REGISTRATION RIGHTS AGREEMENT $143,750,000 AGGREGATE PRINCIPAL AMOUNT QUANTA SERVICES, INC. due 2026 BANC OF AMERICA SECURITIES LLC CREDIT SUISSE SECURITIES (USA) LLC dated May 3, 2006
$143,750,000 AGGREGATE PRINCIPAL AMOUNT
QUANTA SERVICES, INC.
3.75% CONVERTIBLE SUBORDINATED NOTES
due 2026
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
CREDIT SUISSE SECURITIES (USA) LLC
dated May 3, 2006
QUANTA SERVICES, INC.
3.75% CONVERTIBLE SUBORDINATED NOTES DUE 2026
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Credit Suisse Securities (USA) LLC
As Representatives of the Initial Purchasers
X.X. Xxxxxx Securities Inc.
Credit Suisse Securities (USA) LLC
As Representatives of the Initial Purchasers
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Quanta Services, Inc., a corporation organized under the laws of the State of Delaware (the
“Company”), proposes to issue and sell to certain purchasers (the “Initial
Purchasers”), for whom you (the “Representatives”) are acting as representatives, its
3.75% Convertible Subordinated Notes due 2026 (the “Notes”), upon the terms set forth in
the Purchase Agreement between the Company and the Initial Purchasers dated April 26, 2006 (the
“Purchase Agreement”) relating to the initial placement (the “Initial Placement”)
of the Notes. The Notes will be convertible into Shares (as defined herein) of the Company together
with the rights (the “Rights”) evidenced by such Common Stock (as defined herein) to the
extent provided in the Rights Agreement (as defined herein), on the terms and subject to the
conditions set forth in the Indenture (as defined herein). To induce the Initial Purchasers to
enter into the Purchase Agreement and to satisfy a condition to your obligations thereunder, the
Company agrees with you for your benefit and the benefit of the holders from time to time of the
Securities (including the Initial Purchasers) (each a “Holder” and, collectively, the
“Holders”), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative thereto.
“Amendment Effectiveness Deadline Date” shall mean the date that is 45 days after the date
such post-effective amendment is required by Section 2(h)(i) to be filed.
“Broker-Dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Closing Date” shall mean the date of first issuance of the Notes.
“Commission” shall mean the Securities and Exchange Commission.
“Common Stock” shall mean the common stock of the Company, par value $0.00001 per share, as it
exists on the date of the Indenture, including the Rights provided in the Rights Agreement, and any
other shares of capital stock or other securities of the Company into which such Common Stock may
be reclassified or changed, together with any and all other securities which may from time to time
be issuable upon conversion of Notes.
“Conversion Rate” shall have the meaning indicated in the Indenture.
“Deferral Notice” shall have the meaning indicated in Section 3(c)(xi)(B) hereof.
“Deferral Period” shall have the meaning indicated in Section 3(c)(xi)(B) hereof.
“Effectiveness Date” shall mean the date of effectiveness or availability of the Shelf
Registration Statement.
“Effectiveness Target Date” shall mean no later than 210 days after the date hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Final Memorandum” shall mean the offering memorandum, dated April 26, 2006, relating to the
Notes, including any and all exhibits thereto and any information incorporated by reference therein
as of such date.
“Holder” shall have the meaning set forth in the preamble hereto.
“Indenture” shall mean the Indenture relating to the Securities, dated as of May 3, 2006,
between the Company and Xxxxx Fargo Bank, National Association, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
“Initial Placement” shall have the meaning set forth in the preamble hereto.
“Initial Purchaser” shall have the meaning set forth in the preamble hereto.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433 under the Act.
“Losses” shall have the meaning set forth in Section 6(d) hereof.
“Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal
amount of Securities registered or to be registered under a Shelf Registration Statement, provided
that Holders of Shares issued upon conversion of Notes shall not be deemed Holders of Shares, but
shall be deemed Holders of the aggregate principal amount of the Notes from which such Shares were
converted.
