EXHIBIT 10.13
INVESTOR'S RIGHTS AGREEMENT
THIS INVESTOR'S RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of September 21, 1999, by and between Quanta Services, Inc., a Delaware
corporation (the "Company"), and UtiliCorp United Inc., a Delaware corporation
("UtiliCorp").
RECITAL
This Agreement is made pursuant to the Securities Purchase Agreement, dated
as of September 21, 1999, by and between the Company and UtiliCorp (the
"Securities Purchase Agreement"). In order to induce UtiliCorp to enter into
the Securities Purchase Agreement, the Company has agreed to provide the
registration and other rights set forth in this Agreement. Pursuant to the
Securities Purchase Agreement, UtiliCorp will acquire shares of the Company's
Series A Convertible Preferred Stock (the "Preferred Stock") which will entitle
UtiliCorp to convert the Preferred Stock into shares of Common Stock, par value
$0.00001 per share, of the Company. The execution and delivery of this Agreement
shall occur contemporaneously with the Closing (as defined in the Securities
Purchase Agreement).
AGREEMENT
The parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Capitalized terms used herein without definition
shall have the meanings given to them in the Securities Purchase Agreement. The
terms set forth below are used herein as so defined:
"AAA" has the meaning specified therefor in Section 5.1 of this Agreement.
"Affiliate" of any Person shall mean:
(a) For purposes of Article II, (i) any Person directly or indirectly
controlled by, controlling or under common control with such first Person,
(ii) any director or officer of such first Person or of any Person referred
to in clause (i) above and (iii) if any Person in clause (i) above is an
individual, any member of the immediate family (including parents, spouse
and children) of such individual and any trust whose principal beneficiary
is such individual or one or more members of such immediate family and any
Person who is controlled by any such member or trust. For purposes of this
definition, any Person which owns directly or indirectly 20% or more of the
securities having ordinary voting power for the election of directors or
other governing body of a corporation or 20% or more of the partnership or
other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to
"control" (including, with its correlative meanings, "controlled by" and
"under common control with") such corporation or other Person; and
(b) For purpose of Article III, (i) any Subsidiary of such Person or (ii) a
Parent of such Person.
"Beneficial Ownership," "Beneficial Owner," and "Beneficially Own" have the
meanings ascribed to such terms in Rule 13d-3 under the Exchange Act.
"Commission" means the United States Securities and Exchange Commission.
"Common Stock" means the common stock, par value $0.00001 per share, of the
Company.
"Company" has the meaning specified therefor in the introductory paragraph
of this Agreement.
"Competitor" means (a) a provider for third parties of specialized
contracting and maintenance services, primarily for electric,
telecommunications, cable television, natural gas, and transportation
infrastructure (and with respect to natural gas and transportation
infrastructure, only if and when such business lines are a significant part of
the Company's overall business) and (b) in the United States and in other
countries, but only in any of such other countries if and when the Company
develops a substantial market for its services in such country.
"Conversion Shares" means the shares of Common Stock issuable on conversion
of the Preferred Stock.
"Enron Holders" has the meaning specified therefor in Section 2.1(d) of
this Agreement.
"Enron Registration Rights Agreement" has the meaning specified therefor in
Section 2.1(d) of this Agreement.
"Dispute" has the meaning specified therefor in Section 5.1 of this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Holder" means the record holder of any Registrable Securities.
"Inspectors" has the meaning specified therefor in Section 2.3(g) of this
Agreement.
"Losses" has the meaning specified therefor in Section 2.8 of this
Agreement.
"New Securities" has the meaning specified therefor in Section 3.2(b) of
this Agreement.
"Other Holders" has the meaning specified therefor in Section 2.1(d) of
this Agreement.
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"Parent" means any corporation or other legal entity which at the time
directly or indirectly controls at least a majority of the equity of such entity
having by the terms thereof ordinary voting power to elect a majority of the
board of directors, managers, general partner(s), or other, equivalent governing
body of such entity (irrespective of whether or not at the time equity of any
other class or classes of such entity shall have or might have voting power by
reason of the happening of any contingency).
"Person" means any individual, corporation, company, voluntary association,
partnership, joint venture, trust, limited liability company, unincorporated
organization, government or any agency, instrumentality or political subdivision
thereof, or any other form of entity.
"Pre-Emptive Purchasers" has the meaning specified therefor in Section 3.1
of this Agreement.
"Pre-Emptive Right" has the meaning specified therefor in Section 3.1 of
this Agreement.
"Preferred Stock" has the meaning specified therefor in the Recital of this
Agreement.
"Proportionate Number" has the meaning specified therefor in Section 3.2(a)
of this Agreement.
"Records" has the meaning specified therefor in Section 2.3(g) of this
Agreement.
"Registrable Securities" means the Conversion Shares and any other shares
of Common Stock (or securities convertible into Common Stock) acquired by
UtiliCorp in privately-negotiated or open market transactions as contemplated by
the parties until such time as such securities cease to be Registrable
Securities pursuant to Section 1.2 hereof.
"Registration Expenses" has the meaning specified therefor in Section
2.7(a) of this Agreement.
"Registration Statement" has the meaning specified therefor in Section
2.1(b) of this Agreement.
"Requesting Holder(s)" has the meaning specified therefor in Section 2.1(a)
and (b), as applicable, of this Agreement.
"Request Notice" has the meaning specified therefor in Section 2.1(a) this
Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Securities Purchase Agreement" has the meaning specified therefor in the
Recital of this Agreement.
