SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): NOVEMBER 30, 2001
METRETEK TECHNOLOGIES, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 0-19793 84-11698358
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(State or other jurisdiction (Commission File Number) (I.R.S Employer
of incorporation) Identification No.)
600 17TH STREET, SUITE 800 NORTH, DENVER, COLORADO 80202
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (303) 416-9200
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NOT APPLICABLE
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(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
On October 26, 2001, the Board of Directors of Metretek Technologies,
Inc., a Delaware corporation (the "Company"), authorized the amendment and
restatement of its stockholders rights plan set forth in a Rights Agreement,
dated as of December 2, 1991, between the Company and Computershare Investor
Services, LLC (formerly known as American Securities Transfer, Inc.), as rights
agent (the "Rights Agent"). Pursuant to such authorization, the Company and the
Rights Agent entered into an Amended and Restated Rights Agreement, dated as of
November 30, 2001 (the "Restated Rights Agreement"). The Board of Directors of
the Company determined it was desirable and in the best interests of the Company
and its stockholders for the Company to extend and renew the benefits afforded
by the original Rights Agreement and to amend certain provisions thereof. The
Restated Rights Agreement was adopted in the normal course of updating and
extending the original Rights Agreement that was scheduled to expire on December
1, 2001 and not in response to any acquisition proposal.
The Board of Directors originally adopted the Rights Agreement, and has
subsequently authorized the extension and the amendments thereto and the
restatement thereof as set forth in the Restated Rights Agreement, in order to
protect stockholders from coercive or otherwise unfair takeover tactics. In
general terms, the Restated Rights Agreement works by imposing a significant
economic penalty upon any person or group that acquires 15% or more of the
outstanding shares of Common Stock of the Company without the approval of the
Board of Directors of the Company. The Restated Rights Agreement should not
interfere with any merger or other business combination approved by the Board of
Directors.
On December 2, 1991, the Board of Directors of the Company declared a
dividend of one preferred share purchase right (a "Right") for each share common
stock, par value $.01 per share ("Common Stock"), of the Company outstanding on
December 2, 1991 (the "Record Date"), and further authorized the issuance of one
Right for each share of Common Stock issued after the Record Date and prior to
the Distribution Date (as defined below). Once exercisable under the Restated
Rights Plan, each Right entitles the registered holder thereof to purchase from
the Company one one-hundredth of a share of Series C Preferred Stock, par value
$.01 per share ("Preferred Shares"), of the Company at a purchase price of
$15.00 per one one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment.
In the Restated Rights Agreement, the Company has extended the
expiration date of its stockholder rights plan and has amended it to reflect
prevailing stockholder rights plan terms and to give effect to, and to make
certain adjustments as a result of, the July 1998 reverse split of the Common
Stock of the Company. The amendments to the Restated Rights Agreement: (i)
extend the term of the original Rights Agreement, which was set to expire
December 1, 2001, to November 30, 2011; (ii) reduce the number of shares of the
Company's Series C Preferred Stock, par value $.01 per share ("Preferred
Shares"), purchasable upon exercise of a Right issued thereunder from four
one-hundredths of a Preferred Share (resulting from the adjustment due to the
July 1998 reverse split of the Common Stock) to one one-hundredth of a
Preferred Share; (iii) reduce the purchase price of one-hundredth of a
Preferred Share pursuant to each Right from $25.00 to $15.00; (iv) give effect
to, and incorporate certain adjustments due to, the July 1998 reverse split;
(v) reduce the
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Redemption Price (as defined below) from $.04 to $.01 per Right; (vi) update the
original Rights Agreement to comply with current laws and prevailing
stockholders rights plan terms; and (vii) include various other technical
amendments.
The Restated Rights Agreement, including the terms of the Preferred
Shares and the other exhibits attached thereto, has been filed with the
Securities and Exchange Commission as an exhibit to the Company's Registration
Statement on Form 8-A/A, Amendment No. 5 and is incorporated herein by
reference. A copy of the Restated Rights Agreement is available upon request
free of charge from the Company. The summary description in this report of the
Restated Rights Agreement, including the terms of the Rights and the Preferred
Shares, does not purport to be complete and is qualified in its entirety by
reference to all the provisions of the Restated Rights Agreement, including the
exhibits thereto (which exhibits include the rights, privileges and preferences
of the Preferred Shares) and the definitions contained therein.
