EXHIBIT 4.8
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
December 1, 2001, is between Quanta Services, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as rights agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of March 8, 2000 (the "Rights Agreement"); and
WHEREAS, pursuant thereto and the provisions of the certificate of
incorporation of the Company, the Company distributed a Right (as defined in the
Rights Agreement) to each holder of common stock, limited vote common stock and
series A convertible preferred stock of the Company; and
WHEREAS, the Company desires to amend the Rights Agreement pursuant to
Section 27 of the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 1(g).
Section 1 of the Rights Agreement is amended by deleting subsection
(g) thereof and replacing it with the following:
(g) "Series B Preferred Stock Equivalents" shall have the meaning
set forth in Section 11(a)(iii) hereof.
2. Amendment of Section 1(k).
Section 1 of the Rights Agreement is amended by deleting subsection
(k) thereof and replacing it with the following:
(k) "Exempt Person" shall mean (i) the Company or any Subsidiary
(as such term is hereinafter defined) of the Company, in each case
including, without limitation, in its fiduciary capacity, or any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
entity or trustee holding Common Stock for or pursuant to the terms of any
such plan or for the purpose of funding any such plan or funding other
employee benefits for employees of the Company or of any Subsidiary of the
Company, and (ii) the corporation known as of the date hereof as UtiliCorp
United Inc. ("UtiliCorp") or any Affiliate or Associate of UtiliCorp,
unless and until (1) UtiliCorp or such Affiliate or Associate shall be
deemed to be the Beneficial Owner of more than 39.0% of the total number of
shares of Common Stock outstanding (on an as converted basis), assuming
full conversion of all securities (provided, however, if UtiliCorp or such
Affiliate or Associate shall be deemed to be the Beneficial Owner of more
than
39.0% of such number of shares of Common Stock prior to the earlier of
notice to UtiliCorp of or first public announcement of the December 2001
amendments to the Agreement, UtiliCorp or such Affiliate or Associate will
continue to qualify as an Exempt Person unless and until UtiliCorp or such
Affiliate or Associate shall, at any time after such earlier time, become
the Beneficial Owner of any additional shares of Common Stock (other than
pursuant to a dividend or distribution paid or made by the Company on the
outstanding Common Stock or Series A Preferred Stock or pursuant to a split
or subdivision of the outstanding Common Stock or Series A Preferred
Stock), unless, upon becoming the Beneficial Owner of such additional
shares of Common Stock, UtiliCorp or such Affiliate or Associate is not
then the Beneficial Owner of 39.0% of the total number of shares of Common
Stock outstanding (on an as converted basis), assuming full conversion of
all securities), (2) UtiliCorp or such Affiliate or Associate makes a
public announcement of the intent to commence a tender or exchange offer
which would result in UtiliCorp, or any Affiliate or Associate of
UtiliCorp, becoming the Beneficial Owner of more than 49.9% of the total
number of shares of Common Stock outstanding (on an as converted basis),
assuming full conversion of all securities and full exercise of all
outstanding rights, options and warrants to acquire the Common Stock, or
(3) there is a UtiliCorp Change of Control.
3. Amendment of Section 1(ee).
Section 1 of the Rights Agreement is amended by deleting subsection
(ee) thereof and replacing it with the following:
(ee) Intentionally Omitted.
4. Amendment of Section 1.
Section 1 of the Rights Agreement is amended by adding two new
subsections, subsection (ii) and subsection (jj), at the end thereof which shall
read in their entirety as follows:
(ii) "Acquiring Person Rights" shall have the meaning set forth
in Section 11(a)(ii) hereof.
(jj) "Series C Preferred Stock" shall mean the Series C Junior
Convertible Preferred Stock, par value $0.00001 per share, of the Company
having the rights and preferences set forth in the Form of Certificate of
Designation attached to this Agreement as Exhibit D.
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5. Amendment of Section 3(a).
Section 3(a) of the Rights Agreement is amended by deleting the second
sentence thereof and replacing it with the following:
As soon as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign and the Company will
send or cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder of Common
Stock and Series A Preferred Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of
the Company, a Right Certificate, in substantially the form of Exhibit B
hereto (a "Right Certificate"), evidencing one Right (subject to adjustment
as provided herein) for each share of Common Stock or Series A Preferred
Stock (on an as converted basis) so held.
6. Amendment of Section 3(c).
Section 3(c) of the Rights Agreement is amended by deleting the final
sentence of the stock certificate legend provided for therein.
