
Claims against any of the Released Persons and any such Class Member shall
conclusively be deemed to have released any and all such Released Claims as
against all of the Released Persons; and
(h) Provide that the Settlement Hearing may, from time to time and
without further notice to the Class, be continued or adjourned by Order of the
Court.
5.5 Promptly upon entry of the Preliminary Approval Order, and as
provided for therein, Metretek will send copies of the Notice by first-class
mail, postage prepaid, to the members of the Class at their last known addresses
as appearing in the records maintained by the Trust. Metretek will undertake
reasonable efforts to update where possible any address where a Notice is
returned as undeliverable. Metretek shall file an affidavit of mailing with the
Court prior to the Settlement Hearing stating that the Notice was duly made upon
all members of the Settlement Class in accordance with the Preliminary Approval
Order.
6. ENTRY OF FINAL JUDGMENT AND ORDER
At or prior to the Settlement Hearing, counsel for the Parties to this
Stipulation shall jointly submit to the Court a proposed Final Judgment and
Order providing as follows:
- Finding that the Stipulation and the transactions contemplated thereby
are fair, adequate, and reasonable, and are in good faith and
non-collusive; directing consummation of the Settlement in accordance
with the terms and conditions of the Stipulation;
- Dismissing each and every cause of action and claim set forth in the
Complaint on the merits as to all Settling Defendants and with prejudice
as to all Class Members,
28
extinguishing all claims, rights, demands and causes of action that have
been or might have been asserted therein and discharging the Settling
Defendants therefrom;
- Provide that pending the occurrence of the Effective Date, neither the
Representative Plaintiff, nor any Class Member, either directly,
representatively, derivatively or in any other capacity shall commence or
prosecute any action or proceeding in any court or tribunal asserting any
of the Released Claims against the Released Persons;
- Permanently barring the Representative Plaintiff and Class Members, as
well as their predecessors, successors and assigns, upon the occurrence
of the Effective Date, from asserting the Released Claims against the
Released Persons, and releasing the Released Persons from the Released
Claims;
- Ordering entry of a settlement contribution bar in favor of the Settling
Defendants as provided in Section 3.5;
- Reserving jurisdiction in the Court over all matters relating to the
administration and consummation of this Stipulation and the Settlement
provided for herein;
- Designating and approving Metretek as the "administrator" of the
Settlement Fund as such term is used in Treasury
Regulation ss.1.468B-2(k)(3); and
- Ordering and approving the establishment and funding of the Settlement
Fund as provided in Treasury Regulation ss.1.468B-1(c)(1).
7. ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES
7.1 No fees or reimbursements shall be sought by the Settling Parties
against each other. Each side agrees to bear its own attorneys' fees, costs and
expenses.
7.2 Class Counsel may submit an application or applications for: (i) an
award of attorneys' fees; plus (ii) reimbursement of all expenses and costs, to
be paid from the Settlement Fund, as may be awarded by the Court.
29
7.3 The attorneys' fees, expenses and costs, including the fees of
experts and consultants, as awarded by the Court, shall be paid as set forth by
the Court in the award and such funds shall be transferred to Lead Counsel from
the Settlement Fund, within the later of (a) three (3) business days after the
Court executes an order awarding such fees and expenses and (b) the
establishment of the Settlement Fund.
7.4 The Settling Defendants agree to take no position on the issue of
attorneys' fees and reimbursement of expenses by Class Members out of the
Settlement Fund.
7.5 The procedure for, and the allowance or disallowance by the Court
of, any application(s) by Class Counsel for an award of attorneys' fees and/or
reimbursement of reasonable expenses are not a part of the Settlement set forth
in this Stipulation and are to be considered by the Court separately from the
Court's consideration of the fairness, justness, reasonableness, adequacy, good
faith and non-collusiveness of the Settlement, and any order or proceeding
relating to any such fee and/or expense application or procedure, or any appeal
from any order relating thereto or reversal or modification thereof, shall not
operate to terminate or cancel this Stipulation or affect or delay the finality
of the Final Judgment and Order approving this Stipulation and the Settlement.
8. CONDITIONS OF SETTLEMENT, EFFECT OF DISAPPROVAL, CANCELLATION OR TERMINATION
8.1 The Effective Date of the Stipulation shall be conditioned on the
occurrence of all of the following events:
(a) The Court has entered a judgment in the Interpleader Action in
favor of the Metretek Defendants and the judgment has become Final;
(b) Gulf has paid to Metretek or into the Settlement Fund, whether
directly, through the Interpleader Account, through the Escrow Account or
otherwise, the sum of at least $2,375,000
30
in Insurance Proceeds from the Insurance Policy on behalf of the Settling
Defendants, which Insurance Proceeds shall not be subject to any further claims
by any other Person, provided, however, that Metretek shall have the right, in
its sole discretion, but not the obligation to waive such condition if Gulf pays
a lesser amount of proceeds from the Insurance Policy on behalf of the Settling
Defendants that Metretek, in its sole discretion, deems acceptable;
(c) The Court has entered the Preliminary Approval Order, as required
above;
(d) The Court has entered the Final Judgment and Order, as required
above; and
(e) The Final Judgment and Order has become Final.