“NASD Rules” shall mean the Conduct Rules and the By-Laws of the National Association of
Securities Dealers, Inc.
“Notes” shall have the meaning indicated in the preamble hereto.
“Notice and Questionnaire” shall mean a written notice delivered to the Company substantially
in the form attached as Annex A to the Final Memorandum.
“Notice Holder” shall mean, on any date, any Holder of Registrable Securities that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
“Prospectus” shall mean a prospectus included in the Shelf Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective
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registration statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any portion of the
Securities covered by the Shelf Registration Statement, and all amendments and supplements thereto,
including any and all exhibits thereto and any information incorporated by reference therein.
“Purchase Agreement” shall have the meaning indicated in the preamble hereto.
“Registrable Securities” shall mean each Note (each a “Registrable Note”) and each share of
Common Stock issued upon conversion of Notes other than those that have been (A) registered under a
Shelf Registration Statement and disposed of in accordance therewith or (B) distributed to the
public pursuant to Rule 144 under the Act or any successor rule or regulation thereto that may be
adopted by the Commission.
“Registration Default Damages” shall have the meaning set forth in Section 8 hereof.
“Rights” shall have the meaning set forth in the preamble hereto.
“Rights Agreement” shall mean the Amended and Restated Rights Agreement dated as of March 8,
2000, as amended prior to the date hereof, between the Company and American Stock Transfer and
Trust Company.
“Securities” shall mean, collectively, the Notes and the Shares.
“Shares” means the shares of Common Stock into which the Notes are convertible or that have
been issued upon any conversion from Notes into Common Stock.
“Shelf Filing Deadline” shall mean 120 days after the Closing Date.
“Shelf Registration Period” shall have the meaning set forth in Section 2(c) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company
filed or designated pursuant to the provisions of Section 2 hereof which covers some or all of the
Securities on an appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
2. Shelf Registration.
(a) On or prior to the Shelf Filing Deadline, the Company shall cause the Shelf
Registration Statement to be filed, or otherwise designate an existing filing with the
Commission as a Shelf Registration Statement, providing for the registration of, and the
sale on a continuous or delayed basis by the Holders of, all of the Registrable Securities,
from time to time in accordance with the methods of distribution elected by such Holders,
pursuant to Rule 415 under the Act or any similar rule that may be adopted by the
Commission, subject to the terms and conditions hereof;
(b) The Company shall use commercially reasonable efforts to cause the Shelf
Registration Statement to become effective under the Act, or otherwise make available for
use by Holders a previously filed Shelf Registration Statement, no later than the
Effectiveness Target Date;
(c) The Company shall use commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as required by the
Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a
period (the “Shelf Registration Period”) from
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the Effectiveness Date until the earlier of: (w) two years after the last date of the
original issuance of any of the notes, (x) the sale pursuant to the Shelf Registration
Statement or pursuant to Rule 144 under the Securities Act or any similar provision then in
force of all the Registrable Securities, (y) the date when all Registrable Securities cease
to be outstanding and (z) the date when the holders of the Registrable Securities are able
to sell all such securities immediately without restriction pursuant to the volume
limitation provisions of Rule 144 under the Act or any similar provision then in force.
(d) The Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the Effectiveness Date or the effective date
of such amendment or supplement, and any Issuer Free Writing Prospectus, as of the date
thereof, (i) to comply in all material respects with the applicable requirements of the Act;
and (ii) not to contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus and any Issuer Free Writing Prospectus, in the light of the
circumstances under which they were made) not misleading.
(e) Each Holder that becomes a Notice Holder (and provides such additional information
as the Company reasonably may request) no later than 15 days following such Xxxxxx’s receipt
of notice from the Company (via The Depository Trust Company or otherwise) of the Company’s
intent to file, or to designate an existing filing with the Commission as, the Shelf
Registration Statement shall be named as a selling securityholder in the initial Prospectus
made available to Holders under the Shelf Registration Statement.