"Selling Expenses" has the meaning specified therefor in Section 2.7(a) of
this Agreement.
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"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a Registration Statement.
"Then Existing Shares" has the meaning specified therefor in Section 3.2(a)
of this Agreement.
"Transfer" has the meaning specified therefor in Section 4.1 of this
Agreement.
"UtiliCorp" has the meaning specified therefor in the introductory
paragraph of this Agreement.
"Voting Securities" has the meaning specified therefor in Section 2.1(d) of
this Agreement.
SECTION 1.2 REGISTRABLE SECURITIES. Any Registrable Security will cease to be
a Registrable Security when (a) a Registration Statement covering such
Registrable Security has been declared effective by the Commission and such
Registrable Security has been sold or disposed of pursuant to such effective
Registration Statement; (b) such Registrable Security is disposed of pursuant to
Rule 144 (or any similar provision then in force) under the Securities Act; (c)
such Registrable Security is eligible to be, and at the time of determination
can be, disposed of pursuant to paragraph (k) of Rule 144 (or any similar
provision then in force) under the Securities Act; or (d) such Registrable
Security is held by the Company or one of its subsidiaries.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 DEMAND REGISTRATION.
(a) Request for Registration. After the expiration of 180 calendar days after
the Closing Date, any Holder or Holders who collectively Beneficially Own
at least 50% of the Registrable Securities may request (a "Request Notice")
the Company to register under the Securities Act all or any portion of the
Registrable Securities that are held by such Holder or Holders
(collectively, the "Requesting Holder") for sale in the manner specified in
the Request Notice.
(b) Company's Obligations. Promptly following receipt of a Request Notice, the
Company shall (i) notify each Holder (except the Requesting Holder) of the
receipt of a Request Notice and (ii) shall use its commercially reasonable
efforts to effect such registration (including, without limitation,
preparing and filing a registration statement under the Securities Act
(each such registration statement, a "Registration Statement") effecting
the registration under the Securities Act, for public sale in accordance
with the method of disposition specified in such Request Notice) of the
Registrable Securities specified in the Request Notice (and in any notices
that the Company receives from other Holders no later than the 15th
calendar day after receipt of the notice sent by the Company) (such other
Holders and the Requesting Holders, the "Requesting Holders"). If such
method of disposition shall be an underwritten public offering, the Company
may designate the managing underwriter of such offering, subject to the
approval of the Requesting Holders holding a majority of the Registrable
Securities to be registered,
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which approval shall not be withheld unreasonably. The Company shall be
obligated to register Registrable Securities pursuant to this Section 2.1
on one occasion only.
(c) Deferral by Company. If the Company has received a Request Notice, whether
or not a Registration Statement with respect thereto has been filed or has
become effective, or an event referred to in Section 2.3(e) has occurred,
and the Company furnishes to the Requesting Holders a copy of a resolution
of the Board of Directors of the Company certified by the Secretary of the
Company stating that in the good faith judgment of the Board of Directors
it would not be in the best interest of the Company's stockholders for such
Registration Statement (i) to be filed on or before the date such filing
would otherwise be required hereunder, (ii) to become effective or (iii) to
be updated by post-effective amendment or prospectus supplement because (A)
such action would materially interfere with a significant acquisition,
corporate reorganization or other similar transaction involving the
Company, (B) such action would require premature disclosure of material
information that the Company has a bona fide business purpose for
preserving as confidential, or (C) the Company is unable to comply with
requirements of the Commission, the Company shall have the right, but not
more than once in any 365-day period with respect to any Request Notice, to
defer such filing or effectiveness for such period as may be reasonably
necessary (which period shall not, in any event, exceed 90 calendar days
from the date the response period for Holders pursuant to Section 2.1(b)
expires).
(d) Participation Rights of Company and Others. The Company shall be entitled
to include in any Registration Statement filed pursuant to this Section
2.1, for sale in accordance with the method of disposition specified by the
Requesting Holder, securities of the Company entitled to vote generally in
the election of directors (or any securities convertible into or
exchangeable for or exercisable for the purchase of securities so entitled
generally to vote in the election of directors) (collectively, "Voting
Securities") to be sold by the Company for its own account, except as and
to the extent that, in the opinion of the managing underwriter (if such
method of disposition shall be an underwritten public offering), such
inclusion would materially jeopardize the successful marketing of the
Registrable Securities to be sold. Any Person other than a Holder (the
"Other Holders") entitled to piggy-back registration rights with respect to
a Registration Statement filed pursuant to this Section 2.1 may include
Voting Securities of the Company with respect to which such rights apply in
such Registration Statement for sale in accordance with the method of
disposition specified by the Requesting Holder, except and to the extent
that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
materially jeopardize the successful marketing of the Registrable
Securities to be sold. Except as provided in this subsection (d) and in
Section 2.6 of this Agreement, the Company will not effect any other
registration of its Voting Securities (except with respect to Registration
Statements (i) on Form S-4 or S-8 or any forms succeeding thereto for
purposes permissible under such forms as of the date hereof or (ii) filed
in connection with an exchange offer or an offering of securities solely to
the Company's existing stockholders or such other Registration Statements
(A) for the resale of shares issued pursuant to an employee stock ownership
trust or other benefit plan of a business acquired in an acquisition by the
Company or (B) in connection with non-underwritten resales of securities
issued to owners of a business acquired in an acquisition by the Company),
whether for its own account or that of any Other Holder other than holders
of "Registerable Securties" (as such term is defined in that certain
Registration Rights Agreement, dated September 29, 1998, between Joint
Energy Development Investments II Limited Partnership, Enron Capital &
Trade Resources Corp. and
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the Company, as amended (the "Enron Registration Rights Agreement")) under
the Enron Registration Rights Agreement (the "Enron Holders"), from the
date of receipt of a Request Notice requesting the registration of an
underwritten public offering until the completion or abandonment of the
distribution by the underwriters of all securities thereunder; provided,
however, such restricted period shall not extend beyond the date 90
calendar days subsequent to the effective date of such Registration
Statement.
