EXHIBIT 1
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AMENDMENT NO. 1
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment"), dated as of April 22, 2004, is made and entered into by and
between Metretek Technologies, Inc., a Delaware corporation (the "Company"), and
Computershare Investor Services, LLC (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, originally dated as of December 2, 1991 and
amended and restated as of November 30, 2001 (as amended and restated, the
"Rights Agreement"); and
WHEREAS, the Board of Directors of the Company has authorized and
approved a Securities Purchase Agreement (the "Purchase Agreement") by and among
the Company and certain investors ("2004 Private Placement Investors"),
providing for, among other things, the offering, sale and issuance by the
Company (the "2004 Private Placement") to the 2004 Private Placement Investors
of shares of the Company's Common Stock, par value $.01 per share ("Common
Shares") to the 2004 Private Placement Investors, and warrants to purchase
Common Shares to the 2004 Private Placement Investors and to the placement agent
for the 2004 Private Placement; and
WHEREAS, the Company has authorized and approved agreements (the
"Preferred Share Agreement") by and among the Company and certain holders (the
"Series B Preferred Shareholders") of its Series B Preferred Stock, par value
$.01 per share ("Series B Preferred Shares"), providing for, among other things,
the Company to issue warrants to purchase Common Shares to such holders of
Series B Preferred Share;
WHEREAS, the Board of Directors of the Company has determined that the
Purchase Agreement and the Preferred Share 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 2004 Private Placement Investors to
enter into the Purchase Agreement and the willingness of the Series B Preferred
Shareholders to enter into the Preferred Share Agreements 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
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 Section 1(a) of the Rights Agreement is hereby amended
by adding to the end thereof
the following:
"In addition, notwithstanding anything to the contrary
contained herein, (i) neither a 2004 Private Placement
Investor 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 2004 Private Placement Documents
(or any amendment thereto in accordance with the terms
thereof), or any actions taken by any of the 2004 Investors
pursuant to the terms of any of the 2004 Private Placement
Documents, or the consummation of the transactions
contemplated by the 2004 Private Placement Documents, or the
announcement or commencement thereof, including, without
limitation, the acquisition by any of the 2004 Private
Placement Investors now or at any time in the future of any
Common Shares, 2004 Private Placement Warrants, and Common
Shares issued or issuable upon exercise of 2004 Private
Placement Warrants, or any other acquisition of any of such
securities, in each case pursuant to the 2004 Private
Placement Documents, and (ii) neither a Series B Preferred
Shareholder 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 Series B Preferred Share
Documents (or any amendment thereto in accordance with the
terms thereof), or any actions taken by any of the Series B
Preferred Shareholders pursuant to the terms of any of the
Series B Preferred Share Documents, or the consummation of the
transactions contemplated by the Series B Preferred Share
Documents, or the announcement or commencement thereof,
including, without limitation, the acquisition by any of the
Series Preferred Shareholders now or at any time in the future
of any Series B Preferred Share Warrants or any Common Shares
issued or issuable upon exercise of Series B Preferred Share
Warrants, or any other acquisition of any of such securities,
in each case pursuant to the Series B Preferred Share
Documents."
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1.2 Section 1(jj) of the Rights Agreement is hereby
amended by adding the following to the end thereof:
"In addition, notwithstanding anything to the contrary
contained herein, no Shares Acquisition Date shall occur
solely as a result of the execution and delivery of the 2004
Private Placement Documents or the Series B Preferred Share
Documents (or any amendments thereto in accordance with the
terms thereof), or any actions taken by any of the 2004
Private Placement Investors or any of the Series B Preferred
Shareholders pursuant to the terms of any of the 2004 Private
Placement Documents or the Series B Preferred Share Documents,
or the consummation of the transactions contemplated by the
2004 Private Placement Documents or the Series B Preferred
Share Documents, or the announcement or commencement thereof,
including, without limitation, the acquisition by any of the
2004 Private Placement Investors or any of the Series B
Preferred Shareholders now or at any time in the future of any
Common Shares, 2004 Private Placement Warrants, Series B
Preferred Share Warrants, Common Shares issued or issuable
upon exercise of any 2004 Private Placement Warrants or Series
B Preferred Share Warrants, or any other acquisition of any of
such securities, in each case pursuant to the 2004 Private
Placement Documents or the Series B Preferred Share
Documents."
1.3 Section 1 of the Rights Agreement is hereby further
amended by addition to the end thereof the following definitions:
"(tt) `2004 Private Placement Documents' shall mean (i) the
Securities Purchase Agreement, dated as of April 22, 2004 (the
"2004 Purchase Agreement"), by and among the Company and the
2004 Private Placement Investors, (ii) the 2004 Private
Placement Warrants issued or to be issued to the 2004 Private
Placement Investors pursuant to the Securities Purchase
Agreement, and (iii) any other agreement or instrument
executed by the Company and the 2004 Private Placement
Investors in connection with the foregoing, as each of the
foregoing may be amended from time to time in accordance with
the respective terms thereof."