(f) If the Shelf Registration Statement ceases to be effective for any reason at any
time during the Shelf Registration Period (other than because all Registrable Securities
shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use commercially reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, file an amendment to such
Shelf Registration Statement or file or designate a subsequent Shelf Registration Statement
covering all of the Securities that as of the date of such filing or designation are
Registrable Securities. If such a subsequent Shelf Registration Statement is filed or
designated (and is not already effective), the Company shall use commercially reasonable
efforts to cause the subsequent Shelf Registration Statement to become effective as promptly
as is practicable after such filing or designation and to keep such subsequent Shelf
Registration Statement continuously effective until the end of the Shelf Registration
Period.
(g) The Company shall supplement and amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement, if required by the Act or as reasonably
requested by the Initial Purchasers or by the Trustee on behalf of the Holders of the
Registrable Securities covered by such Shelf Registration Statement.
(h) Each Holder of Registrable Securities agrees to deliver a Notice and Questionnaire
to the Company at least five Business Days prior to any intended distribution by it of
Registrable Securities under the Shelf Registration Statement. From and after the
Effectiveness Date, the Company shall, as promptly as practicable after the date a Notice
and Questionnaire is delivered, and in any event upon the later of (x) 15 Business Days
after such date (but no earlier than 15 Business Days after effectiveness) or (y) 15
Business Days after the expiration of any Deferral Period in effect when the Notice and
Questionnaire is delivered or put into effect within 15 Business Days of such delivery date:
(i) if required by applicable law, file with the Commission a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or an amendment or
supplement to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with applicable
law and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use
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commercially reasonable efforts to cause such post-effective amendment to
become effective under the Act as promptly as is practicable, but in any event by
the Amendment Effectiveness Deadline Date;
(ii) provide such Holder copies of any documents filed pursuant to Section
2(h)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness
under the Act of any post-effective amendment filed pursuant to Section 2(h)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and (iii)
above upon expiration of the Deferral Period in accordance with Section 3(c).
Notwithstanding anything contained herein to the contrary, (i) the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Shelf Registration Statement or related Prospectus and (ii)
the Amendment Effectiveness Deadline Date shall be extended by up to 20 Business
Days from the expiration of a Deferral Period (and the Company shall incur no
obligation to pay Registration Default Damages during such extension) if such
Deferral Period shall be in effect on the Amendment Effectiveness Deadline Date.
3. Registration Procedures. The following provisions shall apply in connection with
the Shelf Registration Statement.
(a) the Company shall:
(i) comply with all the provisions of Section 2(c) hereof and shall use
commercially reasonable efforts to effect such registration to permit the sale of
the Registrable Securities, and pursuant thereto, shall as expeditiously as possible
prepare and file with the Commission a Shelf Registration Statement relating to the
registration on any appropriate form under the Act, or otherwise make available for
use by Holders a previously filed Shelf Registration Statement;
(ii) furnish to each of the Representatives and to one counsel designated in
writing by the Majority Holders, not less than five Business Days prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement and
each amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein and shall use commercially reasonable efforts to reflect in each
such document, when so filed with the Commission, such comments as the
Representatives reasonably propose; and
(iii) include information regarding the Notice Holders and the methods of
distribution they have elected for their Registrable Securities provided to the
Company in Notices and Questionnaires as necessary to permit such distribution by
the methods specified therein.