8.2 If all of the conditions specified herein are not met, then the
Stipulation shall be canceled and terminated unless Class Counsel and counsel
for Settling Defendants mutually agree in writing to proceed with the
Stipulation.
8.3 In the event that this Stipulation is terminated pursuant to the
terms herein, the following shall occur:
- all parties shall stand in the same position, without prejudice, as if
this Stipulation had not been made and submitted to the Court for its
consideration and approval;
- neither this Stipulation, nor the Preliminary Approval Order, nor the
Final Judgment and Order, nor any documents or oral representations
relating to any of the foregoing, shall be offered as evidence relating
to the merits or legal sufficiency of the allegations in the Class
Action; and
- no right, claim, obligation, liability, or defense of any person
affected by the termination shall arise from or be affected by the
negotiation or execution of this Stipulation.
- in the event termination is due to the failure of the Court to include
the contribution bar order in the Final Judgment and Order as set forth
in Section 3.5 and Metretek's failure to waive this condition in writing
within 5 business days after the date the Judgment is
31
entered by the Court, then Metretek shall pay the sum of $200,000 into
the Court within 60 days for the benefit of the Class.
9. MISCELLANEOUS PROVISIONS
9.1 The Settling Parties (a) acknowledge that it is their intent to
consummate the terms and conditions, and the transactions and actions
contemplated by the Stipulation; and (b) agree to cooperate to the extent
necessary to effectuate and implement all terms and conditions of the
Stipulation and to exercise their best efforts to accomplish the foregoing terms
and conditions of the Stipulation.
9.2 Settling Parties agree that the terms of the Settlement reflect a
good faith Settlement of Representative Plaintiff's and the Class' claims,
reached voluntarily after consultation with experienced legal counsel. The
Stipulation and Settlement may be used in such proceedings as may be necessary
to consummate or enforce the Stipulation, the Settlement or the Judgment, and
Settling Defendants may file the Stipulation and/or the Judgment in any action
that may be brought against them in order to support a defense or counterclaim
based on principles of res judicata, collateral estoppel, release, good faith
settlement, judgment bar or reduction or any other theory of claim preclusion or
issue preclusion or similar defense or counterclaim.
9.3 All of the Exhibits to the Stipulation are material and integral
parts hereof and are fully incorporated herein by this reference.
9.4 The Stipulation may be amended or modified only by a written
instrument signed by or on behalf of all Settling Parties or their
successors-in-interest.
9.5 The Stipulation and the Exhibits attached hereto constitute the
entire agreement among the parties hereto and no representations, warranties or
inducements have been made to any party concerning the Stipulation or its
Exhibits other than the representations, warranties and
32
covenants contained and memorialized in such documents. Except as otherwise
provided herein, each party shall bear its own costs.
9.6 Each counsel or other Person executing the Stipulation or any of
its Exhibits on behalf of any party hereto hereby warrants that such person has
the full authority to do so.
9.7 The Stipulation may be executed in one or more counterparts. All
executed counterparts and each of them shall be deemed to be one and the same
instrument. Counsel for the parties to the Stipulation shall exchange among
themselves original signed counterparts and a complete set of original executed
counterparts shall be filed with the Court.
9.8 The Stipulation shall be binding upon, and inure to the benefit of,
the successors and assigns of the parties hereto.
9.9 The Court shall retain jurisdiction with respect to implementation
and enforcement of the terms of the Stipulation, and all parties hereto submit
to the jurisdiction of the Court for purposes of implementing and enforcing the
settlement embodied in the Stipulation.
9.10 The undersigned agree that no single Party shall be deemed to have
drafted this Stipulation or any portion thereof. This Stipulation is the product
of the collaborative effort of the undersigned counsel.
9.11 The Stipulation and the Exhibits hereto shall be considered to
have been negotiated, executed and delivered, and to be wholly performed, in the
State of Colorado, and the rights and obligations of the parties to the
Stipulation shall be construed and enforced in accordance with, and governed by,
the internal, substantive laws of the State of Colorado without giving effect to
that State's choice of law principles.
33
9.12 The captions contained in this Stipulation are inserted only as a
matter of convenience and in no way define, limit, extend, or describe the scope
of this Stipulation or the intent of its provisions.
9.13 This Stipulation of Settlement is a compromise disposition of
controverted claims. No consideration for this Stipulation, and nothing
contained in this Stipulation shall be construed as an admission of any
liability or any lack of merit to the claims asserted by or on behalf of any of
the Settling Parties or their attorneys.