7. Amendment of Section 7(c).
Section 7(c) of the Rights Agreement is amended by adding the
following at the end thereof:
Notwithstanding the foregoing, upon the due tender of a Right Certificate
representing Acquiring Person Rights upon or after a Flip-In Event, the
Company shall cause the delivery of certificates representing shares of
Series C Preferred Stock, rather than shares of Series B Preferred Stock,
to, or upon the order of, the holder of the Rights pursuant to the terms
hereof.
8. Amendment of Section 11(a)(ii).
Section 11(a) of the Rights Agreement is amended by deleting
subsection (ii) thereof and replacing it with the following:
(ii) Subject to Section 24 of this Agreement, in the event any
Person becomes an Acquiring Person (the first occurrence of such event
being referred to hereinafter as the "Flip-In Event"), then (A) the
Purchase Price shall be adjusted to be the Purchase Price in effect
immediately prior to the Flip-In Event multiplied by the number of one one-
thousandths of a share of Series B Preferred Stock for which a Right was
exercisable immediately prior to such Flip-In Event, whether or not such
Right was then exercisable, and (B) each holder of a Right, except as
otherwise provided in this Section 11(a)(ii) and Section 11(a)(iii) hereof,
shall thereafter have the right to receive, upon exercise thereof at a
price equal to the Purchase Price (as so adjusted), in
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accordance with the terms of this Agreement, such number of one one-
thousandths of a share of Series B Preferred Stock as shall equal the
result obtained by dividing the Purchase Price (as so adjusted) by 50% of
the current per share market price of the Common Stock (determined pursuant
to Section 11(d) hereof) on the date of such Flip-In Event; provided,
however, that the Purchase Price (as so adjusted) and the number of shares
of Series B Preferred Stock so receivable upon exercise of a Right shall,
following the Flip-In Event, be subject to further adjustment as
appropriate in accordance with Section 11(f) hereof. Notwithstanding
anything in this Agreement to the contrary, however, from and after the
Flip-In Event, any Rights ("Acquiring Person Rights") that are beneficially
owned by (x) any Acquiring Person (or any Affiliate or Associate of any
Acquiring Person), (y) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who becomes a transferee after the Flip-In Event or
(z) a transferee of any Acquiring Person (or any such Affiliate or
Associate) who became a transferee prior to or concurrently with the Flip-
In Event pursuant to either (I) a transfer from the Acquiring Person to
holders of its equity securities or to any Person with whom it has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (II) a transfer which the Board of Directors has
determined is part of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of this paragraph, and
subsequent transferees of such Persons, shall not be exercisable for Series
B Preferred Stock pursuant to the immediately preceding sentence, but
rather shall entitle the holder thereof to receive, upon exercise thereof
at a price equal to the Purchase Price (as adjusted pursuant to clause (A)
of the first sentence of this subparagraph (ii)), in accordance with the
terms of this Agreement, such number of one one-thousandths of a share of
Series C Preferred Stock as shall equal the number of one one-thousandths
of a share of Series B Preferred Stock the holder thereof would otherwise
receive upon exercise of such Rights pursuant to the immediately preceding
sentence; provided, however, that the Purchase Price (as so adjusted) and
the number of shares of Series C Preferred Stock so receivable upon
exercise of an Acquiring Person Right shall, following the Flip-In Event,
be subject to further adjustment as appropriate in accordance with Section
11(f) hereof. The Company shall use all reasonable efforts to ensure that
the provisions of this Section 11(a)(ii) are complied with, but shall have
no liability to any holder of Right Certificates or other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder.
From and after the occurrence of an event specified in Section 13(a)
hereof, any Rights that theretofore have not been exercised pursuant to the
first sentence of this Section 11(a)(ii) shall thereafter be exercisable
only in accordance with Section 13 and not pursuant to the first sentence
of this Section 11(a)(ii).