(e) Prohibition on Future Grants. From and after the date of this Agreement
and until no Registrable Securities remain outstanding, the Company shall
not grant any demand registration rights to any Person unless such rights
are expressly made subject to the right of the Holders to include an equal
number of shares of the Registrable Securities along with the other
Person's shares in any registration relating to an underwritten public
offering, except and to the extent that, in the opinion of the managing
underwriter, the inclusion of all shares requested to be registered by all
Persons holding registration rights, would materially jeopardize the
successful marketing of the securities (including the Registrable
Securities) to be sold.
SECTION 2.2 PIGGY-BACK REGISTRATION.
(a) Company Notice. If the Company proposes to register any Voting Securities
under the Securities Act for sale to the public for cash, whether for its
own account or for the account of Other Holders or both (except with
respect to Registration Statements on Forms S-4 or S-8 or any forms
succeeding thereto for purposes permissible under such forms as of the date
hereof or filed in connection with an exchange offer or an offering of
securities solely to the Company's existing stockholders), each such time
it will give written notice to all Holders of its intention to do so no
less than 20 calendar days prior to the anticipated filing date.
(b) Request. Upon the written request of any Holder received by the Company no
later than the 15th calendar day after receipt by such Holder of the notice
sent by the Company, to register, on the same terms and conditions as the
securities otherwise being sold pursuant to such registration, any of its
Registrable Securities (which request shall state the intended method of
disposition thereof), the Company will use its commercially reasonable
efforts to cause the Registrable Securities as to which registration shall
have been so requested to be included in the securities to be covered by
the Registration Statement proposed to be filed by the Company, on the same
terms and conditions as any similar securities included therein, all to the
extent requisite to permit the sale or other disposition by each Holder (in
accordance with its written request) of such Registrable Securities so
registered; provided, however, that the Company may at any time, in its
sole discretion and without the consent of any Holder, abandon the proposed
offering in which any Holder had requested to participate.
(c) Underwriter's Cut-Back. The number of Registrable Securities to be
included in such a registration may be reduced or eliminated if and to the
extent, in the case of an underwritten offering, the managing underwriter
shall render to the Company its opinion that such inclusion would
materially jeopardize the successful marketing of the securities (including
the Registrable Securities) proposed to be sold therein; provided, however,
that (a) in the case of a Registration Statement filed pursuant to the
exercise of demand registration rights of any Other Holders, priority shall
be given in the following manner of allocation: (i) first, to the Other
Holders demanding such registration; (ii) then equally (on a share-for-
share basis) to the Holders
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and Enron Holders; (iii) then to the Company; and (iv) then to Other
Holders or other stockholders of the Company desiring to participate with
the Company's consent (other than the Other Holders entitled to participate
under clause (i) or (ii)), and (b) in the case of a Registration Statement
the filing of which is initiated by the Company, priority shall be given in
the following order of allocation: (i) first to the Company and (ii) then
equally (on a share-for-share basis) to the Holders and Other Holders. In
the event that the number of Registrable Securities to be included in a
registration is to be reduced as provided above, within 10 business days
after receipt by each Holder proposing to sell Registrable Securities
pursuant to the registered offering of the opinion of such managing
underwriter, all such Selling Holders may allocate among themselves the
number of shares of such Registrable Securities which such opinion states
may be distributed without adversely affecting the distribution of the
securities covered by the Registration Statement or, if less, the number of
such shares allocable to Holders of Registrable Securities after reduction
for any allocations to the Company or Other Holders in accordance with the
priority provisions set forth in the preceding sentence, and if such
Holders are unable to agree among themselves with respect to such
allocation, such allocation shall be made in proportion to the respective
numbers of shares specified in their respective written requests.
(d) Prohibition on Future Grants. From and after the date of this Agreement
and until no Registrable Securities remain outstanding, the Company shall
not grant any piggy-back registration rights to any Person unless such
rights are expressly made subject to the prior right of Holders to include
their Registrable Securities on a pro-rata basis in any registration
relating to an underwritten public offering, except and to the extent that,
in the opinion of the managing underwriter, the inclusion in the offering
of all shares requested to be registered by all Persons holding
registration rights would materially jeopardize the successful marketing of
the securities (including the Registrable Securities) to be sold.