34
IN WITNESS WHEREOF, the parties hereto have caused the Stipulation to
be executed, by their duly authorized attorneys, as of March 26, 2003.
ATTORNEYS FOR CLASS ATTORNEYS FOR METRETEK
DEFENDANTS
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------- ---------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Georgia Bar No. 005920 Reg. No. 5203
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxxx
Georgia Bar No. 242825 Reg. No. 23202
Law Offices of Xxxxxxx X. Xxxxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxxxx
& Xxxxxx, LLC
0000 Xxxxxxxx Xxxx, Xxxxx 000 0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000 Xxxxxx, Xxxxxxxx 00000
(000) 000-0000 (000) 000-0000
(000) 000-0000 fax (000) 000-0000 fax
xxxxxxxxxx@xxxxx.xxx
Xxxxxx X. Xxxxxxx
Georgia Bar No. 564400
Xxxxxxx & Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
Xxxxx xxx Xxxxxx
Xxx. Xx. 00000
Xxxxxx, Xxxxxx, Xxxxx & Xxxxxxxx, X.X.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
(000) 000-0000 fax
Xxxx@xxxxxxx.xxx
35
EXHIBIT A
NON-NEGOTIABLE PROMISSORY NOTE
$3,000,000 Denver, Colorado
_________, 2003
For value received, the undersigned, METRETEK TECHNOLOGIES, INC., a
Delaware corporation (the "Maker"), hereby promises to [THE XXXXX SETTLEMENT
FUND] (the "Fund"), at __________________, or at any other place designated at
any time by the holder hereof, in lawful money of the United States of America
and in immediately available funds, the principal sum of Three Million Dollars
($3,000,000), together with interest on the principal amount hereunder remaining
unpaid from time to time, computed on the basis of the actual number of days
elapsed and a 360-day year, from the date hereof until this Note is fully paid
at the initial rate of ______ percent (__%) which is the current rate set forth
in the Wall Street Journal as the "prime rate" of interest, plus three percent
(3%). Commencing on January 1, 2004 the interest rate under this Note shall be
adjusted and shall be adjusted annually thereafter to the rate set forth in the
Wall Street Journal at that time as the "prime rate" of interest, plus three
percent (3%). The principal hereof and interest accruing thereon shall be due
and payable as provided below.
This Note is issued pursuant to, and in connection with the settlement
of certain litigation (the "Litigation") as provided in, a Stipulation of
Settlement (the "Stipulation"), dated as of March __, 2003, by and among Xxxxxxx
X. Xxxxx, on behalf of himself and all others similarly situated, and the Maker,
et al. This Note is the "Metretek Note" referred to in the Stipulation. This
Note is an obligation of the Maker, senior to Maker's obligations on the
Subordinated Indebtedness (as defined below), but subordinate to the Guarantor's
obligations on the Senior Lender Indebtedness (as defined in the Guaranty). The
obligations of the Maker under this Note have been guaranteed by the
subsidiaries of the Maker.
The principal sum of this Note shall be due and payable in sixteen (16)
quarterly payments, each consisting of $187,500 repayment of principal plus
accrued and unpaid interest on this Note through the due date of such payment,
commencing on the first day of the month which is six (6) months after the date
hereof, and continuing on the first day of each third month thereafter until
paid in full; provided that the Maker shall have a grace period of fifteen (15)
business days from the due date for making a payment required hereunder. The
Maker's obligations arising under this Note (the "Obligations") shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Note, under all circumstances whatsoever.
The Maker shall have the right to prepay the outstanding principal sum
of this Note, in whole at any time or in part from time to time, without premium
or penalty, and without prior notice. In addition, this Note will be deemed to
have been prepaid, in whole or in part, by certain "Prepayment Amounts" as
provided in the Stipulation.
The obligations of the Maker under that certain Credit and Security
Agreement, dated as of September 24, 2001, as supplemented and amended, by and
between Xxxxx Fargo Business
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Credit, Inc., a Minnesota corporation (the "Lender") and Southern Flow
Companies, Inc., a wholly-owned subsidiary of the Maker, and the loan documents
and instruments related thereto executed by Maker, and under that certain Credit
and Security Agreement, dated as of September 6, 2002, as supplemented and
amended, by and between the Lender and Metretek, Incorporated, a wholly-owned
subsidiary of the Maker, and the loan documents and instruments related thereto
executed by Maker, as well each and every debt, liability and obligation of
every type and description which the Maker may now or at any time hereafter owe
to the Lender, whether such debt, liability or obligation now exists or is
hereafter created or incurred, and whether it is or may be direct or indirect,
due or to become due, absolute or contingent, primary or secondary, liquidated
or unliquidated, or joint, several or joint and several, all interest thereon,
and all fees, costs and other charges related thereto (including all interest,
fees, costs and other charges accruing after the commencement of any case,
proceeding or other action relating to the bankruptcy insolvency or
reorganization of the Maker, whether or not allowed in such proceeding or other
action), all renewals, extensions and modifications thereof and any notes issued
in whole or partial substitution therefore (the "Subordinated Indebtedness") are
hereby expressly subordinated to the payment in full by the Maker to the Fund of
all indebtedness represented by this Note, including all interest hereon, and
all fees, costs and other charges related hereto (including all interest, fees,
costs and other charges accruing after the commencement of any case, proceeding
or other action relating to the bankruptcy insolvency or reorganization of the
Maker, whether or not allowed in such proceeding or other action) (the "Senior
Indebtedness"). In addition, the security interest and lien of the Lender in the
"Metretek Claims" or in the "Prepayment Amounts" (as such terms are defined in
the Stipulation), including all proceeds thereof, is hereby expressly
subordinated to the payment in full to the Fund of the Senior Indebtedness.