9. Amendment of Section 11(a)(iii).
Section 11(a) of the Rights Agreement is amended by deleting
subsection (iii) thereof and replacing it with the following:
(iii) In the event that there shall not be sufficient shares of
Series B Preferred Stock issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in accordance with
the first sentence of the foregoing subparagraph (ii), the Board of
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Directors shall, with respect to such deficiency, to the extent permitted
by applicable law and any material agreements then in effect to which the
Company is a party (A) determine the excess (such excess, the "Spread") of
(1) the value of the shares of Series B Preferred Stock issuable upon the
exercise of a Right in accordance with the first sentence of the foregoing
subparagraph (ii) (the "Current Value") over (2) the Purchase Price (as
adjusted in accordance with the first sentence of the foregoing
subparagraph (ii)), and (B) with respect to each Right (other than
Acquiring Person Rights), make adequate provision to substitute for the
shares of Series B Preferred Stock issuable in accordance with the first
sentence of the foregoing subparagraph (ii) upon exercise of the Right and
payment of the Purchase Price (as adjusted in accordance therewith), (1)
cash, (2) a reduction in such Purchase Price, (3) other equity securities
of the Company (including, without limitation, shares or fractions of
shares of preferred stock which, by virtue of having dividend, voting and
liquidation rights substantially comparable to those of the shares of
Series B Preferred Stock, are deemed in good faith by the Board of
Directors to have substantially the same value as the shares of Series B
Preferred Stock (such shares or fractions of shares of stock are
hereinafter referred to as "Series B Preferred Stock Equivalents")), (4)
debt securities of the Company, (5) other assets, or (6) any combination of
the foregoing, having a value which, when added to the value of the shares
of Series B Preferred Stock issued upon exercise of such Right, shall have
an aggregate value equal to the Current Value (less the amount of any
reduction in such Purchase Price), where such aggregate value has been
determined by the Board of Directors upon the advice of a nationally
recognized investment banking firm selected in good faith by the Board of
Directors; provided, however, that if the Company shall not make adequate
provision to deliver value pursuant to clause (B) above within thirty (30)
days following the Flip-In Event (the date of the Flip-In Event being the
"Section 11(a)(ii) Trigger Date"), then the Company shall be obligated to
deliver, to the extent permitted by applicable law and any material
agreements then in effect to which the Company is a party, upon the
surrender for exercise of such a Right and without requiring payment of
such Purchase Price, shares of Series B Preferred Stock (to the extent
available), and then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. To the extent that the Company
determines that some action need be taken pursuant to the first sentence of
this Section 11(a)(iii), the Company shall provide, subject to Section
11(a)(ii) hereof and the last sentence of this Section 11(a)(iii) hereof,
that such action shall apply uniformly to all outstanding Rights (other
than Acquiring Person Rights). For purposes of this Section 11(a)(iii),
the value of the shares of Common Stock and the shares of Series B
Preferred Stock shall be the current per share market price (as determined
pursuant to Section 11(d)(i) and (ii), respectively) on the Section
11(a)(ii) Trigger Date and the per share or fractional value of any "Series
B Preferred Stock Equivalent" shall be deemed to equal the current per
share market price of the Common Stock. The Board of Directors of the
Company may, but shall not be required to, establish procedures to allocate
the right to receive shares of Series B Preferred Stock upon the exercise
of the Rights (other than Acquiring Person Rights) among holders of such
Rights pursuant to this Section 11(a)(iii).
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10. Amendment of Section 13(a).
Section 13 of the Rights Agreement is amended by deleting subsection
(a) thereof and replacing it with the following:
(a) In the event, directly or indirectly, at any time after the
Flip-In Event (i) the Company shall consolidate with or shall merge into
any other Person, (ii) any Person shall merge with and into the Company and
the Company shall be the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common Stock,
Series A Preferred Stock or both shall be changed into or exchanged for
stock or other securities of any other Person (or of the Company) or cash
or any other property, or (iii) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power aggregating
50% or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the Company
or one or more wholly-owned Subsidiaries of the Company), then upon the
first occurrence of such event, proper provision shall be made so that: (A)
each holder of a Right (other than Acquiring Person Rights) shall
thereafter have the right to receive, upon the exercise thereof at the
Purchase Price (as theretofore adjusted in accordance with the first
sentence of Section 11(a)(ii) hereof), in accordance with the terms of this
Agreement and in lieu of shares of Series B Preferred Stock, such number of
validly authorized and issued, fully paid, non-assessable and freely
tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of
first refusal or other adverse claims, as shall equal the result obtained
by dividing the Purchase Price (as theretofore adjusted in accordance with
the first sentence of Section 11(a)(ii) hereof) by 50% of the current per
share market price of the Common Stock of such Principal Party (determined
pursuant to Section 11(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; provided, however, that the
Purchase Price (as theretofore adjusted in accordance with the first
sentence of Section 11(a)(ii) hereof) and the number of shares of Common
Stock of such Principal Party so receivable upon exercise of such a Right
shall be subject to further adjustment as appropriate in accordance with
Section 11(f) hereof to reflect any events occurring in respect of the
Common Stock of such Principal Party after the occurrence of such
consolidation, merger, sale or transfer; (B) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the relevant obligations and
duties of the Company pursuant to this Agreement; (C) the term "Company"
shall thereafter be deemed to refer to such Principal Party; and (D) such
Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of its shares of Common Stock in
accordance with Section 9 hereof) in connection with such consummation of
any such transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in
relation to the shares of its Common Stock thereafter deliverable upon the
exercise of the Rights (other than Acquiring Person Rights); provided that,
upon the subsequent occurrence of any consolidation, merger, sale
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or transfer of assets or other extraordinary transaction in respect of such
Principal Party, each holder of such a Right shall thereupon be entitled to
receive, upon exercise of such a Right and payment of the Purchase Price as
provided in this Section 13(a), such cash, shares, rights, warrants and
other property which such holder would have been entitled to receive had
such holder, at the time of such transaction, owned the Common Stock of the
Principal Party receivable upon the exercise of a Right pursuant to this
Section 13(a), and such Principal Party shall take such steps (including,
but not limited to, reservation of shares of stock) as may be necessary to
permit the subsequent exercise of the Rights in accordance with the terms
hereof for such cash, shares, rights, warrants and other property.
