Exhibit 10.6
AMENDMENT NO. 1
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
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").
WITNESSETH
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.
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."
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
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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 (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, 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."
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(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 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:
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"(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.
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. Bradley Gabbard
-----------------------
A. Bradley Gabbard,
Executive Vice President
ATTEST:
By: /s/ Gary J. Zuiderveen
-----------------------------
Gary J. Zuiderveen, Secretary
COMPUTERSHARE INVESTOR SERVICES, LLC
By:_______________________________
Its:______________________________
ATTEST:
By:____________________________
Its:___________________________
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