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As filed with the Securities and Exchange Commission on August 1, 2000 Registration No. 333-_____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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METRETEK TECHNOLOGIES, INC.
---------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 84-1169358
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1675 Broadway, Suite 2150
Denver, Colorado 80202
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(ADDRESS AND ZIP CODE OF PRINCIPAL EXECUTIVE OFFICES)
Metretek - Southern Flow Savings and Investment Plan
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(FULL TITLE OF THE PLAN)
A. Bradley Gabbard, Executive Vice President
Metretek Technologies, Inc.
1675 Broadway, Suite 2150
Denver, Colorado 80202
(303) 592-5555
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(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
Paul R. Hess, Esq.
Kegler, Brown, Hill & Ritter Co., L.P.A.
65 East State Street, Suite 1800
Columbus, Ohio 43215
(614) 462-5400
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Maximum Proposed Maximum Amount of Registration
Securities to be to be Offering Price Aggregate Fee
Registered Registered Per Share Offering Price
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Common Stock, par value $.01
per share (1) (2) 250,000(2) $5.41(3) $1,352,500(3) $357.06
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Interests in the Plan (4) N/A N/A (4)
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(1) Includes the related Preferred Share Purchase Rights to purchase shares
of Series C Preferred Stock, par value $.01 per share, of Metretek
Technologies, Inc. No separate consideration will be received for the
Preferred Share Purchase Rights, which, prior to the occurrence of
certain prescribed events, are not exercisable, are evidenced by the
certificates for Common Stock and are transferable only with the Common
Stock. The value, if any, of the Preferred Share Purchase Rights is
reflected in the market price of the Common Stock.
(2) This Registration Statement covers shares of Common Stock, per value
$.01 per share, of Metretek Technologies, Inc., which may be purchased
in the open market pursuant to the Metretek - Southern Flow Savings and
Investment Plan. Pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an intermediate number of
additional shares of Common Stock and other securities of Metretek to
be offered pursuant to the anti-dilution terms of the Plan described
herein.
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(3) Estimated solely for the purpose of computing the registration fee
pursuant to paragraphs (c) and (h)(1) of Rule 457 under the Securities
Act, upon the basis of the average of the high and low prices of the
Common Stock as reported on the Nasdaq National Market on July 26,
2000.
(4) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described
herein. Pursuant to Rule 457(h)(2) under the Securities Act, no
separate fee is required with respect to the interests in the employee
benefit plan described herein.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the Note to Part I of Form S-8, such documents will not be filed with the
Securities and Exchange Commission (the "SEC") either as part of this
Registration Statement or as prospectuses and prospectus supplements pursuant to
Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Metretek
Technologies, Inc., a Delaware corporation and a small business issuer (the
"Company" or the "Small Business Issuer" or the "Registrant"), with the SEC
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1999;
(b) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 2000;
(c) The Company's Current Reports on Form 8-K filed with the SEC
on April 3, 2000 and July 14, 2000; and
(d) The description of the Common Stock, par value $.01 per share
("Common Stock"), of the Company, including the description of
the Company's Preferred Share Purchase Rights contained in the
Registrant's Registration Statement on Form 8-A filed with the
SEC on January 10, 1993 ("Form 8-A"), as amended on Form 8-A/A
Amendment No. 1 filed with the SEC on April 3, 1998, Form
8-A/A Amendment No. 3 filed with the SEC on July 7, 1999 and
Form 8-A/A Amendment No. 4 filed with the SEC on December 23,
1999, including any amendment or report filed with the SEC for
the purpose of updating such description.
In addition, all documents filed by the Company and the Metretek -
Southern Flow Savings and Investment Plan (the "Plan") pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Registration
Statement from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
("DGCL") provides for indemnification of the directors, officers, employees and
other agents of a corporation under certain conditions and subject to certain
limitations. As permitted by Section 145 of the DGCL, the Company's Second
Restated Certificate of Incorporation, as amended ("Certificate"), permits the
Company to indemnify any person who was or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, other than an action by or in the
right of the Company, by reason of the fact such person is or was an officer of
director of the Company, or is or was serving at the Company's request as a
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director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. The Company is also permitted to indemnify the
same persons against expenses, including attorneys' fees, actually and
reasonably incurred by such persons in connection with the defense or settlement
of any threatened, pending or completed action or suit by or in the right of the
Company under the same conditions, except that no indemnification will be made
in respect to any claim, issue or matter as to which such person has been
adjudged to be liable to the Company unless, and only to the extent that, the
adjudicating court determines that such indemnification is proper under the
circumstances. To the extent such persons are successful on the merits or
otherwise in defense of any such action, suit or proceeding, such
indemnification is mandatory. The Company may also pay the expenses incurred in
any such action, suit or proceeding in advance of its final disposition, upon
receipt of an appropriate undertaking by such person. Such rights are not
exclusive of any other right which any person may have or acquire under any
statute, under any provision of the Certificate or the Company's Amended and
Restated By-Laws ("By-Laws"), or under any agreement, vote of stockholders or
disinterested directors or otherwise. No repeal or modification of these
provisions of the Certificate will in any way diminish or adversely affect the
rights of any person to indemnification thereunder in respect of any occurrences
or matters arising prior to any such repeal or modification.
