Exhibit 10.14
MANAGEMENT SERVICES AGREEMENT
This Management Services Agreement ("Agreement") is made and entered into
as of September 21, 1999, by and between Quanta Services, Inc., a Delaware
corporation ("Company") and UtiliCorp United Inc., a Delaware corporation
("UtiliCorp").
RECITALS
A. The Company desires to enter into this Agreement whereby UtiliCorp will
provide certain management advice and services to the Company.
B. UtiliCorp is willing to provide such advice and services to assist the
Company in achieving its business objectives on the terms and conditions set
forth herein.
AGREEMENT
The parties agree as follows:
Section 1. Management Services.
To the extent mutually agreed upon by the parties hereto, UtiliCorp will
provide the following advice and services as reasonably requested from time to
time by the Company's senior management and Board of Directors:
1. Advice regarding corporate strategic planning;
2. Advice regarding the restructuring of the U.S. electric and gas
industries;
3. Advice regarding the restructuring and privatization of the global
utility industry;
4. Advice regarding development, evaluation and marketing of the
Company's products, services and capabilities (particularly the
development of gas construction skills and capabilities);
5. Identification of and assistance in pursuing opportunities to realize
benefits through Aquila Energy Corporation's and UtiliCorp Energy
Management's current and future relationships in the global utility
industry. This would include opportunities to cross-sell products and
capabilities, "lead" generation, and mutually beneficial shared
services;
6. Identification and evaluation of potential U.S. acquisition candidates
for the Company;
7. Identification and evaluation of business development opportunities
outside the United States (particularly, Canada, Australia, New
Zealand, and Western
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Europe), including strategic, financial and risk analysis in the
acquisition of other business by the Company;
8. Identification of potential opportunities for the Company to realize
additional business advantages by partnering with UtiliCorp's existing
foreign owned or controlled utility companies' internal construction
divisions;
9. Identification, evaluation and implementation of opportunities to
provide incremental value to the Company in key synergy areas with
UtiliCorp. These would include (but are not limited to) joint
purchasing of trucks, tools and equipment, shared equipment and
resources, safety and other training, rubber goods and other testing,
shared maintenance of major work equipment, shared systems such as
work management and resource dispatch, and pole testing/treatment
techniques;
10. Development of plans for the Company to share in UtiliCorp's growth
activities in the areas of utility acquisitions, power plant and
related infrastructure development, and telecommunication business
development;
11. Other ancillary services relating to those contained in paragraphs 1
through 10 above; and
12. Such other services as the Company's Board of Directors may reasonably
request from time to time.
UtiliCorp will identify and dedicate a team comprising members of
UtiliCorp's and its subsidiaries' management to implement the above services.
Section 2. Quarterly Presentation.
UtiliCorp will make a quarterly presentation to the Company's senior
management regarding the services being provided under this Agreement, and
discussing activities to be undertaken and services to be provided in the
future.
Section 3. Fee for Management Services.
In consideration of the advice and services rendered by UtiliCorp to the
Company pursuant to Section 1 hereof, the Company shall pay to UtiliCorp on a
quarterly basis in arrears a fee of $2,325,000. UtiliCorp shall submit to the
Company a quarterly invoice for the services provided to the Company and the fee
due to UtiliCorp.
Section 4. Mutual Access and Cooperation.
The parties hereto desire and agree to use their respective reasonable
efforts to provide to the other party reasonable access from time-to-time to
their respective representatives: (i) to discuss service capabilities, goals and
informational requirements as outlined in Section 1 of this Agreement; (ii) to
present for consideration by the other party proposals and opportunities for the
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provision of services pursuant hereto, (iii) for consultation with the other
party regarding acquisition and investment opportunities within the scope of
this Agreement or which would have a material effect upon the provision of
services contemplated hereby, (iv) to discuss matters in which such party has,
or may have, general expertise (which areas of expertise may include, without
limitation, commodity trading, origination, engineering and the financial
analysis, modeling and structuring of proposed transactions) and (v) otherwise
to explore and evaluate ways in which the Company and UtiliCorp might work
together to enhance the Company's business.
In connection with the foregoing, the parties hereto shall, as appropriate,
use reasonable efforts (i) to arrange meetings from time-to-time between their
respective representatives to discuss such matters, (ii) to provide to the other
party from time-to-time reasonable access to information pertinent to the
objectives of this Agreement and (iii) to otherwise enhance cooperation and
communication between UtiliCorp and its affiliates on the one hand and the
Company on the other hand to facilitate access to information and personnel,
subject, however, to limitations imposed by applicable law and existing
confidentiality obligations as well as internal policies regarding the
maintenance of the confidentiality of proprietary data and other commercially
sensitive information.
Section 5. Term and Termination.