(b) The Company shall ensure that:
(i) the Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto complies in
all material respects with the Act; and
(ii) the Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) in connection with the Shelf Registration Statement and any Prospectus required by
this Agreement to permit the sale or resale of Registrable Securities, the Company shall:
5
(i) subject to any notice by the Company in accordance with this Section 3(c)
of the existence of any fact or event of the kind described in Section 3(c)(iv)(B)
through (F), use commercially reasonable efforts to keep the Shelf Registration
Statement continuously effective during the Shelf Registration Period;
(ii) upon the occurrence of any event that would cause the Shelf Registration
Statement or the Prospectus contained therein (A) to contain a material misstatement
or omission or (B) not to be effective and usable for resale of Registrable
Securities during the Shelf Registration Period, file promptly a post-effective
amendment to the Shelf Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either clause (A)
or (B), use commercially reasonable efforts to cause any such amendment to become
effective and the Shelf Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable thereafter;
(iii) prepare and file with the Commission such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Shelf Registration Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with the applicable provisions of Rule 424 under the Act in a timely manner; and
comply with the provisions of the Act with respect to the disposition of all
Registrable Securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of distribution
by the sellers thereof set forth or to be set forth in the Shelf Registration
Statement or supplement to the Prospectus;
(iv) advise the Initial Purchasers and selling Holders promptly and, if
requested, to confirm such advice in writing (which notice pursuant to clauses (B)
through (E) below shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for such suspension):
(A) when the Prospectus, any Prospectus supplement, any post-effective amendment or any Issuer
Free Writing Prospectus has been filed with the Commission, and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective,
(B) of any request by the Commission for any amendment or supplement to the Shelf Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the effectiveness of the
Shelf Registration Statement under the Act or of any notice that would prevent its use, or the
institution or threatening of any proceeding for any of the preceding purposes,
(D) of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for offering or sale in any jurisdiction, or the
threatening or initiation of any proceeding for the preceding purpose,
(E) of the existence of any fact or the happening of any event, during the Shelf Registration
Period, that makes any statement of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein (in the case of the Prospectus,
in the light of the circumstances under which they were made) not misleading, or
(F) when any Issuer Free Writing Prospectus includes information that may conflict with the
information contained in the Shelf Registration Statement;
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(v) use commercially reasonable efforts to prevent the issuance of any order
suspending the effectiveness of the Shelf Registration Statement or the
qualification of the Securities therein for sale in any jurisdiction or any notice
that would prevent its use and, if issued, to obtain as soon as possible the
withdrawal thereof;
(vi) furnish to each Notice Holder, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, and, if a
Notice Holder so requests in writing, all material incorporated therein by reference
and all exhibits thereto (including exhibits incorporated by reference therein);
(vii) if requested by any Notice Holders or the Representatives, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such Notice
Holders may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the
Registrable Securities;
(viii) deliver to each Initial Purchaser, Notice Holder, and any sales or
placement agents or underwriters acting on their behalf, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and any amendment
or supplement thereto, and any Issuer Free Writing Prospectus, as such persons may
reasonably request. Subject to any notice by the Company in accordance with this
Section 3(c) of the existence of any fact or event of the kind described in Section
3(c)(iv)(B) through (F), the Company hereby consents to the use of the Prospectus
and any amendment or supplement thereto, and any Issuer Free Writing Prospectus, by
each of the Notice Holders in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto;
(ix) prior to any public offering of Registrable Securities, arrange, if
necessary, for the qualification of the Securities for sale under the laws of such
jurisdictions in the United States as any Holder shall reasonably request and shall
maintain such qualification in effect so long as reasonably required; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to service of process in suits or to taxation, in any such jurisdiction
where it is not then so subject;
(x) cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing Securities to be issued or
sold pursuant to the Shelf Registration Statement free of any restrictive legends
(unless required by applicable securities law) and in such denominations and
registered in such names as Holders may request;
