EX-10.3



 







Exhibit 10.3




AMENDMENT NO. 2

TO

AMENDED AND RESTATED RIGHTS AGREEMENT




     This AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT (this “Amendment”), dated as of
March 29, 2006, is made and entered into by and between Metretek Technologies, Inc., a Delaware
corporation (the “Company”), and Computershare Trust Company (f.k.a. ComputerShare Investor
Services, LLC) (the “Rights Agent”).



Recitals:




     WHEREAS, the Company and the Rights Agent have previously entered into that certain Rights
Agreement, originally dated as of December 2, 1991, amended and restated as of November 30, 2001,
and further amended on April 22, 2004 (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 “2006 Purchase Agreement”) by and among the Company and certain investors
(the “2006 Private Placement Investors”), providing for, among other things, the offering, sale and
issuance by the Company of shares of the Company’s Common Stock, par value $.01 per share (“Common
Shares”), and the offer and sale by certain officers and
directors as selling stockholders of Common Shares to the 2006 Private Placement Investors(the “2006 Private Placement”); and



     WHEREAS, the Board of Directors of the Company has determined that the 2006 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 2006 Private Placement Investors to enter into the 2006
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



     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;



 









 





Agreement




     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,
neither a 2006 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 2006 Private Placement Documents (or any amendment thereto in
accordance with the terms thereof), or any actions taken by any of the 2006
Private Placement Investors pursuant to the terms of any of the 2006 Private
Placement Documents, or the consummation of the transactions contemplated by
the 2006 Private Placement Documents, or the announcement or commencement
thereof, including, without limitation, the acquisition by any of the 2006
Private Placement Investors of any Common Shares pursuant to the 2006 Private
Placement 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 2006 Private Placement Documents (or any amendments thereto
in accordance with the terms thereof), or any actions taken by any of the
2006 Private Placement Investors pursuant to the terms of any of the 2006
Private Placement Documents or the consummation of the transactions
contemplated by the 2006 Private Placement Documents or the announcement or
commencement thereof, including, without limitation, the acquisition by any
of the 2006 Private Placement Investors of any Common Shares pursuant to the
2006 Private Placement Documents.”



          1.3 Section 1 of the Rights Agreement is hereby further amended by addition to the end
thereof the following definitions:





“(ww) ‘2006 Private Placement Documents’ shall mean (i) the Securities
Purchase Agreement, dated as of March 29, 2006 (the “2006 Purchase
Agreement”), by and among the Company and the 2006 Private Placement
Investors, and (ii) any other agreement or instrument executed by the Company
and the 2006 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.”




(xx) ‘2006 Private Placement Investors’ shall mean each Person that is or
becomes a party to the 2006 Purchase Agreement as a purchaser of Common
Shares from the Company.”



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     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
2006 Private Placement Documents (or any amendments thereto in accordance
with the terms thereof), or any actions taken by any of the 2006 Private
Placement Investors pursuant to the terms of any of the 2006 Private
Placement Documents, or the consummation of the transactions contemplated by
the 2006 Private Placement Documents, or the announcement or commencement
thereof, including, without limitation, the acquisition by any of the 2006
Private Placement Investors of any Common Shares pursuant to the 2006 Private
Placement Documents.”



     3. Amendment to Section 11. Section 11 of the Rights Agreement is hereby amended by
adding to the end thereof the following:




“(s) 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 2006 Private Placement Documents (or any
amendments thereto in accordance with the terms thereof), or any actions
taken by any of the 2006 Private Placement Investors pursuant to the terms of
any of the 2006 Private Placement Documents, or the consummation of the
transactions contemplated by the 2006 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by any of the 2006 Private Placement Investors of any Common
Shares pursuant to the 2006 Private Placement Documents.”



     4. Amendment to Section 13. Section 13 of the Rights Agreement is hereby amended by
adding to the end thereof the following:



     “(h) 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 2006 Private Placement Documents (or any
amendments thereto in accordance with the terms thereof), or any actions
taken by any of the 2006 Private Placement Investors pursuant to the terms of
any of the 2006 Private Placement Documents, or the consummation of the
transactions contemplated by the 2006 Private Placement Documents, or the
announcement or commencement thereof, including, without limitation, the
acquisition by any of the 2006 Private Placement Investors of any Common
Shares pursuant to the 2006 Private Placement 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



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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. 2 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 TRUST COMPANY, INC.
	 
	 	 	 	 	 	 	 	 	 	 
	 

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