11. Amendment of Section 13(c).
Section 13 of the Rights Agreement is amended by deleting subsection
(c) thereof and replacing it with the following:
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) hereof unless prior thereto
the Company and the Principal Party involved therein shall have executed
and delivered to the Rights Agent an agreement confirming that the
requirements of Sections 13(a) and (b) hereof shall promptly be performed
in accordance with their terms and that such consolidation, merger, sale or
transfer of assets shall not result in a default by the Principal Party
under this Agreement as the same shall have been assumed by the Principal
Party pursuant to Sections 13(a) and (b) hereof and providing that, as soon
as practicable after executing such agreement pursuant to this Section 13,
the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, with respect to the Rights (other than
Acquiring Person Rights) and the securities purchasable upon exercise
of the Rights (other than Acquiring Person Rights) on an appropriate
form, use its best efforts to cause such registration statement to
become effective as soon as practicable after such filing and use its
best efforts to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date and similarly comply with
applicable state securities laws;
(ii) use its best efforts, if the Common Stock of the
Principal Party shall be listed or admitted to trading on the New York
Stock Exchange or on another national securities exchange, to list or
admit to trading (or continue the listing of) the Rights (other than
Acquiring Person Rights) and the securities purchasable upon exercise
of the Rights (other than Acquiring Person Rights) on the New York
Stock Exchange or such securities exchange, or, if the Common Stock of
the Principal Party shall not be listed or admitted to trading on the
New York Stock Exchange or a national securities exchange, to cause
the Rights (other
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than Acquiring Person Rights) and the securities receivable upon
exercise of the Rights (other than Acquiring Person Rights) to be
authorized for quotation on NASDAQ or on such other system then in
use;
(iii) deliver to holders of the Rights (other than
Acquiring Person Rights) historical financial statements for the
Principal Party which comply in all respects with the requirements for
registration on Form 10 (or any successor form) under the Exchange
Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Common Stock of the Principal
Party subject to purchase upon exercise of outstanding Rights (other
than Acquiring Person Rights).
12. Amendment of Section 13(d).
Section 13 of the Rights Agreement is amended by deleting subsection
(d) thereof and replacing it with the following:
(d) In case the Principal Party has provision in any of its
authorized securities or in its certificate of incorporation or by-laws or
other instrument governing its affairs, which provision would have the
effect of (i) causing such Principal Party to issue (other than to holders
of Rights (excluding Acquiring Person Rights) pursuant to this Section 13),
in connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, shares of Common Stock or
functional equivalents thereto of such Principal Party at less than the
then current market price per share thereof (determined pursuant to Section
11(d) hereof) or securities exercisable for, or convertible into, Common
Stock or functional equivalents thereto of such Principal Party at less
than such then current market price, or (ii) providing for any special
payment, tax or similar provision in connection with the issuance of the
Common Stock of such Principal Party pursuant to the provisions of Section
13, then, in such event, the Company hereby agrees with each holder of
Rights that it shall not consummate any such transaction unless prior
thereto the Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing that the
provision in question of such Principal Party shall have been canceled,
waived or amended, or that the authorized securities shall be redeemed, so
that the applicable provision will have no effect in connection with, or as
a consequence of, the consummation of the proposed transaction.
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13. Amendment of Section 14.