| (xi) | (A) upon the occurrence of any event contemplated by subsection (c)(iv)(E) above, the Company shall promptly (or within the time period provided for by clause (B) hereof, if applicable) use its commercially reasonable efforts to prepare a post-effective amendment to the applicable Shelf Registration Statement or an amendment or supplement to the related Prospectus, or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Securities included therein, such Shelf Registration Statement or Prospectus will not include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and |
(B) upon the occurrence or existence of any pending corporate
development or any other material event that, in the reasonable
judgment of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related
Prospectus or relevant Issuer Free Writing Prospectus, the Company
shall give notice (without notice of the nature
7
or details of such events) (a “Deferral Notice”) to the
Holders that the availability of the Shelf Registration Statement is
suspended and, upon actual receipt of any such notice, each Holder
agrees not to sell any Registrable Securities pursuant to the Shelf
Registration until such Xxxxxx’s receipt of copies of the
supplemented or amended Prospectus provided for in this Section
3(c)(xi), or until it is advised in writing by the Company that the
Prospectus and any applicable Issuer Free Writing Prospectus may be
used, and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
such Prospectus or Issuer Free Writing Prospectus. The period during
which the availability of the Shelf Registration, any Prospectus or
any Issuer Free Writing Prospectus is suspended (the “Deferral
Period”) shall not exceed 45 days in any 90-day period or 120
days in the aggregate in any twelve-month period; provided, however,
if the disclosure relates to a previously undisclosed proposed or
pending material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to impede
its ability to consummate such transaction, the Company may extend
the suspension period from 45 days to 60 days;
(xii) not later than the effective date of the Shelf Registration Statement,
provide CUSIP numbers for the Securities registered under the Shelf Registration
Statement and provide the Trustee with one or more certificates for such Securities,
in a form eligible for deposit with The Depository Trust Company;
(xiii) comply with all applicable rules and regulations of the Commission;
(xiv) cause the Indenture to be qualified under the Trust Indenture Act in a
timely manner;
(xv) make reasonably available for inspection by one or more representatives of
the Notice Holders, designated in writing by the Majority Holders, and any attorney,
accountant or other agent retained by the Majority Holders, all relevant financial
and other records and pertinent corporate documents of the Company and its
subsidiaries as shall be reasonably necessary to enable them to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the Company shall have no obligation to deliver information to any
such representative or other person unless such person shall have executed and
delivered a confidentiality agreement relating to such information in a form
acceptable to the Company;
(xvi) cause the Company’s officers, directors and employees to supply all
relevant information reasonably requested by such representatives of the Holders or
any such attorney, accountant or agent in connection with the Shelf Registration
Statement as is customary for similar due diligence examinations, subject to receipt
of such confidentiality agreement;
(xvii) cause all Common Stock covered by the Shelf Registration Statement to be
listed or quoted, as the case may be, on each securities exchange or automated
quotation system on which the Common Stock is then listed or quoted; and
(xviii) provide to each Notice Holder upon written request each document filed
with the Commission pursuant to the requirements of Section 13 and Section 15 of the
Exchange Act after the effective date of the Shelf Registration Statement, unless
such document is available through the Commission’s XXXXX system.
(d) The Company may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding the Holder and
the distribution of such securities as the Company may from time to time reasonably require
for inclusion in
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such Shelf Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(e) The Company shall cooperate and assist in any filings required to be made with the
NASD by any underwriter, placement or sales agent, or broker or dealer that is required to
be retained in accordance with the NASD Rules in connection with any sales of Securities
pursuant to the Shelf Registration Statement.
4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(h) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence. Each Notice Holder
agrees promptly to furnish to the Company all information required to be disclosed in order to make
the information previously furnished to the Company by such Notice Holder not misleading and any
other information regarding such Notice Holder and the distribution of such Registrable Securities
as the Company may from time to time reasonably request. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the Prospectus delivered by
such Holder in connection with such distribution, that such Prospectus does not as of the time of
such sale contain any untrue statement of a material fact relating to or provided by such Holder or
its plan of distribution and that such Prospectus does not as of the time of such sale omit to
state any material fact relating to or provided by such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in light of the circumstances under which they
were made, not misleading.