Each of the following occurrences shall constitute an event of default
under this Note (herein called "Event of Default"): (a) the Maker shall fail to
pay any or all of the Obligations under this Note within 10 business days of the
due date; (b) the Maker shall fail to observe or perform any material covenant
or agreement herein binding on it, which failure continues for 10 business days
after notice thereof is received by the Maker; (c) the Maker or any "WF
Guarantor" (as such term is defined below) shall be or become insolvent, or
admit in writing its or his inability to pay its or his debts as they mature, or
make an assignment for the benefit of creditors; or the Maker or any WF
Guarantor shall apply for or consent to the appointment of any receiver,
trustee, or similar officer for it or him or for all or any substantial part of
its or his property; or such receiver, trustee or similar officer shall be
appointed without the application or consent of the Maker or such WF Guarantor,
as the case may be; or the Maker or any WF Guarantor shall institute (by
petition, application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it or him under the laws of any jurisdiction; or
any such proceeding shall be instituted (by petition, application or otherwise)
against the Maker or any such WF Guarantor, and such proceeding remains
undismissed and unstayed for a period of 60 days after the commencement thereof;
or any judgment, writ, warrant of attachment or execution or similar process
shall be issued or levied against a substantial part of the property of the
Maker or any WF Guarantor which remains unsatisfied or undischarged and in
effect for a period of 60 days after such issuance or levy without a stay of
enforcement or execution; (d) any default under any bond,
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debenture, note or other evidence of material indebtedness of the Maker or a WF
Guarantor owed to any Person (including but not limited to the Lender) other
than the Fund, or under any indenture or other instrument under which any such
evidence of indebtedness has been issued or by which it is governed, or under
any material lease or other contract, and the expiration of the applicable
period of grace, if any, specified in, or otherwise agreed by all parties to,
such evidence of indebtedness, indenture, other instrument, lease or contract;
provided that to the extent Maker or any Guarantor is contesting any amount owed
to Scient Corporation in respect of any note payable to Scient Corporation,
non-payment of such contested amount shall not be an Event of Default hereunder
so long as such contest continues in good faith or to the extent that such
contest is adjudicated in favor of Maker or such Guarantor; (e) a petition shall
be filed by or against the Maker or any WF Guarantor under the United States
Bankruptcy Code naming the Maker or such WF Guarantor as debtor if such petition
has not been dismissed within 60 days of the filing of such petition against
Maker or such WF Guarantor; or (f) any representation or warranty made by the
Maker in this Note, by any WF Guarantor in any guaranty delivered to the Fund,
or by any of the "Settling Defendants" (as described in the Stipulation) in the
Stipulation shall prove to have been incorrect in any material respect as of the
date of the Stipulation. As used in this Note, the term "WF Guarantor" means
only the following subsidiaries of the Maker: Southern Flow Companies, Inc.,
Metretek, Incorporated and PowerSecure, Inc.
Upon the occurrence of an Event of Default and at any time thereafter
so long as the Event of Default is continuing, the interest rate payable under
the Note shall be automatically increased by 6%. The then existing interest rate
plus 6% shall be the "Default Interest Rate." Notwithstanding the foregoing, no
rate change shall be put into effect which would result in a rate greater than
the highest rate permitted by law. If any payments in the nature of interest,
default interest and other charges made are held to be in excess of the limits
imposed by any applicable usury laws, it is agreed that any such amount held to
be in excess shall be considered payment of principal hereunder, and the
indebtedness evidenced hereby shall be reduced by such amount so that the total
liability for payments in the nature of interest, default interest and other
charges shall not exceed the applicable limits imposed by any applicable usury
laws, in compliance with the desires of the Maker and the Fund. This provision
shall never be superseded or waived and shall control every other provision of
all agreements between the Maker and the Fund.