Section 14 of the Rights Agreement is amended by adding a new
subsection, subsection (e), at the end thereof which shall read in its entirety
as follows:
(e) The Company shall not be required to issue fractions of
Series C Preferred Stock (other than fractions which are integral multiples
of one one-thousandth of a share of Series C Preferred Stock) or to
distribute certificates which evidence fractional shares of Series C
Preferred Stock (other than fractions which are integral multiples of one
one-thousandth of a share of Series C Preferred Stock) upon the exercise of
Rights. Interests in fractions of Series C Preferred Stock in integral
multiples of one one-thousandth of a share of Series C Preferred Stock may,
at the election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a depositary
selected by it; provided, that such agreement shall provide that the
holders of such depositary receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners of the
Series C Preferred Stock represented by such depositary receipts.
14. Amendment of Section 20(e).
Section 20 of the Rights Agreement is amended by deleting subsection
(e) thereof and replacing it with the following:
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights or any change or adjustment in the terms of
the Rights provided for in Sections 3, 11, 13, 23 and 24, or the
ascertaining of the existence of facts that would require any such change
or adjustment (except with respect to the exercise of Rights evidenced by
Right Certificates after receipt of a certificate furnished pursuant to
Section 12, describing such change or adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Series B Preferred Stock or
other securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any shares of Series B Preferred Stock or
other securities will, when issued, be validly authorized and issued, fully
paid and nonassessable.
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15. Amendment of Section 20(j).
Section 20 of the Rights Agreement is amended by deleting subsection
(j) thereof and replacing it with the following:
(j) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate contained in the
form of assignment or the form of election to purchase set forth on the
reverse thereof, as the case may be, has not been completed to certify
whether or not the holder is an Acquiring Person (or an Affiliate or
Associate thereof) or a transferee thereof, the Rights Agent shall not take
any further action with respect to such requested exercise or transfer
without first consulting with the Company.
16. Amendment of Section 24(a).
Section 24 of the Rights Agreement is amended by deleting subsection
(a) thereof and replacing it with the following:
(a) The Board of Directors of the Company may, at its option, at
any time after the Flip-In Event, exchange all or part of the then
outstanding and exercisable Rights (other than Acquiring Person Rights) for
Series B Preferred Stock at an exchange ratio of one one-thousandth of a
share of Series B Preferred Stock per Right (such amount per Right being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after an Acquiring Person shall have become the
Beneficial Owner of shares of Common Stock aggregating 50% or more of the
shares of Common Stock then outstanding. From and after the occurrence of
an event specified in Section 13(a) hereof, any Rights that theretofore
have not been exchanged pursuant to this Section 24(a) shall thereafter be
exercisable only in accordance with Section 13 and may not be exchanged
pursuant to this Section 24(a). The exchange of the Rights by the Board of
Directors may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
17. Amendment of Section 24(b).
Section 24 of the Rights Agreement is amended by deleting subsection
(b) thereof and replacing it with the following:
(b) Immediately upon the effectiveness of the action of the Board
of Directors of the Company ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action and without
any notice, the right to exercise such Rights shall terminate and the only
right thereafter of a holder of such Rights shall be to receive that number
of shares of Series B Preferred Stock equal to the number
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of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company shall promptly mail a
notice of any such exchange to all of the holders of the Rights so
exchanged at their last addresses as they appear upon the registry books of
the Rights Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of the
shares of Series B Preferred Stock for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the
number of Rights (other than Acquiring Person Rights) held by each holder
of Rights.
18. Amendment of Section 24(c).
Section 24 of the Rights Agreement is amended by deleting subsection
(c) thereof and replacing it with the following:
(c) The Company may at its option substitute, and, in the event
that there shall not be sufficient shares of Series B Preferred Stock
issued but not outstanding or authorized but unissued to permit an exchange
of Rights for Series B Preferred Stock as contemplated in accordance with
this Section 24, the Company shall substitute to the extent of such
insufficiency, for each share of Series B Preferred Stock or fraction
thereof that would otherwise be issuable upon exchange of a Right, a number
of equivalent preferred shares (as such term is defined in Section 11(b))
such that the current per share market price (determined pursuant to
Section 11(d) hereof) of one equivalent preferred share multiplied by such
number or fraction is equal to the current per share market price of one
share of Series B Preferred Stock (determined pursuant to Section 11(d)
hereof) as of the date of such exchange.
19. Amendment of Section 30.
Section 30 of the Rights Agreement is amended by deleting subsection
(a) thereof and replacing it with the following:
(a) The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to exercise
the rights and powers specifically granted to the Board of Directors of the
Company or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right
and power to (i) interpret the provisions of this Agreement, and (ii) make
all determinations deemed necessary or advisable for the administration of
this Agreement (including, without limitation, a determination whether: to
exchange the outstanding Rights for Series B Preferred Stock pursuant to
Section 24; to redeem or not redeem the Rights; or to amend or not to amend
this Agreement). All such actions,
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calculations, interpretations and determinations that are done or made by
the Board of Directors of the Company in good faith, shall be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights, as such, and all other parties.