5. Registration Expenses. The Company shall bear all of its expenses incurred in
connection with the performance of its obligations hereunder.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of Securities covered
by the Shelf Registration Statement, each Initial Purchaser and each person who controls any
such Holder or Initial Purchaser within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement as originally filed or in any amendment thereof, or in any Issuer
Free Writing Prospectus, any preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Issuer Free Writing Prospectus, any preliminary
Prospectus or the Prospectus, in the light of the circumstances under which they were made)
not misleading, and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein and provided further, that the Company
will not be liable in any such case to the extent that a Holder fails to deliver, at or
prior to the written confirmation of sale, the most recent Prospectus, as amended or
supplemented, if such Prospectus, as amended or supplemented, had been previously furnished
by or on behalf of the Company to such Holder and corrected such untrue statement or
omission or alleged untrue statement or omission of a material fact and the delivery thereof
by such Holder was required by law or any rule or regulation of any applicable stock
exchange. This indemnity agreement shall be in addition to any liability that the Company
may otherwise have.
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(b) Each Holder of Securities covered by the Shelf Registration Statement (including
each Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees
to indemnify and hold harmless the Company, each of its directors, officers and employees
and each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to each such
Holder, against any and all losses, claims, damages or liabilities, joint or several, to
which the Company or such persons may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Shelf Registration Statement as originally filed or in any amendment thereof, or in
any Issuer Free Writing Prospectus, any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Issuer Free Writing Prospectus, any
preliminary Prospectus or the Prospectus, in light of the circumstances under which they
were made) not misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by it in connection with investigating
or defending any such loss, claim, damage, liability or action, but in each case only to the
extent that the untrue statement or omission or alleged untrue statement or omission was
made in reliance upon and in conformity with written information relating to such Xxxxxx
furnished to the Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement shall be
acknowledged by each Notice Holder that is not an Initial Purchaser in such Notice Holder’s
Notice and Questionnaire and shall be in addition to any liability that any such Notice
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 6, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses or the indemnifying
party is otherwise materially prejudiced as a result thereof; and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel (including local counsel) of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel, other than
local counsel if not appointed by the indemnifying party, retained by the indemnified party
or parties except as set forth below); provided however, that such counsel shall be
reasonably satisfactory to the indemnified party. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than one separate firm (in addition to any local counsel) for all such
indemnified parties. Notwithstanding the indemnifying party’s election to appoint counsel
(including local counsel) to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that a conflict
may arise between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses available to
it and/or other indemnified parties that are different from or additional to those available
to the indemnifying party; (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iii) the indemnifying party shall
authorize the indemnified party in writing to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such
10
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6
is unavailable to or insufficient to hold harmless an indemnified party for any reason, then
each applicable indemnifying party shall have a joint and several obligation to contribute
to the aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending loss, claim, liability,
damage or action) (collectively “Losses”) to which such indemnified party may be
subject in such proportion as is appropriate to reflect the relative benefits received by
such indemnifying party, on the one hand, and such indemnified party, on the other hand,
from the Initial Placement and the Shelf Registration Statement which resulted in such
Losses; provided, however, that in no event shall any Initial Purchaser be responsible, in
the aggregate, for any amount in excess of the purchase discount or commission applicable to
such Security received by the Initial Purchasers; provided further, that in no event shall
the Company be responsible, in the aggregate, for any amount in excess of the total net
proceeds from the Initial Placement pursuant to the Purchase Agreement (before deducting
expenses) of the Registrable Securities to which such Losses relate; provided further, that
in no event shall any Holder be responsible, in the aggregate, for any amount in excess of
the amount by which (i) the total price at which the Notes purchased by it were resold
exceeds (ii) the amount of any damages which such Holder has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged omission. If the
allocation provided by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the Initial Placement (before deducting expenses) as
set forth in the Final Memorandum. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions received by the Initial
Purchasers, and benefits received by any other Holders shall be deemed to be equal to the
value of Securities received by such Holder and registered for resale under the Act.