Upon the occurrence of an Event of Default and at any time thereafter
so long as the Event of Default is continuing, in addition to the automatic
increase in the interest rate to the Default Interest Rate, the Fund may
exercise any one or more of the following rights and remedies: (i) declare all
unmatured Obligations to be immediately due and payable, and the same shall
thereupon be immediately due and payable, without presentment or other notice or
demand; and (ii) exercise or enforce any or all other rights or remedies
available to the Fund by law or agreement against the Maker, the Guarantors or
against any other person or property, provided however, the Fund will not
commence any action or proceeding against any WF Guarantor with respect to the
Obligation, or join with any creditor (unless the Lender shall so join) in
bringing any proceeding against any WF Guarantor under any bankruptcy,
reorganization, readjustment of debt, arrangement of debt receivership,
liquidation or insolvency law or statute of the federal or any state government,
or exercise or enforce any right or remedy available to the Fund with
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respect to the Obligation, unless and until the Subordinated Indebtedness has
been paid in full and the Lender has released its lien in the collateral
securing the Subordinated Indebtedness.
Until all of the Subordinated Indebtedness has been paid in full and
the Lender has released its lien in the collateral securing the Subordinated
Indebtedness, the Fund shall not, except after giving the Lender ten (10)
business days prior written notice thereof (but shall have the right after
giving such notice without the need for the Lender's consent to), demand,
receive or accept any payment (whether of principal, interest or otherwise) from
the Maker in respect of this Note, or exercise any right of or permit any setoff
in respect of this Note, except that the Fund may accept from the Maker
scheduled payments of principal and interest required to be paid under this Note
and prepayments of Prepayment Amounts, so long as no default under the
Subordinated Indebtedness has occurred and is continuing or will occur as a
result of or immediately following any such payment.
If the Fund receives any payment on this Note that the Fund is not
entitled to receive under the provisions of this Note or any Guaranty, the Fund
will hold the amount so received in trust for the Lender and will forthwith turn
over such payment to the Lender in the form received (except for the endorsement
of the Fund where necessary) for application to then-existing Subordinated
Indebtedness (whether or not due), in such manner of application as the Lender
may deem appropriate. If the Fund exercises any right of setoff which the Fund
is not permitted to exercise under the provisions of this Note, the Fund will
promptly pay over to the Lender, in immediately available funds, an amount equal
to the amount of the claims or obligations offset. If the Fund fails to make any
endorsement required under this Note, the Lender, or any of its officers or
employees or agents on behalf of the Lender, is hereby irrevocably appointed as
the attorney-in-fact (which appointment is coupled with an interest) for the
Fund to make such endorsement in the Fund's name.
Presentment or other demand for payment, notice of dishonor and protest
are expressly waived. The Maker shall pay all costs of collection, including
reasonable attorneys' fees and legal expenses if this Note or any installment
due under this Note is not paid when due, whether or not legal proceedings are
commenced.
No failure or delay by the Fund in exercising any right, power or
remedy under the Note or Guarantees shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy under the such documents. The remedies provided in the Note and
Guarantees are cumulative and not exclusive of any remedies provided by law.
The Maker hereby (i) consents to the personal jurisdiction of the state
and federal courts located in the State of Colorado in connection with any
controversy related to this Agreement; (ii) waives any argument that venue in
any such forum is not convenient, (iii) agrees that any litigation initiated by
the Fund or Maker in connection with this Note or the Guarantees may be venued
in either the state or federal courts located in the City and County of Denver,
Colorado; and (iv) agrees that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
B-4
This Note shall be binding upon Maker and inure to the benefit of the
Fund and their respective successors and permitted assigns. Neither this Note
nor any rights or obligations herein may be assigned or transferred by the Maker
or the Fund without the prior written consent of the other.
THE MAKER WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED ON OR PERTAINING TO THIS NOTE.
METRETEK TECHNOLOGIES, INC.
By: ________________________________
Its: _________________________________
B-5
EXHIBIT B
FORM OF GUARANTY BY SUBSIDIARY
This Guaranty, dated as of _______, 2003, is made by ____________, a
Delaware corporation (the "Guarantor"), for the benefit of [the Xxxxx Settlement
Fund] (the "Fund").
Metretek Technologies, Inc. ("Maker"), a Delaware corporation and the
corporate parent of Guarantor, has executed and delivered to the Fund an
unsecured Non-Negotiable Promissory Note (the "Note"), of even date herewith, in
the principal amount of Three Million Dollars ($3,000,000), in connection with
and pursuant to the settlement of certain litigation (the "Litigation") as
provided in a Stipulation of Settlement (the "Stipulation"), dated as of March
__, 2003, by and among Xxxxxxx X. Xxxxx, on behalf of himself and all others
similarly situated, and the Maker, et al.
As a condition to entering into such Stipulation of Settlement,
pursuant to which a portion of the settlement payment is represented by the
Note, the Fund has required the execution and delivery of this Guaranty.
ACCORDINGLY, the Guarantor, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agrees as follows:
1. Definitions. All terms defined in the Stipulation that are not
otherwise defined herein shall have the meanings given them in the Stipulation.
