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EXHIBIT 1
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AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of December 9, 1999, is made and entered into by and between Metretek
Technologies, Inc. (formerly known as Xxxxxx Natural Gas Services, Inc.), a
Delaware corporation (the "Company"), and American Securities Transfer & Trust,
Inc. (formerly known as American Securities Transfer, Inc.) (the "Rights
Agent").
W I T N E S S E T H
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WHEREAS, the Company and the Rights Agent have previously entered into
that certain Rights Agreement, dated as of December 2, 1991, amended March 23,
1998 (as so amended, the "Rights Agreement"); and
WHEREAS, the Board of Directors of the Company has authorized and
approved a Securities Purchase Agreement (the "Securities Purchase Agreement")
by and among the Company and certain purchasers ("Unit Purchasers"), providing
for, among other things, the issuance by the Company to the Unit Purchasers of
up to 6,000 Units, each Unit consisting of 200 shares of Common Stock, par value
$.01 per share ("Common Stock"), 1 share of Series B Preferred Stock, par value
$.01 per share, which is convertible into Common Stock, and a warrant to
purchase 100 shares of Common Stock; and
WHEREAS, the Board of Directors of the Company has determined that the
Securities Purchase Agreement and the transactions contemplated thereby are
advisable and in the best interests of the Company and its stockholders; and
WHEREAS, the willingness of the Unit Purchasers to enter into the
Securities Purchase Agreement is conditioned upon, among other things, the
amendment of the Rights Agreement on the terms set forth herein; and
WHEREAS, no "Distribution Date", "Shares Acquisition Date", "Redemption
Date" or "Final Expiration Date" (as such terms are defined in the Rights
Agreement) has occurred; and
WHEREAS, Section 27 of the Rights Agreement provides that, among other
things, subject to the restrictions set forth in such Section, the Company may,
by resolution adopted by its Board of Directors, supplement or amend any
provisions of the Rights Agreement without the approval of any holders of
certificates representing rights under the Rights Agreement and, in the event of
such amendment, the Company shall, and the Rights Agent shall, if the Company so
directs, sign a writing evidencing any such supplement or amendment; and
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WHEREAS, the Board of Directors of the Company has adopted a resolution
determining that the amendment of the Rights Agreement on the terms set forth
herein is advisable and in the best interests of the Company and its
stockholders;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in the Rights Agreement and in this Amendment, the parties
hereto agree as follows:
1. Amendments to Section 1.
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1.1 The first sentence of Section 1(a) of the Rights Agreement is
hereby amended to read in its entirety as follows:
"'Acquiring Person' shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined)
of 15% or more of the Common Shares then outstanding, but shall not
include (i) the Company; (ii) any wholly-owned subsidiary (as such
term is hereinafter defined) of the Company; or (iii) any employee
benefit plan of the Company or any subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any
such plan."
1.2 Section 1(a) of the Rights Agreement is hereby further amended
by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, neither
a Unit Purchaser nor any of its Affiliates or Associates shall be,
become or be deemed to be an "Acquiring Person" (and no Shares
Acquisition Date shall occur) solely as a result of the execution
and delivery of the Unit Investment Documents (or any amendment
thereto in accordance with the terms thereof), or any actions taken
by any of the Unit Purchasers pursuant to the terms of any of the
Unit Investment Documents, or the consummation of the transactions
contemplated by the Unit Investment Documents, or the announcement
or commencement thereof, including, without limitation, the
acquisition by any of the Unit Purchasers now or at any time in the
future of any Common Shares, Series B Preferred Shares, Common
Shares issued or issuable upon conversion of Series B Preferred
Shares, Unit Warrants, and Common Shares issued or issuable upon
exercise of Warrants, or any other acquisition of any of such
securities, in each case pursuant to the Unit Investment Documents."
1.3 Section 1(j) of the Rights Agreement is hereby amended by
deleting such Section in its entirety and renumbering Sections 1(j) through 1(m)
to be Sections 1(i) through 1(l), respectively.
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1.4 Section 1(k) of the Rights Agreement (as renumbered
pursuant to this Amendment), containing the definition of "Shares Acquisition
Date", is hereby amended by adding the following to the end thereof:
"Notwithstanding anything to the contrary contained herein, no
Shares Acquisition Date shall occur solely as a result of the
execution and delivery of the Unit Investment Documents (or
any amendment thereto in accordance with the terms thereof),
or any actions taken by any of the Unit Purchasers pursuant to
the terms of any of the Unit Investment Documents, or the
consummation of the transactions contemplated by the Unit
Investment Documents, or the announcement or commencement
thereof, including, without limitation, the acquisition by any
of the Unit Purchasers now or at any time in the future of any
Common Shares, Series B Preferred Shares, Common Shares issued
or issuable upon conversion of Series B Preferred Shares, Unit
Warrants, and Common Shares issued or issuable upon exercise
of Warrants, or any other acquisition of any of such
securities, in each case pursuant to the Unit Investment
Documents."
1.5 Section 1 of the Rights Agreement is hereby further
amended to add the following definitions:
"(m) 'Unit Investment Documents' shall mean (i) the Securities
Purchase Agreement, dated as of December 9, 1999 (the
"Securities Purchase Agreement"), by and among the Company and
the Unit Purchasers, (ii) the Unit Warrants issued or to be
issued to the Unit Purchasers pursuant to the Securities
Purchase Agreement, (iii) the Certificate of Designations
relating to the Series B Preferred Shares, and (iv) any other
agreement or instrument executed by the Company and the Unit
Purchasers in connection with the foregoing, as each of the
foregoing may be amended from time to time in accordance with
the respective terms thereof."