Relative fault shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a Holder within
the meaning of either the Act or the Exchange Act and each director and officer of such
Holder shall have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Act or the Exchange Act, each officer
and other employee of the Company and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 shall remain in full force and effect, regardless
of any investigation made by or on behalf of any Holder or the Company or any of the
indemnified persons referred to in this Section 6, and shall survive the sale by a Holder of
Securities covered by the Shelf Registration Statement.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long as any
Registrable Securities remain outstanding and during any period in which the Company (i) is not
subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any Holder,
to such Holder of Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Registrable
11
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the Exchange
Act, to make all filings required thereby in a timely manner in order to permit resales of such
Registrable Securities pursuant to Rule 144.
8. Registration Defaults.
(a) If, and only if, any of the following events shall occur (each such event, a
“Registration Default”), then the Company shall pay liquidated damages in the form
of additional cash interest (the “Registration Default Damages”) to the Holders of
Registrable Securities as follows:
(i) the Shelf Registration Statement is not filed, or on file, with the
Commission prior to or on the Shelf Filing Deadline, commencing on the day following
the Shelf Filing Deadline and continuing until the day immediately preceding the
filing of the Shelf Registration Statement, Registration Default Damages shall
accrue on the Registrable Securities at a rate of 0.25% per annum for the first 90
days from and including the day following the Shelf Filing Deadline and 0.50% per
annum thereafter; or
(ii) the Shelf Registration Statement has not become effective, or a previously
effective Shelf Registration Statement has not been made available, prior to or on
the Effectiveness Target Date, commencing on the date following the Effectiveness
Target Date and continuing until the day immediately preceding the effectiveness of
the Shelf Registration Statement, Registration Default Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum for the first 90 days from and
including the day following the Effectiveness Target Date and 0.50% per annum
thereafter; or
(iii) the Shelf Registration Statement is filed and has become effective but,
during the Shelf Registration Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose (other than pursuant to Section 3(c)(xi)
hereof) for more than 10 Business Days, commencing on the date following the tenth
Business Day of such ceased effectiveness or failure to be usable and continuing
until the date immediately prior to the cure thereof, Registration Default Damages
shall accrue on the Registrable Securities at a rate of 0.25% per annum for the
first 90 days from and including such date on which the Shelf Registration Statement
ceases to be effective and 0.50% per annum thereafter; or
(iv) if the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period pursuant to Section 3(c)(xi)
hereof, then commencing on the day the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such period and continuing
until the end of such period, Registration Default Damages shall accrue on the
Registrable Notes at a rate of 0.25% per annum for the first 90 days from and
including such date and 0.50% per annum thereafter.
The Registration Default Damages payable as specified above shall be
determined:
(A) in respect of the Registrable Notes, to each holder of Notes as
described in Section 8(a)(i) through (iv); and
(B) in respect of the Registrable Notes submitted for conversion into
Common Stock during the existence of a Registration Default with respect to
the Common Stock, the holder will not be entitled to receive any
Registration Default Damages with respect to such Common Stock but (x) will
be entitled to a conversion rate adjustment, if any, in accordance with the
terms of the Notes as set forth in the Indenture and (y) will receive from
the Company on the settlement date with respect to such conversion, accrued
and unpaid Registration Default Damages on the Registrable Notes calculated
in accordance with paragraph (A) to the Conversion Date (as defined in the
Indenture); and
12
(b) Notwithstanding the foregoing, in no event will Registration Default Damages be
payable in connection with a failure to register the Common Stock for resale. For the
avoidance of doubt, if the Company fails to register both the Notes and the Common Stock for
resale, then the Registration Default Damages shall be payable in connection with the
failure to register the Notes for resale. Further, except as provided in this Section 8,
the Company shall have no liabilities for monetary damages with respect to its registration
obligations hereunder.
(c) The Company shall in no event be required to pay Registration Default Damages in
respect of more than one Registration Default at any one time. Additionally, in no event
will Registration Default Damages accrue at a rate per year in excess of 0.50%.