2. Indebtedness Guaranteed. The Guarantor hereby absolutely and
unconditionally guarantees to the Fund the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
indebtedness of the Maker under the Note (the "Indebtedness").
3. Guarantor's Representations and Warranties. The Guarantor
represents and warrants to the Fund that (i) the Guarantor is a corporation,
duly organized and existing in good standing and has full power and authority to
make and deliver this Guaranty; (ii) the execution, delivery and performance of
this Guaranty by the Guarantor have been duly authorized by all necessary action
of its directors and stockholders and do not and will not violate the provisions
of, or constitute a default under, any presently applicable law or its
constituent documents or any agreement presently binding on it; (iii) this
Guaranty has been duly executed and delivered by the authorized officers of the
Guarantor and constitutes its lawful, binding and legally enforceable
obligation; and (iv) the authorization, execution, delivery and performance of
this Guaranty do not require notification to, registration with, or consent or
approval by, any federal, state or local regulatory body or administrative
agency. The Guarantor represents and warrants to the Fund that the Guarantor has
a direct and substantial economic interest in the Maker and expects to derive
substantial benefits therefrom and from the settlement of the Litigation against
Maker pursuant to the terms of the Stipulation which settlement resulted in the
creation of the Indebtedness guarantied hereby, and that this Guaranty is given
for a corporate purpose. The Guarantor agrees to rely exclusively on the right
to revoke this Guaranty prospectively as to future transactions, in accordance
with paragraph 4, if at
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any time, in the opinion of the directors or officers, the benefits then being
received by the Guarantor in connection with this Guaranty are not sufficient to
warrant the continuance of this Guaranty as to the future Indebtedness of the
Maker. Accordingly, so long as this Guaranty is not revoked prospectively in
accordance with paragraph 4, the Fund may rely conclusively on a continuing
warranty, hereby made, that the Guarantor continues to be benefited by this
Guaranty and the Fund shall have no duty to inquire into or confirm the receipt
of any such benefits, and this Guaranty shall be effective and enforceable by
the Fund without regard to the receipt, nature or value of any such benefits.
4. Unconditional Nature. No act or thing need occur to establish
the Guarantor's liability hereunder, and no act or thing, except full payment
and discharge of all of the Indebtedness, shall in any way exonerate the
Guarantor hereunder or modify, reduce, limit or release the Guarantor's
liability hereunder. This is an absolute, unconditional and continuing guaranty
of payment of the Indebtedness and shall continue to be in force and be binding
upon the Guarantor, whether or not all of the Indebtedness is paid in full.
Notwithstanding the foregoing, this Guaranty shall terminate upon the
satisfaction in full of the Indebtedness.
5. Dissolution or Insolvency of Guarantor. The dissolution or
adjudication of bankruptcy of the Guarantor shall not revoke this Guaranty,
except upon actual receipt of written notice thereof by the Fund and only
prospectively, as to future transactions, as herein set forth. [If the Guarantor
shall be dissolved or shall be or become insolvent (however defined), then the
Fund shall have the right to declare immediately due and payable, and the
Guarantor will forthwith pay to the Fund, subject to the provisions of paragraph
14 below, the full amount of all of the Indebtedness whether due and payable or
unmatured. If the Guarantor voluntarily commences or there is commenced
involuntarily against the Guarantor a case under the United States Bankruptcy
Code, the full amount of all Indebtedness, whether due and payable or unmatured,
shall be immediately due and payable without demand or notice thereof.] [THE
BRACKETED LANGUAGE SHALL ONLY BE INCLUDED IN GUARANTEES BY "WF GUARANTORS" (AS
DEFINED IN THE NOTE)]
6. Enforcement Expenses. The Guarantor will pay or reimburse the
Fund for all reasonable costs, expenses and attorneys' fees paid or incurred by
the Fund in endeavoring to collect and enforce the Indebtedness and enforcing
this Guaranty after an "Event of Default" shall have occurred under the Note
(the "Enforcement Expenses"), subject to the provisions of Section 13 below.