(n) 'Unit Purchaser' shall mean each Person that is or becomes
a party to the Securities Purchase Agreement as a purchaser of
securities from the Company."
(o) 'Unit Warrants' shall mean the warrants to purchase Common
Shares issued or issuable to the Unit Purchasers pursuant to
the Unit Investment Documents.
(p) 'Series B Preferred Shares' shall mean shares of Series B
Preferred Stock, $.01 par value, of the Company.
2. AMENDMENT TO SECTION 3(a). Section 3(a) of the Rights
Agreement is hereby amended by adding to the end thereof the following:
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"Notwithstanding anything to the contrary contained herein,
neither any Distribution Date nor any Shares Acquisition Date
shall occur solely as a result of the execution and delivery
of the Unit Investment Documents (or any amendment thereto in
accordance with the terms thereof), or any actions taken by
any of the Unit Purchasers pursuant to the terms of any of the
Unit Investment Documents or the consummation of the
transactions contemplated by the Unit Investment Documents, or
the announcement or commencement thereof, including without
limitation, the acquisition by any of the Unit Purchasers now
or at any time in the future of any Common Shares, Series B
Preferred Shares, Common Shares issued or issuable upon
conversion of the Series B Preferred Shares, Unit Warrants,
and Common Shares issued or issuable upon exercise of Unit
Warrants, or any other acquisition of any of such securities,
in each case pursuant to the Unit Investment Documents."
3. AMENDMENT TO SECTION 11. Section 11 of the Rights Agreement
is hereby amended by adding to the end thereof the following:
"(p) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 shall not apply to
or be triggered by the execution and delivery of the Unit
Investment Documents (or any amendment thereto in accordance
with the terms thereof) or the consummation of the
transactions contemplated by the Unit Investment Documents, or
any actions taken by any of the Unit Purchasers pursuant to
the terms of any of the Unit Investment Documents or the
announcement or commencement thereof, including, without
limitation, the acquisition of any of the Unit Purchasers now
or at any time in the future of any Common Shares, Series B
Preferred Shares, Common Shares issued or issuable upon
conversion of the Series B Preferred Shares, Unit Warrants,
and Common Shares issued or issuable upon exercise of Unit
Warrants, or any other acquisition of any such securities, in
each case pursuant to the Unit Investment Documents."
4. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement
is hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
the provisions of this Section 13 shall not apply to or be
triggered by the execution or delivery of the Unit Investment
Documents (or any amendment thereto in accordance with the
terms thereof), or any actions taken by any of the Unit
Purchasers pursuant to the terms of any of the Unit Investment
Documents, or the consummation of the transactions
contemplated by the Unit Investment Documents, or the
announcement or commencement thereof, including without
limitation, the acquisition by any of the Unit Purchasers now
or at any time in the future of the Common Shares, Series B
Preferred Shares, Common Shares issued or issuable upon
conversion of Series B Preferred Shares, Unit Warrants, and
Common Shares issued or issuable upon exercise of Unit
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Warrants, or any other acquisition of any of such securities
in each case pursuant to the Unit Investment Documents."
5. AMENDMENT TO SECTION 24(a). Section 24(a) of the Rights
Agreement is hereby amended by deleting the words "or Xxxxxxx Petroleum Company"
in the second sentence.
6. AMENDMENT TO SECTION 27. The last sentence of Section 27 is
hereby amended to read in its entirety as follows:
"Without limiting the foregoing, the Company may at any time
prior to such time as any Person becomes an Acquiring Person
amend this Agreement to lower the thresholds set forth in
Sections 1(a) and 3(a) (other than the specific thresholds
applicable to American Meter and its Affiliates and
Associates) to no less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common
Shares then known by the Company to be beneficially owned by
any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity holding Common Shares
for or pursuant to the terms of such plan) and (ii) 10%.
7. AMENDMENT TO SECTION 29. Section 29 is hereby amended by
deleting the words "(with, where specifically provided for herein, the
concurrence of the Continuing Directors)" in all three places in which they
appear where such words occur, and by deleting the words "or the Continuing
Directors" in the final sentence.
8. RIGHTS AGENT NOT LIABLE. The Rights Agent shall not be
liable for or by reason of any of the statements of fact or recitals contained
in this Amendment.
9. EFFECTIVENESS OF AMENDMENT. This Amendment shall be
effective as of the date first above written. All references to the Rights
Agreement, including the terms "Agreement," "hereof," "herein" and the like set
forth in the Rights Agreement shall, as of and after the date first above
written, be deemed to be references to the Rights Agreement, as amended prior to
the date hereof, as modified and amended by the terms of this Amendment. Except
as and to the extent specifically modified and amended by the terms of this
Amendment, all terms and conditions of the Rights Agreement, as previously
amended shall remain in full force and effect from and after the date first
above written.
10. GOVERNING LAW. This Amendment shall in all respects be
governed by and construed in accordance with the laws of the State of Delaware.
11. CAPTIONS. Captions of the sections and subsections of this
Amendment are used herein solely for convenience of reference and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment.
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12. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute one and the
same instrument.
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IN WITNESS WHEREOF, this Amendment No. 2 to Rights Agreement has been
duly executed and delivered on behalf of the parties hereto by their respective
duly authorized officers, effective as of the date first above written.
METRETEK TECHNOLOGIES, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
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A. Xxxxxxx Xxxxxxx,
Executive Vice President
ATTEST:
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Secretary
AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By: /s/ Xxxxxxxx Kaggerty
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Its: Vice President
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ATTEST:
By: /s/ Xxxxxxx Xxxx
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Its: Executive Vice President
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