This Agreement shall have a term of six (6) years, which can be extended at
the mutual agreement of the parties. Each party hereto may during the existence
of the arrangements between the Company and UtiliCorp engage in or have business
relations with competitors of the other parties and/or their affiliates. The
Company shall have the right to terminate this Agreement at any time if in the
reasonable judgment of the Company's Board of Directors changes in the nature of
the relationship between the Company and UtiliCorp makes effective provision of
the services to be provided hereunder unlikely, provided that the Company
consults with UtiliCorp at least sixty (60) days prior to such termination
regarding the reasons therefor and affords UtiliCorp the opportunity to consult
with and take such actions as are reasonably necessary to remedy the Company's
Board of Director's reason(s) for terminating this Agreement. If upon the
conclusion of the sixty (60) day period referenced in the preceding sentence the
parties are in good faith unable to agree to continue this Agreement, then this
Agreement shall be terminated and UtiliCorp shall promptly refund to the Company
any amounts paid to it pursuant to Section 3 of this Agreement for management
services rendered during such sixty (60) day period.
Section 6. Protection of Employees.
From and after the date hereof until the date one (1) year after the term
of this Agreement has expired, each party hereto shall not, and shall cause its
respective wholly owned subsidiaries not to, solicit to employ any of the
employees of the other party or its affiliates with whom the soliciting party or
its affiliates had contact in connection with the transactions contemplated
hereby; provided, however, that any such solicitation shall not be a breach of
this Section if (i) the personnel who performed such solicitation have no
knowledge of this Agreement or the transactions contemplated hereby and (ii)
none of the soliciting party's (or any of its affiliates') personnel who have
knowledge of this Agreement or the transactions contemplated hereby have
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actual knowledge of any such solicitation. The term "solicit to employ" shall
not be deemed to include general solicitations of employment not specifically
directed towards employees of a party hereto or its affiliates.
Section 7. Confidentiality.
In connection with the matters described in this Agreement, each party may
provide to the other certain information that is confidential, proprietary or
otherwise not generally available to the public. As a condition to furnishing
such information the parties agree as follows:
(a) Nondisclosure of Confidential Information. From and after the date
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hereof, until the date two years after the disclosure of the
particular Confidential Information (as defined below), such
Confidential Information shall be used solely in connection with the
matters contemplated by this Agreement, and the recipient of the
Confidential Information shall not disclose the Confidential
Information to any person other than those of its directors, officers,
employees, lenders, counsel, representatives and Affiliates, if any
(those such persons who actually receive any confidential information
hereunder being collectively, the "Representatives") who need to know
the Confidential Information. It is understood that (i) the
Representatives shall be informed of the confidential nature of the
Confidential Information and the requirement that it not be used other
than for the purposes described herein and (ii) in any event, the
party receiving Confidential Information shall be responsible for any
breach of this Section by any of its Representatives. Each party may
also disclose the Confidential Information in order to comply with any
applicable law, order, regulation or ruling or stock exchange rule.
The term "person" as used in this Section 7 shall be broadly
interpreted to include, without limitation, any corporation, company,
partnership, individual or other entity.
(b) Definition of "Confidential Information". As used herein,
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"Confidential Information" means all information that is furnished
under this Agreement by a party hereto, and which is confidential,
proprietary or otherwise not generally available to the public.
Notwithstanding the foregoing, the following will not constitute
Confidential Information for purposes of this Section: (i) information
that is or becomes generally available to the public other than as a
result of a breach of this Section by the party receiving such
information or its Representatives; (ii) information that, prior to
being furnished pursuant hereto, was already in the files of the party
receiving such information or its Representatives from another source
not known to be subject to any prohibition against transmitting the
information; or (iii) information that becomes available to the party
receiving such information or its Representatives from another source
not known to be subject to any prohibition against transmitting the
information.
(c) Return of Information. The written Confidential Information, except
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for that portion of the Confidential Information that may be found in
analyses, compilations, studies or other documents prepared by or for
the party receiving the Confidential Information, will be returned
promptly upon any request made
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during the two year period referred to in Section 7(a) above, and no
copies shall be retained by the party receiving the Confidential
Information or its Representatives. That portion of the Confidential
Information that may be found in analyses, compilations, studies or
other documents prepared by or for the party receiving the
Confidential Information, oral Confidential Information and written
Confidential Information not so requested or returned will be held by
the party receiving the Confidential Information and kept subject to
the terms of this Section, or destroyed.
(d) Remedies. Both parties acknowledge that remedies at law may be
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inadequate to protect the disclosing party against any actual or
threatened breach of this Agreement by the recipient, and without
prejudice to any other rights and remedies otherwise available to the
disclosing party, agree to the granting of injunctive relief in favor
of the disclosing party without proof of actual damages. If the
disclosing party is required to post a bond to obtain injunctive
relief, the parties agree that such bond shall not exceed One Thousand
Dollars ($1,000).