SECTION 2.3 REGISTRATION PROCEDURES. If and whenever the Company is required
pursuant to this Agreement to effect the registration of any of the Registrable
Securities under the Securities Act, the Company will, as expeditiously as
possible:
(a) prepare and file as promptly as reasonably possible with the Commission a
Registration Statement, on a form available to the Company, with respect to
such securities (which filing shall be made within 30 calendar days after
the receipt by the Company of a Request Notice) and use its commercially
reasonable efforts to cause such Registration Statement to become and
remain effective for the period of the distribution contemplated thereby
(determined pursuant to subsection (g) below);
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective for the
distribution period (determined pursuant to subsection (g) below) and as
may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement;
(c) furnish to each Selling Holder and to each underwriter such number of
copies of the Registration Statement and the prospectus included therein
(including each preliminary prospectus and each document incorporated by
reference therein to the extent then
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required by the rules and regulations of the Commission) as such Persons
may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities covered by such Registration
Statement;
(d) if applicable, use its commercially reasonable efforts to register or
qualify the Registrable Securities covered by such Registration Statement
under the securities or blue sky laws of such jurisdictions as the Selling
Holders or, in the case of an underwritten public offering, the managing
underwriter, shall reasonably request, provided that the Company will not
be required to qualify generally to transact business in any jurisdiction
where it is not then required to so qualify or to take any action which
would subject it to general service of process in any such jurisdiction
where it is not then so subject;
(e) immediately notify each Selling Holder and each underwriter, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in such Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing and as promptly as practicable amend or supplement the prospectus
or take other appropriate action so that the prospectus does not include 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 in the light of the circumstances then existing;
(f) in the case of an underwritten public offering, furnish upon request, (i)
on the date that Registrable Securities are delivered to the underwriters
for sale pursuant to such Registration Statement, an opinion of counsel for
the Company dated as of such date and addressed to the underwriters and to
the Selling Holders, stating that such Registration Statement has become
effective under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the Registration
Statement, the related prospectus, and each amendment or supplement thereof
comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations thereunder of the
Commission (except that such counsel need express no opinion as to the
financial statements, or any expertized schedule, report or information
contained or incorporated therein) and (C) to such other effects as may
reasonably be requested by counsel for the underwriters, and (ii) on the
effective date of the Registration Statement and on the date that
Registrable Securities are delivered to the underwriters for sale pursuant
to such Registration Statement, a letter dated such dates from the
independent accountants retained by the Company, addressed to the
underwriters and, if available, to the Selling Holders, stating that they
are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of
the Company and the schedules thereto that are included or incorporated by
reference in the Registration Statement or the prospectus, or any amendment
or supplement thereof, comply as to form in all material respects with the
applicable requirements of the Securities Act and the published rules and
regulations thereunder, and such letter shall additionally address such
other financial matters (including information as to the period ending no
more than five business days
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prior to the date of such letter) included in the Registration Statement in
respect of which such letter is being given as the underwriters may
reasonably request;
(g) make available for inspection by one representative of the Selling Holders,
designated by a majority thereof, any underwriter participating in any
distribution pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by such representative of the Selling
Holders or underwriter (the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), and cause the Company's officers, directors
and employees to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement; provided,
however, that with respect to any Records that are confidential, the
Inspectors shall take such action as the Company may reasonably request in
order to maintain the confidentiality of the Records. For purposes of
subsections (a) and (b) above with respect to demand registration only, the
period of distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until the earlier of
(a) the date each underwriter has completed the distribution of all
securities purchased by it or (b) the date 90 calendar days subsequent to
the effective date of such Registration Statement, and the period of
distribution of Registrable Securities in any other registration shall be
deemed to extend until the earlier of the sale of all Registrable
Securities covered thereby or one year;
(h) cause all such Registrable Securities registered pursuant to this Agreement
to be listed on each securities exchange on which similar securities issued
by the Company are then listed;
(i) use its commercially reasonable efforts to keep effective and maintain for
the period specified in subsection (g) a registration, qualification,
approval or listing obtained to cover the Registrable Securities as may be
necessary for the Selling Holders to dispose thereof and shall from time to
time amend or supplement any prospectus used in connection therewith to the
extent necessary in order to comply with applicable law;
(j) use its commercially reasonable efforts to cause the Registrable Securities
to be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and operations of
the Company to enable the Selling Holders to consummate the disposition of
such Registrable Securities; and
(k) enter into customary agreements and take such other actions as are
reasonably requested by the Selling Holders or the underwriters, if any, in
order to expedite or facilitate the disposition of such Registrable
Securities.
Each Selling Holder, upon receipt of notice from the Company of the
happening of any event of the kind described in subsection (e) of this Section
2.3, shall forthwith discontinue disposition of the Registrable Securities until
such Selling Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subsection (e) of this Section 2.3 or until it is
advised in writing by the Company that the use of the prospectus may be resumed,
and has received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus, and, if so directed by the Company,
such Selling Holder will, or will request the managing underwriter or
underwriters, if any, to deliver to the Company (at the Company's
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expense) all copies in their possession or control, other than permanent file
copies then in such Selling Holder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice, the time periods mentioned in subsection (g)
of this Section 2.3 shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when each Selling Holder shall have received the copies of the supplemented
or amended prospectus contemplated by subsection (e) of this Section 2.3 hereof
or the notice that they may resume use of the prospectus.
In connection with each registration hereunder with respect to an
underwritten public offering, the Company and each Selling Holder agrees to
enter into a written agreement with the managing underwriter or underwriters
selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an arrangement
between underwriters and companies of the Company's size and investment stature.
SECTION 2.4 COOPERATION BY SELLING HOLDERS. The Company shall have no
obligation to include in such Registration Statement shares of a Selling Holder
who has failed to timely furnish such information which, in the written opinion
of counsel to the Company, is reasonably required in order for the Registration
Statement to comply with the Securities Act.
