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Exhibit 2
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AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of March 23, 1998, is made and entered into by and between Xxxxxx Natural Gas
Services, Inc., a Delaware corporation (the "Company"), and American Securities
Transfer & Trust, Inc. (formerly 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 (the "Rights
Agreement"); and
WHEREAS, the Board of Directors of the Company has authorized and
approved an Asset Purchase Agreement (the "Asset Purchase Agreement") by and
among American Meter Company, a Delaware corporation ("American Meter"), Eagle
Research Corporation, a West Virginia corporation and a subsidiary of American
Meter ("Eagle"), Metretek, Incorporated, a Florida corporation and a
wholly-owned subsidiary of the Company ("Metretek"), and the Company, providing
for, among other things, the sale of substantially all of the assets of Eagle to
Metretek in exchange for, among other things, shares of common stock, par value
$.01 per share, of the ("Common Stock"), and a promissory note convertible into
shares of Common Stock; and
WHEREAS, the Board of Directors of the Company has determined that the
Asset 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 American Meter and Eagle to enter into the
Asset Purchase Agreement as conditioned upon, among other things, the amendment
of the Rights Agreement on the terms set forth herein; 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 are 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:
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1. Amendments to Section 1.
(a) Amendment to Section 1(a). Section 1(a) of the Rights
Agreement is hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained
herein, neither American Meter nor any of its
Affiliates shall be or become an "Acquiring Person"
(and no Shares Acquisition Date shall occur) as a
result of (i) the execution of the Asset Purchase
Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of the
transactions contemplated thereby or the announcement
or commencement thereof, or (ii) the beneficial
ownership by American Meter and its Affiliates of up
to, but not in excess of, 25% of the Common Shares
then outstanding, pursuant to the Asset Purchase
Agreement or otherwise."
(b) Additions to Section 1. Section 1 of the Rights Agreement
is hereby further amended to add the following definitions:
"(c) `American Meter' shall mean American Meter
Company, a Delaware corporation.
(d) `Asset Purchase Agreement' shall mean the Asset
Purchase Agreement, dated as of March 23, 1998, by
and among American Meter, Eagle Research Corporation,
a West Virginia corporation and a subsidiary of
American Meter, the Company and Metretek,
Incorporated, a Florida corporation and a
wholly-owned subsidiary of the Company, as the same
may be amended from time to time in accordance with
the terms thereof."
(c) Relettering to Subsections of Xxxxxxx 0. Xxxxxxxxxxx (x),
(x), (x), (x), (x), (x), (x), (x) and (k) of Section 1 of the Rights Agreement
are hereby relettered to become Subsections (e), (f), (g), (h), (i), (j), (k),
(l) and (m) of Section 1 of the Rights Agreement, respectively.
2. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained
herein, no Distribution Date shall occur as the
result of (i) the execution of the Asset Purchase
Agreement (or any amendment thereto in accordance
with the terms thereof) or the consummation of the
transactions contemplated thereby, or the
announcement or commencement thereof, or (ii) the
beneficial ownership by American Meter and its
Affiliates of up to, but not in excess of, 25% of the
Common Shares then outstanding, pursuant to the Asset
Purchase Agreement or otherwise."
3. Amendment to Section 3(c). The first sentence of the legend in
Section 3(c) of the Rights Agreement is hereby amended in its entirety to read
as follows:
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"This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between Xxxxxx Natural Gas Services,
Inc. and American Securities Transfer & Trust, Inc.,
dated December 2, 1991, as amended as of March 23,
1998 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices
of Xxxxxx Natural Gas Services, Inc."
4. Amendment to Section 11. Section 11 of the Rights Agreement is
hereby amended by adding to the end thereof the following:
"(o) Notwithstanding anything to the contrary
contained herein, the provisions of this Section 11
shall not apply to or be triggered by (i) the
execution of the Asset Purchase Agreement (or any
amendment thereto in accordance with the terms
thereof) or the consummation of the transactions
contemplated thereby, or the announcement or
commencement thereof, or (ii) the beneficial
ownership by American Meter and its Affiliates of up
to, but not in excess of, 25% of the Common Shares
then outstanding, pursuant to the Asset Purchase
Agreement or otherwise."
5. 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 of the
Asset Purchase Agreement (or any amendment thereto in
accordance with the terms thereof), or the
consummation of the transactions contemplated
thereby, or the announcement or commencement
thereof."
6. Amendment to Section 27. The end of the parenthetical phrase in the
second sentence of clause (ii) of Section 27 of the Rights Agreement is hereby
amended by deleting the phrase "Xxxxxxx Petroleum Corporation of Michigan or
Engineering Measurements Company)" and substituting in its place the following
clause:
"Xxxxxxx Petroleum Corporation of Michigan,
Engineering Measurements Company, or American Meter
and its Affiliates)"
7. 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.
8. 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 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 shall
remain in full force and effect from and after the date first above written.
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9. Governing Law. This Amendment shall in all respects be governed by
and construed in accordance with the laws of the State of Delaware.
10. 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.
11. 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.
IN WITNESS WHEREOF, this Amendment has been executed and delivered on
behalf of the parties hereto by their respective duly authorized officers,
effective as of the date first above written.
XXXXXX NATURAL GAS SERVICES, INC.
By: /s/ W. Xxxxxxx Xxxxxx
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W. Xxxxxxx Xxxxxx, President
ATTEST:
By: /s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx, Secretary
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By: /s/ Xxxxxxx Xxxx
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Its: Executive Vice President
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ATTEST:
By: /s/ Xxxxx X. Xxxxx
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Its: Corporate Services Officer
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