Section 8. No Authority to Bind; No Fiduciary Relationship.
Neither party hereto shall have the authority to bind or to purport to bind
the other party hereto. The parties agree that no employment, agency, joint
venture, partnership, advisory or fiduciary relationship shall be deemed to
exist or arise between them with respect to the transactions contemplated by
this Agreement; any such relationship shall exist only as expressly stated in
any future definitive agreements.
Section 9. Publicity.
Any press release or other public announcement regarding or relating to the
existence of this Agreement and its contents shall be mutually agreed upon by
the parties.
Section 10. Miscellaneous.
(a) Dispute Resolution. Any action, dispute, claim or controversy of any
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kind now existing or hereafter arising between the Company and
UtiliCorp arising out of, pertaining to this Agreement or the
transactions contemplated hereby ("Dispute") shall be resolved by
binding arbitration in accordance with the terms hereof. Any party
may, by summary proceedings, bring an action in court to compel
arbitration of any Dispute. Any arbitration shall be administered by
the American Arbitration Association ("AAA") in accordance with the
terms of this Section 10, the Commercial Arbitration Rules of the AAA,
and, to the maximum extent applicable, the Federal Arbitration Act.
Judgment on any award rendered by an arbitrator may be entered in any
court having jurisdiction. Any arbitration shall be conducted before
a panel of three arbitrators. Such panel shall consist of one person
designated by the Company, one designated by UtiliCorp and one
designated by their designees. The arbitrators designated by the
parties are not required to be neutral. If a party fails to designate
an arbitrator within 10 calendar days after the filing of the Dispute
with the AAA, or the parties' arbitrators fail to
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designate a third arbitrator within 30 calendar days after the later
of their appointments, such arbitrator shall be appointed by the AAA.
An arbitration proceeding hereunder shall be concluded within 180
calendar days of the filing of the Dispute with the AAA. Arbitration
proceedings shall be conducted in Kansas City, Missouri. Arbitrators
shall be empowered to award sanctions and to take such other actions
as they deem necessary, to the same extent a judge could impose
sanctions or take such other actions pursuant to the Federal Rules of
Civil Procedure and applicable law. No award by the arbitrators shall
assess consequential, punitive or exemplary damages but may assess
costs and expenses in a manner deemed equitable. The arbitrators shall
make specific written findings of fact and conclusions of law. The
decision of the arbitrators shall be final and binding on each party.
(b) Communications. All notices and other communications provided for or
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permitted hereunder shall be made in writing by telecopy, courier
service or personal delivery:
i. if to UtiliCorp, initially at the address set forth on the
signature page of this Agreement, and
ii. if to the Company, initially at the address set forth on the
signature page of this Agreement,
and thereafter in each case at such other address, notice of which is
given in accordance with the provisions of this Section 10.
All such notices and communications shall be deemed to have been received
at the time delivered by hand, if personally delivered; when receipt
acknowledged, if telecopied or sent via Internet electronic mail; and when
actually received, if sent by any other means.
(c) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed
to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
(d) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning
hereof.
(e) Governing Law. The laws of the State of Missouri shall govern this
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Agreement without regard to principles of conflict of laws.
(f) Severability of Provisions. Any provision of this Agreement which is
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prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
or affecting or impairing the validity or enforceability of such
provision in any other jurisdiction, and the parties shall
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thereafter adopt such other, enforceable provisions as are necessary
to ensure that the parties realize the benefit of their bargain that
would otherwise be adversely affected by any such prohibition or
unenforceability.
(g) Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter, except for provisions in other agreements between the
parties dealing with confidentiality and the protection of employees,
which provisions shall continue in full force and effect independently
of this Agreement.
(h) Attorney's Fees. In any action or proceeding brought to enforce any
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provision of this Agreement or an arbitration award, the successful
party shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available remedy.
(i) Amendment. This Agreement may be amended only by means of a written
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amendment signed by the Company and UtiliCorp.
(j) No Presumption. In the event any claim is made by a party relating to
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any conflict, omission, or ambiguity in this Agreement, no presumption
or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a
particular party or its counsel.
(k) References to this Agreement. References to numbered or lettered
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articles, section, and subsections refer to articles, sections, and
subsections, respectively, of this Agreement unless otherwise
expressly stated.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
QUANTA SERVICES, INC.
0000 Xxxx Xxx Xxxx., Xxxxx 0000
Xxxxxxx, Xxxxx 00000
/s/ XXXX XXXXXXX
By: ___________________________________________
Name: Xxxx Xxxxxxx
Title: Vice President and General Counsel
UTILICORP UNITED INC.
Twenty Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
/s/ XXXXXX X. XXXXX
By: ___________________________________________
Name: Xxxxxx X. Xxxxx
Title: President
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