SECTION 2.5 RESTRICTIONS ON PUBLIC SALE BY SELLING HOLDERS OF REGISTRABLE
SECURITIES. To the extent not inconsistent with applicable law, including
insurance codes, each Selling Holder of Registrable Securities that is included
in a Registration Statement which registers Registrable Securities pursuant to
this Agreement agrees not to effect any public sale or distribution of the issue
being registered (or any securities of the Company convertible into or
exchangeable or exercisable for securities of the same type as the issue being
registered) during the 14 business days before, and during the 90 calendar day
period beginning on, the effective date of a Registration Statement filed by the
Company (except as part of such registration), but only if and to the extent
requested in writing (with reasonable prior notice) by the managing underwriter
or underwriters in the case of an underwritten public offering by the Company of
securities of the same type as the Registrable Securities, provided that the
duration of the foregoing restrictions shall be no longer than the duration of
the shortest restriction imposed by the underwriters on the officers or
directors or any other stockholder of the Company on whom a restriction is
imposed; and, provided further that to the extent the Selling Holders do not
participate in the underwritten public offering, the period of time for which
the Company is required to keep any other Registration Statement which includes
Registrable Securities that is effective concurrently with the holdback period
described above continuously effective shall be increased by a period equal to
such requested holdback period.
SECTION 2.6 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. To the extent required
by an underwriter in an underwritten public offering, the Company agrees not to
effect on its own behalf any public sale or distribution of any securities
similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, during the 14 business days
before, and during the 90 calendar day period beginning on, the effective date
of any Registration Statement in which the Selling Holders of Registrable
Securities are participating except pursuant to such Registration Statement or a
Registration Statement on Form S-8 or Form S-4 or such other Registration
Statements for (a) the resale of shares issued pursuant
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to an employee stock ownership trust or other benefit plan of a business
acquired in an acquisition by the Company or (b) in connection with non-
underwritten commitments to register the resale of securities issued to owners
of a business acquired in an acquisition by the Company. This section applies to
the demand registration right only.
SECTION 2.7 EXPENSES.
(a) Certain Definitions. "Registration Expenses" means all expenses incident
to the Company's performance under or compliance with this Agreement,
including, without limitation, all registration and filing fees, blue sky
fees and expenses, printing expenses, listing fees, fees and disbursements
of counsel and independent public accountants for the Company, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, costs of insurance and reasonable out-of-
pocket expenses, including, without limitation, all reasonable expenses
incurred directly by the Selling Holders for one legal counsel, but
excluding any Selling Expenses. "Selling Expenses" means all underwriting
fees, discounts and selling commissions allocable to the sale of the
Registrable Securities.
(b) Parties' Obligations. The Company will pay all Registration Expenses in
connection with each Registration Statement filed pursuant to this
Agreement, whether or not the Registration Statement becomes effective, and
the Selling Holders shall pay all Selling Expenses in connection with any
Registrable Securities registered pursuant to this Agreement.
SECTION 2.8 INDEMNIFICATION.
(a) By the Company. In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company
will indemnify and hold harmless each Selling Holder thereunder and each
underwriter, pursuant to the applicable underwriting agreement with such
underwriter, of Registrable Securities thereunder and each Person, if any,
who controls such Selling Holder or underwriter within the meaning of the
Securities Act and the Exchange Act, against any losses, claims, damages or
liabilities (including reasonable attorneys' fees) (collectively,
"Losses"), joint or several, to which such Selling Holder or underwriter or
controlling Person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement under which such Registrable Securities were registered under the
Securities Act pursuant to this Agreement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof,
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 not misleading, and will reimburse each such Selling
Holder, each such underwriter and each such controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Loss or actions; provided, however,
that the Company will not be liable in any such case if and to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by such Selling
Holder, such underwriter or such controlling Person in writing specifically
for use in such Registration Statement or prospectus.
11
(b) By the Selling Holder(s). Each Selling Holder agrees to indemnify and hold
harmless the Company, its directors, officers, employees and agents and
each Person, if any, who controls the Company within the meaning of the
Securities Act or of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Selling Holder, but only with respect to
information regarding such Selling Holder furnished in writing by or on
behalf of such Selling Holder expressly for inclusion in any Registration
Statement or prospectus relating to the Registrable Securities, or any
amendment or supplement thereto; provided, however, that the liability of
such Selling Holder shall not be greater in amount than the dollar amount
of the proceeds (net of any Selling Expenses) received by such Selling
Holder from the sale of the Registrable Securities giving rise to such
indemnification.
(c) Notice. Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to
notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party other than under this Section 2.8. In
any action brought against any indemnified party, it shall notify the
indemnifying party of the commencement thereof. The indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to assume
and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 2.8 for any legal
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that, (i) if the
indemnifying party has failed to assume the defense and employ counsel or
(ii) if the defendants in any such action include both the indemnified
party and the indemnifying party and counsel to the indemnified party shall
have concluded that there may be reasonable defenses available to the
indemnified party that are different from or additional to those available
to the indemnifying party or if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, then the indemnified party shall have the right to select a separate
counsel and to assume such legal defense and otherwise to participate in
the defense of such action, with the reasonable expenses and fees of such
separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) Contribution. If the indemnification provided for in this Section 2.8 is
held by a court or government agency of competent jurisdiction to be
unavailable to the Company or the Selling Holders or is insufficient to
hold them harmless in respect of any Losses, then each such indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
Losses as between the Company on the one hand and each Selling Holder on
the other, in such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and of each Selling Holder on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations; provided,
however, that in no event shall a Selling Holder be required to contribute
an aggregate amount in excess of the dollar amount of proceeds (net of
Selling Expenses) received by such Selling Holder from the sale of
Registrable Securities giving rise to such indemnification. The relative
fault of the Company on the one
12
hand and each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
has been made by, or relates to, information supplied by such party, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person
who is not guilty of such fraudulent misrepresentation.