THE RIGHTS
The Board of Directors of the Company authorized the issuance of one
Right with respect to each share of Common Stock outstanding on or issued after
December 2, 1991 until the Distribution Date. The Rights currently trade with,
and are inseparable from, the Common Stock. Currently, the Rights are attached
to and evidenced only by all certificates or book-entry credits representing
outstanding shares of Common Stock, and the Rights will be attached to any
shares of Common Stock issued until the Distribution Date (as defined below).
The Rights will separate from the Common Stock on the Distribution Date.
PURCHASE PRICE
Each Right entitles the registered holder thereof to purchase from the
Company one one-hundredth of a Preferred Share of the Company at a Purchase
Price of $15.00 per one one-hundredth of a Preferred Share, subject to
adjustment, once the Rights become exercisable. This portion of a Preferred
Share will provide the holder of a Right approximately the same dividend, voting
and liquidation rights as would one share of Common Stock. Prior to exercise, a
Right does not provide its holder any dividend, voting or liquidation rights.
EXERCISABILITY
The Rights are not exercisable until the Distribution Date. The
"Distribution Date" will occur upon the earlier of: (i) ten days following the
public announcement (the date of such announcement being the "Shares Acquisition
Date") that a person or group of affiliated or associated persons (other than
the Company, any such subsidiary of the Company or any employee benefit plan of
the Company or any of its subsidiaries) (an "Acquiring Person") has acquired,
obtained the right to acquire, or otherwise obtained beneficial ownership of,
15% or more of the then outstanding shares of Common Stock, and (ii) ten
business days (or such later date which may be determined by action of the Board
of Directors prior to such time as any person or group would become an Acquiring
Person) following the commencement of a tender offer or exchange offer that
would result in a person or group becoming an Acquiring Person. However,
American Meter
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Company, a Delaware corporation, and its associates and affiliates will not be
deemed to be an "Acquiring Person" so long as their collective beneficial
ownership of Common Stock is below 25% of the outstanding shares of Common
Stock. In addition, persons that purchased units of the Company's Common Stock,
Series B Preferred Stock and Common Stock Purchase Warrants pursuant to a
Securities Purchase Agreement, dated as of December 9, 1999, as amended, will
not be deemed to become Acquiring Persons based solely upon their purchases of
the securities of the Company, and their subsequent acquisition of shares of
Common Stock pursuant to the exercise and special conversion of the securities,
in accordance with the terms of these securities. After the Distribution Date,
the Rights will separate from the Common Stock, and as soon thereafter as
practicable separate certificates evidencing the Rights ("Rights Certificates")
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date, and such separate Rights Certificates alone will
evidence the Rights. Any Rights held by an Acquiring Person, or its associates
or affiliates, will be null and void and will not be exercisable.
CONSEQUENCES OF A PERSON OR GROUP BECOMING AN ACQUIRING PERSON
In the event any person or group becomes an Acquiring Person, each
holder of a Right, other than Rights beneficially owned by an Acquiring Person
(which thereafter be void), will thereafter have the right to receive upon
exercise that number of shares of Common Stock having a market value equal to
two times the Purchase Price of the Right then in effect. For example, so long
as the Purchase Price of a Right is $15.00, if a person or group becomes an
Acquiring Person, then each holder of a Right will have the right to purchase
shares of Common Stock with a market value of $30.00, based on the market price
of the Common Stock immediately prior to the date the person or group became an
Acquiring Person.
In the event that, at any time following the Shares Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction, or (ii) any entity consolidates or merges with or into the Company
and the Company is the surviving corporation, but the Common Stock is converted
into or exchanged for securities, cash or property of any other entity, or (iii)
50% or more of the consolidated assets or earning power of the Company are sold,
each holder of a Right (except Rights which have previously been voided as set
forth above) shall thereafter have the right to receive, upon exercise, common
stock of the acquiring company having a market value equal to two times the
Purchase Price of the Right then in effect.