(uu) `2004 Private Placement Investors' shall mean (i) each
Person that is or becomes a party to the 2004 Purchase
Agreement as a purchaser of securities from the Company, and
(ii) the placement agent in connection therewith."
(vv) `2004 Private Placement Warrants' shall mean the warrants
to purchase Common Shares issued or issuable to the 2004
Private Placement Investors pursuant to the 2004 Private
Placement Documents.
(ww) `Series B Preferred Share Documents' shall mean (i) the
agreements (the "Series B Preferred Share Agreements"), by and
among the Company and certain Series B Preferred Shareholders,
(ii) the Series B Preferred Share Warrants issued or to be
issued to Series B Preferred Shareholders pursuant to the
Series B Preferred Share Agreements, and (iii) any other
agreement or instrument executed by the Company and the Series
B Preferred Shareholders in connection with the foregoing,
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as each of the foregoing may be amended from time to time in
accordance with the respective terms thereof."
(uu) `Series B Preferred Shareholder' shall mean each holder
of Series B Preferred Shares that is or becomes a party to the
Series B Preferred Share Agreements."
(vv) `Series B Preferred Share Warrants' shall mean the
warrants to purchase Common Shares issued or issuable to the
Series B Preferred Shareholders pursuant to the Series B
Preferred Share Documents."
2. Amendment to Section 3(a). Section 3(a) of the Rights
Agreement is hereby amended by adding to the end thereof the following:
"In addition, notwithstanding anything to the contrary
contained herein, no Distribution Date shall be deemed to have
occurred solely as a result of the 2004 Private Placement
Documents or the Series B Preferred Share Documents (or any
amendments thereto in accordance with the terms thereof), or
any actions taken by any of the 2004 Investors or any of the
Series B Preferred Shareholders pursuant to the terms of any
of the 2004 Private Placement Documents or the Series B
Preferred Share Documents, or the consummation of the
transactions contemplated by the 2004 Private Placement
Documents or the Series B Preferred Share Documents, or the
announcement or commencement thereof, including, without
limitation, the acquisition by any of the 2004 Private
Placement Investors or any of the Series B Preferred
Shareholders now or at any time in the future of any Common
Shares, 2004 Private Placement Warrants, Series B Preferred
Share Warrants, Common Shares issued or issuable upon exercise
of any 2004 Private Placement Warrants or Series B Preferred
Share Warrants, or any other acquisition of any of such
securities, in each case pursuant to the 2004 Private
Placement Documents or the Series B Preferred Share
Documents."
3. Amendment to Section 11. Section 11 of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"(r) 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 of the
2004 Private Placement Documents or the Series B Preferred
Share Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by any of the 2004
Private Placement Investors or any of the Series B Preferred
Shareholders pursuant to the terms of any of the 2004 Private
Placement Documents or the Series B Preferred Share Documents,
or the consummation of the transactions contemplated by the
2004 Private Placement Documents or the Series B Preferred
Share Documents, or the announcement or commencement thereof,
including, without limitation, the acquisition by any of the
2004 Private Placement Investors or any of the Series B
Preferred Shareholders now or at any time in the future of any
Common Shares, 2004 Private Placement
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Warrants, Series B Preferred Share Warrants, Common Shares
issued or issuable upon exercise of any 2004 Private Placement
Warrants or Series B Preferred Share Warrants, or any other
acquisition of any of such securities, in each case pursuant
to the 2004 Private Placement Documents or the Series B
Preferred Share Documents."
4. Amendment to Section 13. Section 13 of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"(g) 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 of the
2004 Private Placement Documents or the Series B Preferred
Share Documents (or any amendments thereto in accordance with
the terms thereof), or any actions taken by any of the 2004
Private Placement Investors or any of the Series B Preferred
Shareholders pursuant to the terms of any of the 2004 Private
Placement Documents or the Series B Preferred Share Documents,
or the consummation of the transactions contemplated by the
2004 Private Placement Documents or the Series B Preferred
Share Documents, or the announcement or commencement thereof,
including, without limitation, the acquisition by any of the
2004 Private Placement Investors or any of the Series B
Preferred Shareholders now or at any time in the future of any
Common Shares, 2004 Private Placement Warrants, Series B
Preferred Share Warrants, Common Shares issued or issuable
upon exercise of any 2004 Private Placement Warrants or Series
B Preferred Share Warrants, or any other acquisition of any of
such securities, in each case pursuant to the 2004 Private
Placement Documents or the Series B Preferred Share
Documents."
5. 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.
6. 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.
7. Governing Law. This Amendment shall in all respects be
governed by and construed in accordance with the laws of the State of Delaware.
8. 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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9. 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. 1 to Amended and Restated 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
COMPUTERSHARE INVESTOR SERVICES, LLC
By:
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Its:
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ATTEST:
By:
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Its:
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