SECTION 2.9 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission that may permit the sale of
the Registrable Securities to the public without registration, the Company
agrees to use commercially reasonable efforts to:
(a) Make and keep public information regarding the Company available, as those
terms are understood and defined in Rule 144 of the Securities Act, at all
times from and after the Closing Date;
(b) File with the Commission in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act at
all times from and after the Closing Date; and
(c) So long as a Holder owns any Registrable Securities, furnish to the Holder
forthwith upon written request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any such securities
without registration.
SECTION 2.10 TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register Registrable Securities granted to UtiliCorp by the
Company under this Article II may be transferred or assigned by UtiliCorp to a
transferee or assignee of such Registrable Securities that is an Affiliate of
UtiliCorp, provided that the Company is given written notice prior to said
transfer or assignment, stating the name and address of such Affiliate and
identifying the securities with respect to which such registration rights are
being transferred or assigned, and, provided further, that the Affiliate assumes
in writing the obligations of UtiliCorp under this Agreement. Such registration
rights shall not otherwise be transferable.
SECTION 2.11 REGISTRABLE SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. In
determining whether the Holders of the required amount of Registrable Securities
have concurred in any direction, amendment, supplement, waiver or consent,
Registrable Securities owned by the Company or one of its Affiliates shall be
disregarded.
ARTICLE III
PRE-EMPTIVE RIGHT
SECTION 3.1 PRE-EMPTIVE RIGHT. Subject to Section 3.5 hereof, the Company
hereby grants to each Holder (the "Pre-Emptive Purchasers") an irrevocable right
to purchase a Proportionate Number (as defined in Section 3.2(a)) of shares of
Common Stock in respect of the
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issuance or sale (or deemed issuance or sale) by the Company, from time to time
during each fiscal quarter of the Company, of New Securities to third parties
(the "Pre-Emptive Right"). The Pre-Emptive Right shall be subject to the
following provisions of this Article III.
SECTION 3.2 CERTAIN DEFINITIONS AND DETERMINATIONS.
(a) Proportionate Number. The "Proportionate Number" of shares of Common Stock
that may be purchased by a Pre-Emptive Purchaser in respect of the
applicable fiscal quarter shall be determined by multiplying (as to each
issuance or sale to each third party) (i) the number of New Securities (as
defined in Section 3.2(b)) issued or sold (or deemed to be issued or sold)
by the Company to such third party during such applicable fiscal quarter of
the Company times (ii) a fraction of which (A) the numerator is the number
of Conversion Shares (on an as converted basis) owned by the Pre-Emptive
Purchaser on the date on which the shares of Preferred Stock were first
issued (collectively, the "Then Existing Shares") and (B) the denominator
is the total number of shares of Common Stock outstanding (assuming full
conversion of all outstanding securities and the full exercise of all
outstanding options, rights, and warrants to acquire Common Stock of the
Company) on the date on which the shares of Preferred Stock were first
issued. For purposes of this Article III, if the Pre-Emptive Purchaser is
not the original holder of the shares of Preferred Stock, then the number
of Conversion Shares (on an as converted basis) deemed owned by such Pre-
Emptive Purchaser on the date on which the shares of Preferred Stock were
first issued shall be the number of Conversion Shares (on an as converted
basis) it acquired from the original holder or other transferor at any time
(but without duplication for successive transfers and retransfers of the
same shares).
(b) "New Securities" shall mean (i) any Voting Capital Stock (as defined in
Section 3.2(c) below) of the Company whether now authorized or not and (ii)
in the case of the issuance or sale of rights, options, or warrants to
purchase such Voting Capital Stock, and securities of any type whatsoever
that are, or may become, convertible into Voting Capital Stock
(collectively, "Capital Stock Equivalents"), the Voting Capital Stock
issued upon the exercise or conversion of such Capital Stock Equivalents;
provided that the term "New Securities" does not include (i) securities
purchased under the Securities Purchase Agreement; (ii) securities issuable
upon conversion or exercise of the Preferred Stock; (iii) securities issued
in connection with any stock split, stock dividend or recapitalization of
the Company; (iv) securities issued upon conversion or exercise of any
currently outstanding Capital Stock Equivalents; or (v) securities issued
upon conversion or exercise of any Capital Stock Equivalents if the Pre-
Emptive Right was provided upon the issuance of such Capital Stock
Equivalent.
(c) "Voting Capital Stock" shall mean Common Stock or other capital stock which
is entitled to vote generally with the Common Stock upon the election of
directors and other matters submitted to a general vote of stockholders.