(d) Any amounts of Registration Default Damages due pursuant to Section 8(a) will be
payable in cash semi-annually in arrears on each April 30 and October 30, with the first
semi-annual payment due on the first such payment date after which a Registration Default
occurs. A Holder will not be entitled to Registration Default Damages as provided in Section
8 hereof, unless such Holder has timely delivered to the Company a duly completed Notice and
Questionnaire, together with such other information reasonably requested of such Holder in
accordance with this Agreement.
9. No Inconsistent Agreements. The Company has not entered into, and agrees not to
enter into, any agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of the Holders of a
majority of the aggregate principal amount of the Registrable Securities outstanding, provided that
the Holders of Shares issued upon conversion of Notes, which Shares are Registrable Securities,
shall not be deemed Holders of Shares, but shall be deemed Holders of the aggregate principal
amount at maturity of Notes from which such Shares were converted; provided, that, with respect to
any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the
Company shall obtain the written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective; provided, further, that
no amendment, qualification, supplement, waiver or consent with respect to Section 8 hereof shall
be effective as against any Holder of Registered Securities unless consented to in writing by such
Holder; and provided further, that the provisions of this Section 10 may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of the Initial Purchasers and each
Holder. Notwithstanding the foregoing (except the foregoing provisos), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities are being sold pursuant to a Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Securities being sold rather than registered under
such Shelf Registration Statement.
11. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing
overnight delivery:
(a) if to a Holder, at the most current address given by such Holder to the Company in
accordance with the provisions of the Notice and Questionnaire, which address initially is,
with respect to each Holder, the address of such Holder maintained by the Registrar under
the Indenture;
(b) if to the Initial Purchasers, initially at the address or addresses set forth in
the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given at the time
delivered by hand, if personally delivered; five Business Days after being deposited in U.S.
first-class mail, postage prepaid, if
13
mailed; when receipt is acknowledged, if transmitted by telecopier; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Notwithstanding the foregoing, the Company may provide notices to the Holders pursuant to any
means permitted by The Depository Trust Company. The Initial Purchasers or the Company by notice
to the other parties may designate additional or different addresses for subsequent notices or
communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all rights
provided to it herein and to receive Registration Default Damages as provided in Section 8 hereof,
in the Indenture or in the Purchase Agreement or granted by law will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agrees to waive in any action for specific performance the defense that a
remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be binding upon the
parties hereto, their respective successors and assigns, including, without the need for an express
assignment or any consent by the Company thereto, subsequent Holders of Securities, and the
indemnified persons referred to in Section 6 hereof. The Company hereby agrees to extend the
benefits of this Agreement to any Holder of Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
14. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
15. Headings. The Section headings used herein are for convenience only and shall not
affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York. The parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.
17. Severability. In the event that any one of more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
18. Securities Held by the Company, etc. Whenever the consent or approval of Holders
of a specified percentage of principal amount of Securities is required hereunder, Securities held
by the Company or its Affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by the Holders of such
required percentage.
14
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the several Initial Purchasers.
| Very truly yours, | ||||
| QUANTA SERVICES, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| BANC OF AMERICA SECURITIES LLC | ||||
| X.X. XXXXXX SECURITIES INC. | ||||
| CREDIT SUISSE SECURITIES (USA) LLC | ||||
| Bank of America Securities LLC | ||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Xxxxxx Xxxxxxxx | ||||
| Managing Director | ||||
| X.X. Xxxxxx Securities Inc. | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxxxx | |||
| Xxxxxxx Xxxxxxxxxxx | ||||
| Vice President | ||||
| Credit Suisse Securities (USA) LLC | ||||
| By: | /s/ Xxxxxx Xxxx | |||
| Xxxxxx Xxxx | ||||
| Director | ||||
[Signature Page to Registration Rights Agreement]