7. Fund's Rights. The Fund shall not be obligated by reason of
its acceptance of this Guaranty to engage in any transactions with or for the
Maker. Whether or not any existing relationship between the Guarantor and the
Maker has been changed or ended and whether or not this Guaranty has been
revoked, the Fund may enter into transactions resulting in the creation or
continuance of the Indebtedness and may otherwise agree, consent to or suffer
the creation or continuance of any of the Indebtedness, without any consent or
approval by the Guarantor and without any prior or subsequent notice to the
Guarantor. The Guarantor's liability shall not be affected or impaired by any of
the following acts or things (which the Fund is expressly authorized to do, omit
or suffer from time to time, both before and after revocation of this Guaranty,
without consent or approval by or notice to the Guarantor): (i) any acceptance
of collateral security, guarantors, accommodation parties or sureties for any or
all of the Indebtedness; (ii) one or more extensions or renewals of the
Indebtedness (whether or not for longer than the original period) or
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any modification of the interest rates, maturities, if any, or other contractual
terms applicable to any of the Indebtedness or any amendment or modification of
any of the terms or provisions of any loan agreement or other agreement under
which the Indebtedness or any part thereof arose; (iii) any waiver or indulgence
granted to the Maker, any delay or lack of diligence in the enforcement of the
Indebtedness or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any of the Indebtedness; (iv) any full or
partial release of, compromise or settlement with, or agreement not to xxx, the
Maker or any guarantor or other person liable in respect of any of the
Indebtedness; (v) any release, surrender, cancellation or other discharge of any
evidence of the Indebtedness or the acceptance of any instrument in renewal or
substitution therefor; (vi) any failure to obtain collateral security (including
rights of setoff) for the Indebtedness, or to see to the proper or sufficient
creation and perfection thereof, or to establish the priority thereof, or to
preserve, protect, insure, care for, exercise or enforce any collateral
security; or any modification, alteration, substitution, exchange, surrender,
cancellation, termination, release or other change, impairment, limitation, loss
or discharge of any collateral security; (vii) any collection, sale, lease or
disposition of, or any other foreclosure or enforcement of or realization on,
any collateral security; (viii) any assignment, pledge or other transfer of any
of the Indebtedness or any evidence thereof; (ix) any manner, order or method of
application of any payments or credits upon the Indebtedness; and (x) any
election by the Fund under Section 1111(b) of the United States Bankruptcy Code.
The Guarantor waives any and all defenses and discharges available to a surety,
guarantor or accommodation co-obligor.
8. Waivers by Guarantor. The Guarantor waives any and all
defenses, claims, setoffs and discharges of the Maker, or any other obligor,
pertaining to the Indebtedness, except the defense of discharge by payment in
full. Without limiting the generality of the foregoing, the Guarantor will not
assert, plead or enforce against the Fund any defense of waiver, release,
discharge or disallowance in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality or unenforceability which may be available to the Maker or any other
person liable in respect of any of the Indebtedness, or any setoff available
against the Fund to the Maker or any other such person, whether or not on
account of a related transaction. The Guarantor expressly agrees that the
Guarantor shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the Indebtedness,
whether or not the liability of the Maker or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The liability
of the Guarantor shall not be affected or impaired by any voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or other similar
event or proceeding affecting, the Maker or any of its assets. The Guarantor
will not assert, plead or enforce against the Fund any claim, defense or setoff
available to the Guarantor against the Maker. The Guarantor waives presentment,
demand for payment, notice of dishonor or nonpayment and protest of any
instrument evidencing the Indebtedness. The Fund shall not be required first to
resort for payment of the Indebtedness to the Maker or other persons, or their
properties, or first to enforce, realize upon or exhaust any collateral security
for the Indebtedness, before enforcing this Guaranty.
9. If Payments Set Aside, etc. If any payment applied by the Fund
to the Indebtedness is thereafter set aside, recovered, rescinded or required to
be returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of the Maker or any other obligor),
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the Indebtedness to which such payment was applied shall for the purpose of this
Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Indebtedness as
fully as if such application had never been made.
10. Additional Obligation of Guarantor. The Guarantor's liability
under this Guaranty is in addition to and shall be cumulative with all other
liabilities of the Guarantor to the Fund as guarantor, surety, endorser,
accommodation co-obligor or otherwise of any of the Indebtedness or obligation
of the Maker, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
11. No Duties Owed by Fund. The Guarantor acknowledges and agrees
that the Fund (i) has not made any representations or warranties with respect
to, (ii) does not assume any responsibility to the Guarantor for, and (iii) has
no duty to provide information to the Guarantor regarding, the enforceability of
any of the Indebtedness or the financial condition of the Maker or any
guarantor. The Guarantor has independently determined the creditworthiness of
the Maker and the enforceability of the Indebtedness and until the Indebtedness
is paid in full will independently and without reliance on the Fund continue to
make such determinations.
12. Miscellaneous. This Guaranty shall be effective upon delivery
to the Fund, without further act, condition or acceptance by the Fund, shall be
binding upon the Guarantor and the successors and assigns of the Guarantor and
shall inure to the benefit of the Fund and its participants, successors and
assigns. Any invalidity or unenforceability of any provision or application of
this Guaranty shall not affect other lawful provisions and application thereof,
and to this end the provisions of this Guaranty are declared to be severable.
This Guaranty may not be waived, modified, amended, terminated, released or
otherwise changed except by a writing signed by the Guarantor and the Fund. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of Colorado. The Guarantor hereby
(i) consents to the personal jurisdiction of the state and federal courts
located in the State of Colorado in connection with any controversy related to
this Guaranty; (ii) waives any argument that venue in any such forum is not
convenient, (iii) agrees that any litigation initiated by the Fund or the
Guarantor in connection with this Guaranty may be venued in either the state or
federal courts located in the City and County of Denver, Colorado; and (iv)
agrees that a final judgment in any such suit, action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law.