20. Amendment to Exhibits.
The Exhibits to the Rights Agreement are amended by (i) deleting
Exhibit B thereto and replacing it with the new form of Exhibit B which is
attached hereto and (ii) adding thereto a new Exhibit, Exhibit D, as the final
Exhibit which shall read in its entirety as attached hereto.
21. Effectiveness.
This Amendment shall be deemed effective as of the date hereof as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
22. Miscellaneous.
This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal, or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
QUANTA SERVICES, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President - General Counsel
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as rights agent
By:
----------------------------------
Name:
Title:
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EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R - __________
NOT EXERCISABLE AFTER MARCH 8, 2010 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.01 PER RIGHT AND TO EXCHANGE ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
QUANTA SERVICES, INC.
This certifies that ______________________________________ or
registered assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of March 8, 2000, as
the same may be amended from time to time (the "Rights Agreement"), between
Quanta Services, Inc., a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 p.m., New York City time,
on March 8, 2010 at the office or agency of the Rights Agent designated for such
purpose, or of its successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series B Junior Participating Preferred Stock, par value
$0.00001 per share (the "Series B Preferred Stock"), of the Company at a
purchase price of $230.00 per one one-thousandth of a share of Series B
Preferred Stock (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed; provided,
however, that to take into account the 3 for 2 stock dividend payable on April
7, 2000, the Purchase Price shall, on April 7, 2000, automatically and without
any notice, certificate or other action by or to the Company, Rights Agent or
holders of the Rights (under Section 12 of the Rights Agreement or otherwise),
be $153.33. The number of Rights evidenced by this Rights Certificate (and the
number of one one-thousandths of a share of Series B Preferred Stock which may
be purchased upon exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of __________, based on the
Series B Preferred Stock as constituted at such date. As provided in the Rights
Agreement, the Purchase Price, the number of one one-thousandths of a share of
Series B Preferred Stock (or other securities or property) which may be
purchased upon the exercise of the Rights and the number of Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive
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offices of the Company and the above-mentioned office or agency of the Rights
Agent. The Company will mail to the holder of this Right Certificate a copy of
the Rights Agreement without charge after receipt of a written request therefor.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Series B Preferred Stock as the Rights evidenced
by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a redemption
price of $0.01 per Right or (ii) may be exchanged in whole or in part for shares
of Series B Preferred Stock.
No fractional shares of Preferred Stock will be issued upon the
exercise or exchange of any Right or Rights evidenced hereby (other than
fractions of Preferred Stock which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depository receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the Series
B Preferred Stock or of any other securities of the Company which may at any
time be issuable on the exercise or exchange hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement) or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised or exchanged as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
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WITNESS the facsimile signature of the Chief Executive Officer and the
Secretary of the Company and its corporate seal.
Dated as of _________________.
QUANTA SERVICES, INC.
By:
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Chief Executive Officer
ATTEST:
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Secretary
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent
By:
----------------------------------------
Name:
--------------------------------------
Its:
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FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH
HOLDER DESIRES TO TRANSFER THE RIGHT CERTIFICATE)
FOR VALUE RECEIVED ___________________________________ hereby sells,
assigns and transfers unto ___________________________________________________
(Please print name and address of transferee)
_____________ Rights represented by this Right Certificate, together with all
right, title and interest therein, and does hereby irrevocably constitute and
appoint _________________________________________ Attorney, to transfer said
Rights on the books of the within-named Company, with full power of
substitution.
Dated:
------------------------------------
------------------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a bank, trust company, broker, dealer
or other eligible institution participating in a recognized signature guarantee
medallion program.
(To be completed)
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are ______ [or] are not ________ beneficially owned by, were
________ [or] were not ________ acquired by the undersigned from, and are
________ [or] are not ________ being assigned to an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement). (Please
Xxxx with an X as appropriate)
------------------------------
Signature
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FORM OF REVERSE SIDE OF RIGHT CERTIFICATE - (CONTINUED)
FORM OF ELECTION TO PURCHASE
(TO BE EXECUTED IF HOLDER DESIRES TO EXERCISE
RIGHTS REPRESENTED BY THE RIGHTS CERTIFICATE)
To Quanta Services, Inc.