(d) "Closing Price" shall mean on any particular date (i) the last sale price
per share of the Common Stock on such date on the principal stock exchange
on which the Common Stock has been listed or, if there is no such price on
such date, then the last sale price on such exchange on the date nearest
preceding such date, (ii) if the Common Stock is not listed on any stock
exchange, the final bid price for a share of Common Stock in the over-the-
counter market, as reported by the National Association of Securities
Dealers Automated Quotation System
14
("NASDAQ") at the close of business on such date, or the last sales price
if such price is reported and final bid prices are not available, (iii) if
the Common Stock is not quoted on the NASDAQ, the bid price for a share of
Common Stock in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency
succeeding to its functions of reporting prices), or (iv) if the Common
Stock is no longer publicly traded, as determined in good faith by the
Board of Directors of the Company based upon the price that would be paid
by a willing buyer of the shares at issue, in a sale process designed to
maximize value and attract a reasonable number of participants to provide a
fair determination of such value.
SECTION 3.3 MECHANICS. In the event the Company issues or sells (or is deemed
to issue or sell) New Securities, within two business days after the end of such
fiscal quarter in which the New Securities were issued or sold, the Company
shall give each Pre-Emptive Purchaser written notice of the issuance, describing
the type of New Securities issued or sold, the date of the issuance or sale (or
deemed issuance or sale), the Proportionate Number of shares of Common Stock
related to the New Securities that it may acquire and the aggregate purchase
price payable by it upon exercise of its Pre-Emptive Right (including relevant
details as to the calculation of such purchase price). The purchase price for
each such share of Common Stock shall be equal to the Closing Price of the
Common Stock on the date of issuance or sale (or deemed issuance or sale) of the
corresponding New Security. Each Pre-Emptive Purchaser shall exercise its Pre-
Emptive Right (if at all) by delivering, within 10 business days after the end
of such fiscal quarter in which the New Securities were issued or sold (or
deemed to be issued or sold, (a) notice to the Company stating therein the
quantity of its Proportionate Number of shares of Common Stock to be purchased
and (b) payment to the Company of the aggregate purchase price for such shares
in immediately available funds. Thereupon, the Company shall promptly issue and
deliver such Pre-Emptive Purchaser a certificate or certificates for the number
of shares of Common Stock related to the New Securities which the Pre-Emptive
Purchaser has elected to purchase.
SECTION 3.4 ADJUSTMENTS. The applicable purchase price and each component of
the definition of Proportionate Number shall be adjusted appropriately to
reflect stock dividends, combinations, splits, reclassifications, exchanges,
substitutions or other similar adjustments with respect to the New Securities
issued during the relevant fiscal quarter that occur prior to the exercise of
the applicable Pre-Emptive Right.
SECTION 3.5 TRANSFER OF PRE-EMPTIVE RIGHT. The Pre-Emptive Right set forth in
this Article III may be transferred or assigned by UtiliCorp only to a
transferee or assignee of the Then Existing Shares that is an Affiliate of
UtiliCorp, provided that the Company is given written notice prior to said
transfer or assignment, stating the name and address or the Affiliate and
identifying the securities with respect to which such Pre-Emptive Rights are
being transferred or assigned, and, provided further, that the Affiliate of such
rights assumes in writing the obligations of such Pre-Emptive Purchaser under
this Agreement.
SECTION 3.6 TERMINATION OF PRE-EMPTIVE RIGHT. The Pre-Emptive Right granted
under this Agreement shall terminate on the first to occur of (a) expiration of
the 10-day exercise period after a fiscal quarter in which the Pre-Emptive
Purchaser fails to exercise its Pre-Emptive Right in full or (b) the Pre-Emptive
Purchaser's voluntary or involuntary, direct or indirect
15
transfer, sale, assignment, donation, pledge or other encumbrance of any shares
of Preferred Stock or Conversion Shares (except to an Affiliate).
ARTICLE IV
TRANSFERS OF SHARES
SECTION 4.1 TRANSFERS. Except as otherwise expressly provided herein and
subject to applicable law, a Holder may, voluntarily or involuntarily, directly
or indirectly, sell, transfer, assign, donate, pledge or otherwise encumber or
dispose of any interest in all or any portion of the shares of Preferred Stock
and the Conversion Shares (a "Transfer") without restriction.
SECTION 4.2 SECURITIES LAWS; ASSIGNMENT OF OBLIGATIONS. A Holder shall not
effect any Transfer until:
(a) There is then in effect a Registration Statement covering such proposed
disposition and such disposition is made in accordance with such
Registration Statement; or
(b) Such Holder shall have notified the Company of the proposed disposition and
shall have furnished the Company with a detailed statement of the
circumstances surrounding the proposed disposition, and if reasonably
requested by the Company, such Holder shall have furnished the Company with
an opinion of counsel, reasonably satisfactory to the Company, that such
disposition is exempt from registration under the Securities Act; provided
however, that it is agreed that the Company will not require opinions of
Holder's counsel for transactions made pursuant to Rule 144 except in
unusual circumstances.
SECTION 4.3 TRANSFERS TO COMPETITORS. A Holder may not Transfer any portion of
the Preferred Stock to any Competitor.
SECTION 4.4 LEGEND.
(a) Each certificate representing Preferred Stock shall (unless otherwise
permitted by the provisions of this Agreement) be stamped or otherwise
imprinted with a legend substantially similar to the following (in addition
to any legend required under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD OR OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAW OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO
EFFECTUATE SUCH TRANSACTION.