The Company's By-Laws provide that the Company shall indemnify its
directors, officers, employees and agents to the extent permitted by the DGCL.
As permitted by Section 102(b)(7) of the DGCL, the Company's
Certificate also eliminates the personal liability of the Company's directors to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders; (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) under Section 174 of the DGCL, relating to unlawful payments of
dividends or unlawful stock purchases or redemptions; and (iv) for any
transaction from which a director derived an improper person benefit.
The Company's Certificate also specifically authorizes the Company to
maintain insurance and to grant similar indemnification rights to employees or
agents of the Company. The Company maintains an insurance policy indemnifying
its directors and officers against certain liabilities, including liabilities
arising under the Securities Act, which might be incurred by them in their
capacity as directors and officers.
The Company has also entered into indemnification agreements with each
of its directors, indemnifying them against certain liabilities, including
liabilities arising under the Securities Act, which might be incurred by them in
their capacity as directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Second Restated Certificate of Incorporation of Metretek
Technologies, Inc. (Incorporated by reference to Exhibit 4.1
to the Company's Registration Statement on Form S-3,
Registration No. 333-96369).
4.2 Amended and Restated By-Laws of Metretek Technologies, Inc.
(Incorporated by reference to Exhibit 3.3 to the Company's
Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998).
4.3 Specimen Common Stock Certificate (Incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on Form
S-18, Registration No. 33-44558).
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4.4 Rights Agreement, dated as of December 2, 1991, between
Metretek Technologies, Inc. and American Securities Transfer,
Inc. (Incorporated by reference to Exhibit 10.6 to the
Company's Registration Statement on Form S-18, Registration
No. 33-44558).
4.5 Amendment No. 1 to Rights Agreement, dated as of March 23,
1998, by and between Metretek Technologies, Inc. and American
Securities Transfer & Trust, Inc. (Incorporated by reference
to Exhibit 2 to the Company's Form 8-A/A, Amendment No. 1
filed April 3, 1998).
4.6 Amendment No. 2 to Rights Agreement, dated as of December 9,
1999, by and between Metretek Technologies, Inc. and American
Securities Transfer & Trust, Inc. (Incorporated by reference
to Exhibit 1 to the Company's Form 8-A/A, Amendment No. 4
filed December 23, 1999).
4.7 Prototype - Basic Plan Document for the Metretek - Southern
Flow Savings and Investment Plan.
4.8 Adoption Agreement for the Metretek - Southern Flow Savings
and Investment Plan.
4.9 Group Trust Agreement for the Metretek - Southern Flow Savings
and Investment Plan.
5.1 Pursuant to Item 8(a) of Form S-8, an opinion of counsel as to
the legality of the securities being registered is required
only with respect to original issuance securities. The common
stock being registered in this Form S-8 will not be issued by
the Company but will only be purchased in open market
transactions.
23.1 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney (included on the Signature Page of this
Registration Statement).
In lieu of an opinion of counsel concerning compliance with the
requirements of the Employee Retirement Income Security Act of 1974, as amended,
and an Internal Revenue Service ("IRS") determination letter that the Plan is
qualified under Section 401 of the Internal Revenue Code of 1986, as amended,
the Company hereby undertakes to submit the Plan and any amendments thereto to
the IRS in a timely manner and to make all changes required by the IRS in order
to qualify the Plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Small Business Issuer will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this
Registration Statement to:
(i) Include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or
events which, individually or together,
represent a fundamental change in the
information in the registration statement.
Notwithstanding the foregoing, any increase
or decrease in volume of securities offered
(if the total dollar value of securities
offered would not exceed that which was
registered) and any deviation from the low
or high end of the estimated maximum
offering range may be reflected in the form
of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the
maximum aggregate offering price set forth
in the "Calculation of Registration Fee"
table in the effective registration
statement; and
(iii) Include any additional or changed material
information on the plan of distribution;
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provided, however, that paragraphs (i) and (ii) above
do not apply if the information required in a
post-effective amendment is incorporated by reference
from periodic reports filed by Metretek under the
Exchange Act.