The undersigned hereby irrevocably elects to exercise
___________________________ Rights represented by this Right Certificate to
purchase the shares of Series B Preferred Stock (or other securities or
property) issuable upon the exercise of such Rights and requests that
certificates for such shares of Series B Preferred Stock (or such other
securities) be issued in the name of:
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number
-------------------------------------------------------------------------------
(Please print name and address)
-------------------------------------------------------------------------------
Dated:
---------------------------------
---------------------------------------
Signature
(Signature must conform to holder specified on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a bank, trust company, broker, dealer
or other eligible institution participating in a recognized signature guarantee
medallion program.
(To be completed)
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The undersigned certifies that the Rights evidenced by this Right
Certificate are ________ [or] are not ________ beneficially owned by, and were
________ [or] were not ________ acquired by the undersigned from, an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement). (Please Xxxx with an X as appropriate)
-----------------------------------
Signature
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NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, such Assignment or Election to Purchase will not be honored.
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EXHIBIT D
FORM OF
CERTIFICATE OF DESIGNATION
OF
SERIES C JUNIOR CONVERTIBLE PREFERRED STOCK
OF
QUANTA SERVICES, INC.
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
QUANTA SERVICES, INC., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), in
accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Restated Certificate of Incorporation of
the said Corporation, a committee of the Board of Directors of the Corporation,
pursuant to the authority conferred upon the committee by the said Board of
Directors, adopted the following resolution creating a series of 1,000,000
shares of Preferred Stock designated as "Series C Junior Convertible Preferred
Stock":
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of the Restated
Certificate of Incorporation and the authority conferred upon this committee of
the Board of Directors by the Board of Directors, a series of Preferred Stock,
par value $0.00001 per share, of the Corporation be and hereby is created, and
that the designation and number of shares thereof and the voting and other
powers, preferences and relative, participating, optional or other rights of the
shares of such series and the qualifications, limitations and restrictions
thereof are as follows:
SERIES C JUNIOR CONVERTIBLE PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred
Stock that shall be designated as "Series C Junior Convertible Preferred Stock,"
and the number of shares constituting such series shall be 1,000,000. Such
number of shares may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the number of shares
of Series C Junior Convertible Preferred Stock to less than the number of shares
then issued and outstanding plus the number of shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
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2. Dividends. The holders of shares of Series C Junior Convertible
Preferred Stock shall not be entitled to receive any dividends.
3. Voting Rights. The holders of shares of Series C Junior
Convertible Preferred Stock shall not be entitled to vote, except as otherwise
required by applicable law. In each such matter where applicable law affords
the holders of Series C Junior Convertible Preferred Stock the right to vote,
each share of Series C Junior Convertible Preferred Stock shall entitle the
holder thereof to one vote.
4. Reacquired Shares. Any shares of Series C Junior Convertible
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof. All such
shares shall upon their retirement become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
any conditions and restrictions on issuance set forth herein.
5. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, voluntary or otherwise, no distribution shall be made to the
holders of shares of stock ranking junior upon liquidation, dissolution or
winding up to the Series C Junior Convertible Preferred Stock unless, prior
thereto, the holders of shares of Series C Junior Convertible Preferred Stock
shall have received an amount per share (the "Series C Liquidation Preference")
equal to $10.00.
(b) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series C Liquidation Preference and
the liquidation preferences of all other classes and series of stock of the
Corporation, if any, that rank on a parity with the Series C Junior Convertible
Preferred Stock in respect thereof, then the assets available for such
distribution shall be distributed ratably to the holders of the Series C Junior
Convertible Preferred Stock and the holders of such parity shares in proportion
to their respective liquidation preferences.
(c) Neither the merger or consolidation of the Corporation into or
with another entity nor the merger or consolidation of any other entity into or
with the Corporation shall be deemed to be a liquidation, dissolution or winding
up of the Corporation within the meaning of this Section 5.
6. No Redemption. Shares of Series C Junior Convertible Preferred
Stock shall not be subject to redemption by the Corporation.
7. Conversion.
(a) Each whole share of Series C Junior Convertible Preferred Stock is
convertible, at any time from and after the thirtieth day following the
conclusion of the next annual meeting of stockholders of the Corporation
following the initial issuance of any shares of Series C Junior Convertible
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Preferred Stock (provided, however, such date shall be extended to the first
anniversary of such thirtieth day if prior thereto any person has become an
"Acquiring Person" (as defined in the Rights Agreement, dated as of March 8,
2000, between the Corporation and American Stock Transfer & Trust Company, as
rights agent, as such may be amended from time to time)), at the option of the
holder thereof, into one thousand (as such may be adjusted from time to time
pursuant to Section 7(b) hereof, the "Conversion Ratio") shares of Common Stock,
par value $0.00001 per share, of the Corporation (the "Common Stock").