THE SALE, TRANSFER OR PLEDGE OF THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN INVESTOR'S RIGHTS AGREEMENT BETWEEN THE COMPANY AND
CERTAIN HOLDERS OF ITS SECURITIES, AS THE SAME MAY BE AMENDED AND IN EFFECT FROM
TIME TO TIME. COPIES OF SUCH
16
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
THE SALE, TRANSFER OR PLEDGE OF THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF THE
COMPANY, AS THE SAME MAY BE AMENDED AND IN EFFECT FROM TIME TO TIME. COPIES OF
SUCH CERTIFICATE MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
(b) The Company shall be obligated to reissue promptly unlegended certificates
at the request of any Holder if the Holder shall have obtained an opinion
of counsel at such Holder's expense (which counsel may be counsel to the
Company) reasonably acceptable to the Company to the effect that the
securities proposed to be disposed of may lawfully be so disposed of under
Rule 144(k) (or any successor thereto or substantially equivalent
exemption) without registration, qualification or legend.
SECTION 4.5 IMPROPER TRANSFER. Any attempt to Transfer any Preferred Stock
which is not in accordance with this Agreement shall be null and void, and the
Company shall not give any effect to such attempted Transfer in the records of
the Company.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 DISPUTE RESOLUTION. Any action, dispute, claim or controversy of
any kind now existing or hereafter arising between the Company and a Holder
arising out of, pertaining to this Agreement or the transactions contemplated
hereby (a "Dispute") shall be resolved by binding arbitration in accordance with
the terms hereof. Any party may, by summary proceedings, bring an action in
court to compel arbitration of any Dispute. Any arbitration shall be
administered by the American Arbitration Association (the "AAA") in accordance
with the terms of this Section, the Commercial Arbitration Rules of the AAA,
and, to the maximum extent applicable, the Federal Arbitration Act. Judgment on
any award rendered by an arbitrator may be entered in any court having
jurisdiction. Any arbitration shall be conducted before a panel of three
arbitrators. Such panel shall consist of one person designated by the Company,
one designated by the Holder(s) and one designated by their designees. The
arbitrators designated by the parties are not required to be neutral. If a
party fails to designate an arbitrator within 10 calendar days after the filing
of the Dispute with the AAA, or the parties' arbitrators fail to designate a
third arbitrator within 30 calendar days after the later of their appointments,
such arbitrator shall be appointed by the AAA. An arbitration proceeding
hereunder shall be concluded within 180 calendar days of the filing of the
Dispute with the AAA. Arbitration proceedings shall be conducted in Kansas City,
Missouri. Arbitrators shall be empowered to award sanctions and to take such
other actions as they deem necessary, to the same extent a judge could impose
sanctions or take such other actions pursuant to the Federal Rules of Civil
Procedure and applicable law. No award by the arbitrators shall assess
consequential, punitive or exemplary damages but may assess costs and expenses
in a manner deemed equitable. The arbitrators shall make specific written
findings of fact and conclusions of law. The decision of the arbitrators shall
be final and binding on each party.
17
SECTION 5.2 COMMUNICATIONS. All notices and other communications provided for
or permitted hereunder shall be made in writing by telecopy, courier service or
personal delivery:
(a) if to a Holder, at the most current address given by such Holder to the
Company in accordance with the provisions of this Section 5.2, which
address initially is, with respect to UtiliCorp, the address set forth in
the Securities Purchase Agreement, and
(b) if to the Company, initially at its address set forth in the Securities
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 5.2.
All such notices and communications shall be deemed to have been received
at the time delivered by hand, if personally delivered; when receipt
acknowledged, if telecopied or sent via Internet electronic mail; and when
actually received, if sent by any other means.
SECTION 5.3 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including subsequent holders of Registrable Securities as set forth in Section
5.11.
SECTION 5.4 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
SECTION 5.5 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 5.6 GOVERNING LAW. The laws of the State of Missouri shall govern this
Agreement without regard to principles of conflict of laws.
SECTION 5.7 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting or impairing the validity or enforceability of such provision in any
other jurisdiction.
SECTION 5.8 ENTIRE AGREEMENT. This Agreement, the Strategic Alliance
Agreement, and the Securities Purchase Agreement are intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the rights granted by the Company set forth herein. This
Agreement, the Strategic Alliance Agreement, and the Securities Purchase
Agreement supersede all prior agreements and understandings between the parties
with respect to such subject matter.
SECTION 5.9 ATTORNEYS' FEES. In any action or proceeding brought to enforce
any provision of this Agreement or an arbitration award, the successful party
shall be entitled to
18
recover reasonable attorneys' fees in addition to its costs and expenses and any
other available remedy.
SECTION 5.10 AMENDMENT. This Agreement may be amended only by means of a
written amendment signed by the Company and by a majority of the Holders.
SECTION 5.11 RIGHTS OF ASSIGNEE. Subject to the provisions of Sections 2.10,
3.5 and 4.4 hereof, the rights of an assignee under this Section 5.11 shall be
the same rights granted to the assigning Holder under this Agreement. In
connection with any such assignment, the term "Holder" as used herein shall,
where appropriate to assign the rights and obligations of the assigning Holder
hereunder to such assignee, be deemed to refer to the assignee.
SECTION 5.12 NO PRESUMPTION. In the event any claim is made by a party
relating to any conflict, omission, or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular party
or its counsel.
SECTION 5.13 REFERENCES TO THIS AGREEMENT. References to numbered or lettered
articles, section, and subsections refer to articles, sections, and subsections,
respectively, of this Agreement unless otherwise expressly stated.
* * * *
THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
QUANTA SERVICES, INC.
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Vice President, Secretary and General
Counsel
UTILICORP UNITED INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO
INVESTOR'S RIGHTS AGREEMENT
20