TERMS OF PREFERRED SHARES
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each one one-hundredth of a Preferred Share will entitle the holder
thereof to a minimum preferential quarterly dividend payment equal to the
greater of $.04 or the dividend payable on one share of Common Stock. In the
event of liquidation, the holders of Preferred Shares will be entitled, with
respect each one one-hundredth of a Preferred Share held, to a minimum
preferential liquidation payment of the greater of $.16 or the amount payable
per share of Common Stock. Each one one-hundredth of a Preferred Share will have
one vote, and will vote together with the Common Stock. Finally, in the event of
a merger, consolidation or other transaction in which the Common Stock is
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exchanged, each one one-hundredth of a Preferred Share will entitle the holder
thereof to receive the same payment to be received by a holder of one share of
Common Stock.
Due to the nature of the Preferred Shares' dividend, liquidation and
voting rights, as described above, the value of one one-hundredth of a Preferred
Share should approximate the value of one share of Common Stock. The rights of
holders of Preferred Share are protected by customary anti-dilution protections.
EXPIRATION
The Rights will expire at the close of business on November 30, 2011
(the "Final Expiration Date"), unless the Final Expiration Date is extended
prior thereto by action of the Board of Directors or unless the Rights are
earlier redeemed or exchanged by the Company, as described below.
REDEMPTION OF RIGHTS
At any time prior to the close of the tenth business day following the
Shares Acquisition Date, the Company, by action of the Board of Directors, may
redeem the Rights in whole, but not in part, at a price of $.01 per Right,
subject to adjustment in certain events (the "Redemption Price") payable in
cash, Common Stock or any other form of consideration deemed appropriate by the
Board of Directors. Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
EXCHANGE OF RIGHTS
At any time after a person or group becomes an Acquiring Person, but
before an Acquiring Person becomes the beneficial owner of 50% or more of the
outstanding Common Stock, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by an Acquiring Person, which shall have become
void), in whole or in part, at an exchange ratio of one share of Common Stock
per Right, subject to adjustment.
ANTI-DILUTION PROVISIONS AND ADJUSTMENTS
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of Preferred Shares of certain rights or
warrants that subscribes for or purchases Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares, or (iii) upon the
distribution to holders of Preferred Shares of evidences of indebtedness of
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of a subscription
rights or warrants (other than those referred to above). With certain
exceptions, no adjustments of the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price.
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No fractional Preferred Shares will be issued (other than fractions
which are intrical multiples of one one-hundredth of a Preferred Share, which
may, at the election of the Company, be evidenced by depositary receipts). In
thereof, a payment in cash will be made based on the market price of the
Preferred Shares of the last trading day prior to the date of exercise.
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
RIGHTS OF RIGHTS HOLDERS
Until a Right is exercised for Preferred Shares or exchanged for Common
Stock, the holder thereof, as such, will have no rights as a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights is not taxable to stockholders
or to the Company, stockholders may, depending upon the circumstances, recognize
taxable income in the event that the Rights become exercisable or are redeemed
or exchanged as provided above.
AMENDMENTS
Prior to the Distribution Date, any of the provisions of the Restated
Rights Agreement may be amended by the Board of Directors of the Company without
the consent of the holders of the Rights. Thereafter, the provisions of the
Restated Rights Agreement may be amended by the Board of Directors of the
Company in order to cure any ambiguity, defect or inconsistency, to make changes
which do not adversely effect the interest of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time period
under the Restated Rights Agreement; provided, however, that no amendment to
adjust the time period governing redemption shall be made at such time as the
Rights are not redeemable.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS
3.1 Second Restated Certificate of Incorporation of Metretek
Technologies, Inc.*
4.1 Amended and Restated Rights Agreement, dated as of November 30,
2001, between Metretek Technologies, Inc. and Computershare
Investor Services, Inc.**
4.2 Form of Rights Certificate (Included as Exhibit B to the Amended
and Restated Rights Agreement).**
4.3 Form of Summary of Rights to Purchase (Included as Exhibit C to
the Amended and Restated Rights Agreement).**
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* Incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A/A, Amendment No. 5, filed
November 30, 2001.
** Incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3, Registration No. 333-96369.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
METRETEK TECHNOLOGIES, INC.
By: /s/ W. Phillip Marcum
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W. Phillip Marcum
President and Chief Executive Officer
Dated: November 30, 2001
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