13. Subordination. The obligations of the Guarantor with respect
to the payment of all indebtedness represented by the Note and this Guaranty
(the "Subordinated Indebtedness") is hereby expressly subordinated to the
payment in full to Xxxxx Fargo Business Credit, Inc., a Minnesota corporation
(the "Senior Lender"), of the obligations of the Guarantor under that certain
Credit and Security Agreement, dated as of September 24, 2001, as supplemented
and amended, by and between the Senior Lender and Southern Flow Companies, Inc.,
and the loan documents and instruments related thereto executed by the
Guarantor, and under that certain Credit and Security Agreement, dated as of
September 6, 2002, as supplemented and amended, by and between the Senior Lender
and Metretek, Incorporated, and the loan documents and instruments related
thereto executed by the Guarantor, as well each and every debt, liability and
obligation of every type and description which the Guarantor may now or at any
time hereafter owe to the Senior Lender, whether such debt, liability or
obligation now exists or is hereafter created or incurred, and whether
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it is or may be direct or indirect, due or to become due, absolute or
contingent, primary or secondary, liquidated or unliquidated, or joint, several
or joint and several, all interest thereon, and all fees, costs and other
charges related thereto (including all interest, fees, costs and other charges
accruing after the commencement of any case, proceeding or other action relating
to the bankruptcy insolvency or reorganization of the Guarantor, whether or not
allowed in such proceeding or other action), all renewals, extensions and
modifications thereof and any notes issued in whole or partial substitution
therefore (the "Senior Lender Indebtedness"), provided that the amount of Senior
Lender Indebtedness shall not exceed $3,260,000 in the aggregate. In addition,
the Senior Lender shall hold a first priority security interest and lien in all
collateral now or hereafter securing payment of the Senior Lender Indebtedness,
including all proceeds thereof (the "Collateral"), and any lien claimed therein
by the Fund shall be and remain fully subordinate for all purposes to the lien
of the Senior Lender for all purposes whatsoever. The Subordinated Indebtedness
shall continue to be subordinated to the Senior Lender Indebtedness even if the
Senior Lender Indebtedness is subordinated, avoided or disallowed under the
United States Bankruptcy Code or other applicable law.
14. Payments. Until all of the Senior Lender Indebtedness has
been paid in full and the Senior Lender has released its lien in the Collateral,
the Fund shall not, without the Senior Lender's prior written consent, demand,
receive or accept any payment (whether of principal, interest or otherwise) from
the Guarantor in respect of this Guaranty, or exercise any right of or permit
any setoff in respect of the Guaranty. [THE FOREGOING PROVISION ONLY APPLIES IN
THE GUARANTEES BY THE WF GUARANTORS. THE FOLLOWING PROVISION SHALL BE INCLUDED
IN ALL OTHER GUARANTEES: Until all of the Senior Lender Indebtedness has been
paid in full and the Senior Lender has released its lien in the Collateral, the
Fund shall not, except after giving ten (10) business days prior written notice
to the Senior Lender, (but shall have the right after giving such notice without
the need for the Senior Lender's consent to), demand, receive or accept any
payment (whether of principal, interest or otherwise) from the Guarantor in
respect of this Guaranty, or exercise any right of or permit any setoff in
respect of the Guaranty.]
15. Receipt of Prohibited Payments. If the Fund receives any
payment on the Note that the Fund is not entitled to receive under the
provisions of this Guaranty, the Fund will hold the amount so received in trust
for the Senior Lender and will forthwith turn over such payment to the Senior
Lender in the form received (except for the endorsement of the Fund where
necessary) for application to then-existing Senior Lender Indebtedness (whether
or not due), in such manner of application as the Senior Lender may deem
appropriate. If the Fund exercises any right of setoff which the Fund is not
permitted to exercise under the provisions of this Guaranty, the Fund will
promptly pay over to the Senior Lender, in immediately available funds, an
amount equal to the amount of the claims or obligations offset. If the Fund
fails to make any endorsement required under this Guaranty, the Senior Lender,
or any of its officers or employees or agents on behalf of the Senior Lender, is
hereby irrevocably appointed as the attorney-in-fact (which appointment is
coupled with an interest) for the Fund to make such endorsement in the Fund's
name.
THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON OR PERTAINING TO
THIS GUARANTY.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the
Guarantor the date first written above.
[NAME OF GUARANTOR SUBSIDIARY]
By:
--------------------------------------
Its:
------------------------------------
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ___
day of ______________, 2003, by [name of individual], the [title] of
[Guarantor], a Delaware corporation, on behalf of the corporation.
------------------------------------------
Notary Public
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