(2) For determining liability under the Securities Act,
treat each post-effective amendment as a new
registration statement of the securities offered, and
the offering of the securities at that time to be the
initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities being registered
that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Small Business Issuer pursuant to the
foregoing provisions, or otherwise, the Small Business Issuer has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Small Business Issuer of
expenses incurred or paid by a director, officer or controlling person of the
Small Business Issuer in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Small Business Issuer will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(c) The undersigned Small Business Issuer hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Small Business Issuer's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of the Plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Denver, State of Colorado on the 28th day of
July, 2000.
METRETEK TECHNOLOGIES, INC.
By: /s/ W. Phillip Marcum
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W. Phillip Marcum,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints W. Phillip Marcum, A. Bradley
Gabbard and Paul R. Hess, and each of them, with full power to act without the
joinder of others, as his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or his or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/s/ W. Phillip Marcum President, Chief Executive Officer July 28, 2000
-------------------------------- and Director (Principal Executive
W. Phillip Marcum Officer)
/s/ A. Bradley Gabbard Executive Vice President, Chief Financial July 28, 2000
-------------------------------- Officer, Treasurer, Secretary and Director
A. Bradley Gabbard (Principal Financial Officer)
/s/ Jeffrey B. Wood Principal Accounting Officer, Controller July 28, 2000
-------------------------------- and Assistant Secretary (Principal
Jeffrey B. Wood Accounting Officer)
/s/ Basil M. Briggs Director July 28, 2000
--------------------------------
Basil M. Briggs
/s/ Robert Lloyd Director July 28, 2000
--------------------------------
Robert Lloyd
/s/ Anthony D. Pell Director July 28, 2000
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Anthony D. Pell
/s/ Albert F. Thomasson Director July 28, 2000
--------------------------------
Albert F. Thomasson
/s/ Ronald W. McKee Director July 28, 2000
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Ronald W. McKee
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THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereto duly authorized, in the City of Denver, State of Colorado,
on the 28th day of July, 2000.
METRETEK - SOUTHERN FLOW SAVINGS AND
INVESTMENT PLAN
By: METRETEK TECHNOLOGIES, INC.
Plan Administrator
By: /s/ W. Phillip Marcum
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W. Phillip Marcum, President and
Chief Executive Officer
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METRETEK TECHNOLOGIES, INC.
METRETEK - SOUTHERN FLOW SAVINGS AND INVESTMENT PLAN
FORM S-8
EXHIBIT INDEX
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NUMBER DESCRIPTION OF EXHIBIT
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4.1 Second Restated Certificate of Incorporation of Metretek
Technologies, Inc. (Incorporated by reference to Exhibit 3.1
to the Company's Registration Statement on Form S-3,
Registration No.333-96369).
4.2 Amended and Restated By-Laws of Metretek Technologies, Inc.
(Incorporated by reference to Exhibit 3.3 to the Company's
Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998).
4.3 Specimen Common Stock Certificate (Incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on Form
S-18, Registration No. 33-44558).
4.4 Rights Agreement, dated as of December 2, 1991, between
Metretek Technologies, Inc. and American Securities Transfer,
Inc. (Incorporated by reference to Exhibit 10.6 to the
Company's Registration Statement on Form S-18, Registration
No. 33-44558).
4.5 Amendment No. 1 to Rights Agreement, dated as of March 23,
1998, by and between Metretek Technologies, Inc. and American
Securities Transfer & Trust, Inc. (Incorporated by reference
to Exhibit 2 to the Company's Form 8-A/A, Amendment No. 1
filed April 3, 1998).
4.6 Amendment No. 2 to Rights Agreement, dated as of December 9,
1999, by and between Metretek Technologies, Inc. and American
Securities Transfer & Trust, Inc. (Incorporated by reference
to Exhibit 1 to the Company's Form 8-A/A, Amendment No. 4
filed December 23, 1999).
4.7 Prototype - Basic Plan Document for Metretek - Southern Flow
Savings and Investment Plan.
4.8 Adoption Agreement for the Metretek - Southern Flow Savings
and Investment Plan.
4.9 Group Trust Agreement for the Metretek - Southern Flow Savings
and Investment Plan.
5.1 Pursuant to Item 8(a) of Form S-8, an opinion of counsel as to
the legality of the securities being registered is required
only with respect to original issuance securities. The common
stock being registered in this Form S-8 will not be issued by
the Company but will only be purchased in open market
transactions.
23.1 Consent of Deloitte & Touche LLP.
24.1 Powers of Attorney (included on the Signature Page of this
Registration Statement).