(b) If the Corporation shall at any time or from time to time (i)
declare and pay any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
Conversion Ratio in effect immediately prior to such event shall be adjusted by
multiplying such Conversion Ratio by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. Any adjustments made pursuant to
this Section 7(b) shall become effective on the date of the respective dividend,
subdivision or combination. Such adjustments shall be made successively.
(c) Before any holder of Series C Junior Convertible Preferred Stock
shall be entitled to convert the same into Common Stock, such holder shall
surrender the certificate or certificates for such Series C Junior Convertible
Preferred Stock to the Corporation at the Corporation's principal office, or at
the office of any transfer agent appointed by the Corporation, which certificate
or certificates, if the Corporation shall so request, shall be duly endorsed to
the Corporation or in blank, and shall give written notice to the Corporation
that the holder elects to convert such shares of Series C Junior Convertible
Preferred Stock into Common Stock and shall state in such notice the name or
names in which he wishes the certificate or certificates for Common Stock to be
issued.
(d) The Corporation will, as soon as practicable after such surrender
of certificates for Series C Junior Convertible Preferred Stock accompanied by
the written notice above prescribed, issue and deliver or cause to be issued and
delivered, to the holder or to his nominee or nominees, certificates for the
number of shares of Common Stock to which the holder shall be entitled. Subject
to the following provisions of this Section, such conversion shall be deemed to
have been made as of the date of such surrender of the Series C Junior
Convertible Preferred Stock to be converted, and the person or persons entitled
to receive the Common Stock issuable upon conversion of such Series C Junior
Convertible Preferred Stock shall be treated for all purposes as the record
holder or holders of such Common Stock on such date.
(e) As soon as practicable after the surrender of a certificate
representing shares of Series C Junior Convertible Preferred Stock that is
converted in part, the Corporation shall issue or cause to be issued for the
holder a new certificate representing shares of Series C Junior Convertible
Preferred Stock equal in number to the unconverted portion of the shares of
Series C Junior Convertible Preferred Stock represented by the certificate so
surrendered.
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(f) The Corporation shall reserve and keep available, out of its
authorized and unissued Common Stock, solely for the purpose of effecting the
conversion of the Series C Junior Convertible Preferred Stock, such number of
shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all shares of Series C Junior Convertible Preferred Stock from
time to time outstanding.
(g) The Corporation will pay any and all issue and other taxes (other
than taxes based on income) that may be payable in respect of any issuance or
delivery of shares of Common Stock on conversion of the Series C Junior
Convertible Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involving the issuance and delivery of Common Stock in a name other
than that in which the Series C Junior Convertible Preferred Stock so converted
was registered, and no such issuance or delivery shall be made unless and until
the person requesting such issuance has paid to the Corporation the amount of
any such tax, or has established, to the satisfaction of the Corporation, that
such tax has been paid.
8. Consolidation, Merger. In case the Corporation shall enter into
any consolidation or merger transaction in which the outstanding shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series C Junior
Convertible Preferred Stock shall at the same time be converted into the right
to receive an amount per share equal to $10.00, and, in connection with any such
transaction where appraisal rights are available to the holders of the Series C
Junior Convertible Preferred Stock under Section 262 of the General Corporation
Law of the State of Delaware, each such share shall be deemed to have a fair
value of $10.00 per share for purposes thereof.
9. Ranking. The Series C Junior Convertible Preferred Stock shall
rank on a parity with the Series B Junior Participating Preferred Stock, par
value $0.00001 per share, of the Corporation as to the distribution of assets
upon liquidation, dissolution or winding up. The Series C Junior Convertible
Preferred Stock shall rank junior to all other series of Preferred Stock as to
the distribution of assets upon liquidation, dissolution or winding up, unless
the terms of any such series shall provide otherwise, and shall rank senior to
the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series C Junior
Convertible Preferred Stock are outstanding, the Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series C Junior Convertible Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds of the outstanding
shares of Series C Junior Convertible Preferred Stock, voting separately as a
class.
11. Fractional Shares. Series C Junior Convertible Preferred Stock
may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights, if
any, participate in distributions and to have the benefit of all other rights of
holders of Series C Junior Convertible Preferred Stock.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate this
1st day of December 1, 2001.
QUANTA SERVICES, INC.
By:
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Name: Xxxx X. Xxxxxx
Title: Vice President - General Counsel
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